*Without the need to apply for an extension. 

Working on a Public Holiday – Can an Employee Refuse to Work?  

Under the National Employment Standards (NES) an employee has a right to refuse to work on a public holiday where they have reasonable grounds or an employer’s request for them to work is unreasonable. In determining this, section 114 of the Fair Work Act (FW Act) lists the things that need to be taken into account which includes but is not limited to the nature of the workplace, the employee’s personal circumstances, the employees type of employment (e.g. casual, part-time or full-time) and the amount of notice that was given.  

Any “request” made to an employee must properly provide them with a choice to work or not.

An employer can’t just issue a roster in advance prior to making a request or specifying the roster is a draft. If an employee has been rostered to work without a prior request, employers should advise them the roster is not yet finalised and that the employee has a right to reasonably refuse to work those days. 

If an employer can show they made a reasonable request and a refusal by an employee was unreasonable, they can require them to work. 

Payment – Working on a Public Holiday 

Under the Registered and Licensed Clubs Award 2020 (Clubs Award), where an employee works on a public holiday or during a part-day public holiday they are entitled to a penalty rate of 250%. Club Managers receiving a salary in excess of 50% above the minimum annual rate for their classification however will automatically not have this entitlement apply to them.  

Permanent employees who work on a public holiday must be paid for a minimum of 4 hours. Casuals who work ordinary hours on a public holiday will have the usual causal minimum engagement for the Clubs Award apply (3 hours for bingo callers, 1 hour for fitness instructors and 2 hours for all other employees). If a casual is working overtime on a public holiday however then the minimum engagement is 4 hours.  

Under clause 24.3(b) of the Clubs Award non maintenance and horticultural employees also have the option by agreement to be paid a 150% penalty rate on a public holiday rather than the 250% penalty rate. If done however, the employee will then receive either the equivalent paid hours they worked on the public holiday to their annual leave balance or be given an alternative paid day off in the week the holiday falls, or within 28 days. This is only allowed where there is clear written mutual agreement between employer and employee for this to occur. 

Clubs with employees under a different award or EBA will have to check its provisions for any applicable penalties or other entitlements. 

Clubs with employees who are paid salaries or above award amounts in lieu of penalty rates will need to ensure they are paying their employee sufficiently that pay period to cover applicable public holiday penalty rates etc. 

Payment – Not Working on a Public Holiday 

Under section 116 of the FW Act permanent employees that don’t work on the day of a public holiday but would ordinarily be rostered to work that day are entitled to be paid at their base rate for the ordinary hours they would have worked had they not been absent due to the public holiday. Base rate of pay does not include any loadings, bonuses, overtime, penalty rates etc.  

The above also applies to part day public holidays with an employee entitled to be paid for the hours they would have normally worked that fall in the part-day holiday period. For example, if a permanent employee usually works 4pm-10pm on Tuesdays but they aren’t rostered on Christmas Eve this year, they will be entitled to be paid for the 3 ordinary hours that falls during the part-day public holiday (7pm-10pm). 

If a casual employee does not work on a public holiday, then they are not entitled to any payment. Also, if someone is rostered to work on a public holiday on a day, they don’t normally work but then calls in sick, they do not need to then be paid for that day under section 116. 

Special Additional Provisions for Full-time Employees under the Clubs Award 

In addition to the above, clubs with full-time employees covered by the Clubs Award also need to be aware of clause 31.4 (or if a similar/more generous provision exists in an Enterprise Bargaining Agreement or other award) that sets out an additional entitlement for full-time employees. Under this clause, where a full-time employee has a rostered day off (RDO) fall on a public holiday or part day public holiday (not including Easter Saturday where they only have their ordinary hours rostered on Mon-Fri), they must either: 

• be paid an extra day’s pay; 

• be provided with an alternative paid day off within 28 days; or 

• receive an additional day’s annual leave. 

For part-day public holiday’s clause 31.4 will apply on a pro-rata basis for the number of ordinary hours on the part-day public holiday. 

Clause 31.4 will not apply to club managers who are paid a salary in excess of 50% above the minimum annual rate for their classification or maintenance & horticultural level 1-4 employees who have agreed in writing to a salary of not less than 33% more than the minimum weekly rate for a level 4 employee instead of certain provisions of the Clubs Award applying as per clause 18.4(b). 

Public Holidays and Leave 

If a public holiday falls on a day when someone is on a period of paid leave such as annual or paid personal/carer’s leave then they must be paid for the public holiday and not have hours deducted from their leave balance instead.  

Where someone is on long service leave (LSL) under the Long Service Leave Act 1987 (SA) though this day will still count as a day of LSL as every day after commencement of leave is considered a day of LSL. Also, where someone is on a period of unpaid leave they will not be entitled to payment for a public holiday that falls in this time and if someone takes annual leave during unpaid parental leave and a public holiday falls, the Fair Work Ombudsman’s view is that they won’t be taken to be on annual leave that day but they also won’t get paid for it.  

Lastly to direct an employee to take annual leave during a temporary shutdown period any notice requirements in the relevant award or EBA must be complied with. For example, clause 25.4 of the Clubs Awards requires a written reasonable direction with at least 28 days’ notice (or shorter where mutually agreed) and if an employee does not have sufficient leave to cover the period, they can only be made to take unpaid leave if they agree to this in writing. If no such agreement is reached then for the period an employee does not have annual leave to cover, they either must be given work to do, enter into an agreement to use annual leave in advance or be paid as normal.  

If you have any queries about public holidays, please send these to workplacerelations@clubssa.com.au or call 0448 273 355. 

I would also like to wish all Clubs SA Members and Partners a very happy holidays and new year.