Everybody loves a three-day weekend. So, don’t be surprised if some employees want to take the Australia Day public holiday on Monday, rather than Tuesday in 2021. Should you give them the green light?
Whether you can substitute a public holiday for another day depends on the applicable modern award or, in the case of an award/agreement-free employee, the Fair Work Act.
Many modern awards allow substitution of public holidays if both an employer and employee agree to the arrangement. The Fair Work Act (s115(3)) also permits the inclusion of such terms in a modern award.
If an award doesn’t contain such a term, then all bets are off. It is simply not allowed, even if you and your employee agree to such an arrangement.
If your employees aren’t covered by an award or agreement, the Fair Work Act (s115(4)) permits such an arrangement if both parties agree to it.
The 2021 Australia Day holiday on Tuesday could pose another issue for employers: what if employees don’t show up for work on the Monday, effectively gifting themselves a four-day weekend?
If they don’t have a valid reason for taking the Monday off, should they be paid for the Australia Day public holiday?
The answer is yes. While an unauthorised absence before or after a public holiday might be grounds for taking disciplinary action, an employee would still be entitled to payment for a public holiday that fell on a day the employee normally works.
Under the Fair Work Act (s116), Australia Day is listed as a public holiday for the purposes of the National Employment Standards. It is also a declared public holiday under the relevant state and territory public holidays legislation.
The Fair Work Act states an employee is paid at their ‘base rate of pay’ for their ordinary hours of work on a day when absent from work on a public holiday. Base rate of pay is an employee’s ordinary rate of pay excluding incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates or any other separately identifiable amounts.
This means an employee is entitled to payment for a public holiday absence if the employee would ordinarily have worked that day.
While unauthorised absence before or after a public holiday may be grounds for taking disciplinary action, an employee would still be entitled to payment for a public holiday that falls on a day the employee normally works.
Marise Donnolley is a journalist and editor with more than 20 years' experience in the media.
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