With 2019 already in full swing, we find ourselves looking forward to the year ahead. As is always the case in WA, the first half of the year contains the majority of public holidays. New Year’s Day is already behind us and Australia Day is fast approaching. This means that businesses will need to plan for employee absences and staffing requirements. Doing so requires the knowledge to understand employee entitlements associated with public holidays. A failure to plan ahead could result in a variety of costs; businesses could find themselves short-staffed over a potentially busy period or encounter internal disputes regarding leave and pay entitlements.

National system employees are entitled to payment for national public holidays in accordance with the Fair Work Act 2009 (Cth) (FW Act). If, however, under State or Territory legislation, a day is substituted for a day that would otherwise be a public holiday under the FW Act then the substituted day is considered the public holiday. In Western Australia, the Public and Bank Holidays Act 1972 (WA) (PBH Act) provides guidance on state public holidays and substituted days. This means that employees employed in Western Australia, regardless if they are national system employees or not, will be entitled to the additional state public holidays and substituted days derived from the PBH Act instead of the FW Act.

Australia Day

As stated in the FW Act, the 26th of January, Australia Day, is a national public holiday. However, in the PBH Act, the Australia Day public holiday is taken to be “26th January or, when that day falls on a Saturday or Sunday, the first Monday following the 26th January”, meaning the PBH Act will prevail over the FW Act. This year Australia Day falls on Saturday the 26th of January and in accordance with the PBH Act, Saturday the 26th of January will not be recognised as the public holiday; Monday the 28th of January will instead be substituted and recognised as the public holiday. Therefore, public holiday penalties are only payable for work performed on Monday the 28th of January, provided no arrangement is made to substitute the public holiday. In addition, employees who are absent from work on Monday the 28th of January, who otherwise would have worked if it had not been the public holiday, will be entitled to payment for that day. Saturday the 26th of January will be paid as normal in accordance with the applicable industrial instrument.

Other Key Public Holidays

Over the Easter and ANZAC holiday period, businesses should consider the possibility of receiving multiple leave requests. Good Friday falls on the 19th April, Easter Monday the 22nd April and ANZAC day on the 25th April. Savvy employees may look to take the 23rd, 24th and 26th of April off as annual leave to get up to ten days break in exchange for only three days of leave. This would result in the employees being due payment for the public holidays without having to use any of their annual leave balances for those days. This is because section 89 of the FW Act outlines that “If the period during which an employee takes paid annual leave includes a day or part-day that is a public holiday in a place where the employee is based for work purposes, the employee is not taken to be on paid annual leave on that public holiday.”

Prior to public holidays, businesses should consider communicating to staff clear parameters surrounding the use of leave over this period, such as notice requirements when requesting annual leave. In a small team, it may be reasonable to allow only two members of staff to access annual leave over that period, based on genuine business requirements. Policies and procedures requiring clear notice and evidence for paid personal/carer’s leave should also be in place to discourage employees from abusing their entitlements. Section 107 of the FW Act allows employers to refuse payment of paid personal/carers leave if notice and/or evidence is not provided, but only if the employer has required it in the first instance.

A calendar of the 2019 public holidays in Western Australia can be found here: https://www.commerce.wa.gov.au/labour-relations/public-holidays-western-australia

Please note that the above references to the FW Act will apply to employers and their employees in the national system only. If you are a state system employer, or if you would like more information on this subject or any other matters, please contact the CCI Employee Relations Advice Centre on (08) 9365 7660 or email advice@cciwa.com

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