One-off Public Holiday

15 September 2022

The Prime Minister has announced a national day of mourning for Queen Elizabeth II, to be held on Thursday, 22 September 2022. This is intended to be a one-off public holiday rather than a recurring one. Tom Earls from Fair Work Lawyers takes us through what this means for businesses.

What does this mean?

Under the National Employment Standards a public holiday includes any day that is declared by the relevant State or Territory governments. At the time of writing, there had been no formal declarations from the State governments, but it is expected that these will occur in due course.

In the event the day is declared a public holiday in the applicable State or Territory, it will be treated in the same way as any other public holiday. This includes:

  • The default position is that employees are entitled to be absent from work on any day that is a public holiday, although an employer may reasonably request an employee to work,
  • Employees (eg. full / part time employees) who are absent on the public holiday are entitled to payment for the public holiday, as with any other public holiday, and
  • Where an employee works on the public holiday, they would be entitled to the penalties / loadings that they would receive on any other public holiday.

Substituting public holidays

Under the many modern awards (eg. the Clerks Award) or enterprise agreements, and in the case of award/agreement free employees, an employer and an individual employee may agree to substitute a public holiday for another day. This would mean work on that day would be treated as an ordinary day, with the substituted day being treated as a public holiday for those workers. Any such agreement must be genuine, and made without pressure or coercion.

If you are unsure whether you can substitute a public holiday for any particular employee or class of employees, you should seek advice.

Commercial implications

For businesses operating on tight timelines or under the threat of liquidated damages, the imposition of an additional (and unexpected) public holiday may cause commercial issues. Many contracts contain the ability to claim extra time and/or costs where there are changes in laws. Clients should carefully consider any contracts they have in place to see if they can claim anything under their contract and, if so, ensure that they claim in the appropriate manner, and within any applicable timeframe.

Every contract is different so clients should seek specific advice in relation to these.

Need more information

The above matters are necessarily general in nature and specific advice must be sought for specific circumstances. If you would like further information in relation to these matters, please contact the team at Fair Work Lawyers.