This year Easter will be celebrated on 19 April (Good Friday), Saturday 20 April, Sunday 21 April (Easter Sunday) and Monday 22 April (Easter Monday). Anzac Day will be on Thursday 25 April.
A common question raised over the years on the TTIA Employers Hotline is what exactly is a public holiday worth and what happens when an employee’s hours vary depending, for instance, on a Thursday compared to a Friday.
The scenario is normally raised where Members have employees working Monday-Thursday doing eight hour days and six hour days on a Friday.
I recall in my early days at TTIA having disputes with the CFMEU including one heard in a federal industrial tribunal on this issue, where they insisted employees had the right to knock off work two hours early on the Thursday before a public holiday on a Friday, otherwise they were being somehow disadvantaged by the calendar.
There have even been cases where unions have claimed two hours overtime because they were required to work their normal 8 hour work day.
Under the Fair Work Act (s116), an employee must pay a worker at the employee’s base rate of pay for the employee’s ordinary hours of work on the day a holiday falls. In this case, the employees’ ordinary hours each Friday are six hours, meaning the employees would be paid six hours pay for the Good Friday public holiday. The employees would be required to work their ordinary contracted hours for Thursday (eight hours). Working eight hours on the Thursday would not attract an overtime penalty rate.
While the ‘facilitative provisions’ of the award permit changing of ordinary hours, or the days on which ordinary hours are to be worked, this can only be done by mutual agreement between the parties. An employee does not have the unilateral right to change ordinary hours.
Payment for holiday not worked
Under the Fair Work Act (s116), an employee is to be paid at their ‘base rate of pay’ for their ordinary hours of work on the day when absent from work on a specified public holiday. Base rate of pay is the 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.
Therefore, payment for a public holiday is based on the ordinary hours for the day provided under the employee’s contract of employment.
Payment for full-time employees working non-standard hours
Another situation arises where a full-time employee works a non- standard 38 hour week. For instance, where an employee works Monday-Thursday their full 38 working week and Friday is a public holiday, they will still be entitled to payment for the public holiday under the terms of the Timber Industry Award.
Does this make sense? ….. absolutely not. The employee doesn’t normally work on the Friday so why should they receive an extra payment. Answer is, it’s in the award and the award at times doesn’t pass the commonsense test and lacks logic.
Members are advised to just be wary of this provision. Remember it doesn’t apply to part-time employees where they don’t normally work on a particular day upon which a public holiday falls, but does apply to full-time employees working a non-standard 38 hour week. This is a critical distinction.
This article was written by Brian Beecroft of TTIA, the industrial relations and safety experts
