HABA Re-Outlines Employer and Employee Rights Ahead of 2023 Easter Holiday

The Hair & Beauty Australia Industry Association (HABA) has released an article reminding employers of their holiday rostering rights in the lead up to the 2023 Easter long-weekend. 

The article reflects on the terms set out by The Hair and Beauty Industry Award 2020 that states an employer is able to reasonably assign public holiday working hours to their employees in the instance a business remains open and operating during such hours. 

Similarly, the article reminds employers that employees are similarly able to decline an employer’s request to work on a public holiday “if the refusal is reasonable in the circumstances.”

The holiday period, which runs from Good Friday 7 April to Easter Monday 10 April 2023, consists of four official public holidays in most states (click here for variations for TAS, NT and SA).

The reminder of such rights have come about due to concerns employers are facing regarding employees’ requests for long annual leave periods. This is due to this year’s proximity of Easter to ANZAC Day on 25 April. Employers are encouraged to be wary that they may experience an increase in leave requests for hours falling between 7 to 25 April inclusively.

The below payment and entitlement details have been shared by HABA:

Payment for public holidays

An employee that has ordinary hours that fall on a public holiday is entitled to be paid for these hours with payment made at the employee’s base rate of pay.

The “base rate of pay” of an employee is the rate of pay payable to the employee for his or her ordinary hours of work, but not including any of the following:

  • incentive based payments and bonuses
  • loadings
  • monetary allowances
  • overtime or penalty rates
  • any other separately identifiable amounts

If an employee does not have ordinary hours of work on the public holiday, the employee is not entitled to payment under the National Employment Standards (NES).  For example, an employee would not be entitled to payment if they are:

  • a casual who is not rostered to work on the public holiday; or
  • a part-time employee whose part-time hours do not include the day of the week on which the public holiday occurs.

The Hair and Beauty Industry Award 2020 provides a penalty rate of double time and a half for work performed on a public holiday.

Reasonable requests/refusals to work on a public holiday

The public holiday entitlement is subject to an employer’s right to request that an employee work on a public holiday if the request is reasonable.  An employee, however, does retain the right to refuse such a request if the refusal is reasonable in the circumstances.

The NES sets out a number of considerations to determine whether a request to work or a refusal to work is reasonable.  These include matters such as:

  • the nature of the work performed;
  • the employee’s personal circumstances, including family responsibilities;
  • whether or not there is a reasonable expectation that the employer may request the employee to work on a public holiday;
  • whether or not the employee is entitled to receive penalties for working on a public holiday;
  • the type of employment, for example, part-time or full-time;
  • the amount of notice given by the employer requesting the employee work on a public holiday;
  • the amount of notice given by the employee in refusing such a request; and
  • any other relevant factors.

Unscheduled absence on the day before or after a public holiday

The Fair Work Act (the FW Act) and the NES make it clear that employers can require notification from employees of any absence and evidence to support any personal leave they take.

However, there is no provision within the FW Act for employers to deduct payment for a public holiday to deter employees from being absent on the day or days adjacent to a public holiday.

Despite this there are several options available that may help reduce or control the issue.

Notification and evidence requirements

Under the FW Act an employee is not entitled to personal leave unless they:

  • notify their employer as soon as practicable that they will not be at work and the expected period of the absence; and
  • must, if required by the employer, give the employer evidence that would satisfy a reasonable person.

Except where it is impractical to do so, employees should be required to contact their manager or designated person if they are unable to come to work for any reason. Notification should occur prior to the employee’s normal start time, or as early as possible.

Managers should ensure they follow up on any absence and, where necessary, seek the relevant evidence required. Most commonly this would be a medical certificate or statutory declaration. It is important that the organisation sets out in a policy and/or contract of employment what documentation is expected. This information may also be contained within an enterprise agreement.

Public holiday falling during annual leave or personal/carer’s leave

Employers are often unsure of how public holidays interact with personal/carer’s leave and annual leave.

Basically, the NES provides that an employee is considered not to be on annual leave or personal/carer’s leave if it includes a day or part-day that is a public holiday.

Therefore, if a public holiday falls during a period of annual leave, it is not to be treated as annual leave.  If an employee is absent from work on a public holiday due to being unfit for work due to personal illness or injury, the day will be paid as a public holiday, not personal leave. The same will apply if the employee is absent and meets the requirements for carer’s leave.

For more information, contact HABA on (02) 9221 9911.

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