With Anzac Day looming and both Saturday the 25th and Monday the 27th of April Gazetted as Public Holidays in WA combined with more and more businesses trading over 6 or 7 days we are asked the perennial question as to how this works for businesses.
The first step is to refer specifically to your applicable Award(s) or your Registered Agreement (where you have one) as to any particular requirements or directions it may have with regard to Public Holidays. A number of State Awards specify that when a Public Holiday falls on a Saturday or a Sunday then the Public Holiday(s) shall be observed on the day it falls or the following Monday or Tuesday. Many Modern Awards in the Federal system allow for ‘substituted days’ by agreement – it is important therefore to understand whether you are a State system or Federal system employer – as a sole trader or partnership your business will be a State entity.
WA is the only State in the Country that has gazetted BOTH Saturday and Monday as Public Holidays, this means that for all Federal employers (Pty Ltd entities) – unless you have a Registered Agreement that states otherwise – BOTH days will attract the payment of penalty rates for Public Holidays where the days are worked. We have sought clarification on this from the Fair Work Ombudsman and this has been confirmed. Where a business chooses to close on a day that is gazetted as a Public Holiday any employees who are regularly rostered to work that day are entitled to payment for the ordinary hours they would normally work, where an employee does not normally work that day or where a business never trades on that day then no payment is required.
The following information is for State based employers and is taken from the Department of Commerce site:
Under the Public and Bank Holidays Act if ANZAC Day falls on a Saturday the next following Monday is also a public holiday. However, some WA awards require that the public holiday rates of pay only apply on the Monday as a ‘substitute’ public holiday. Other WA awards provide for public holiday rates only on the Saturday.
An overview of public holiday arrangements for award free employees and for the Shop and Warehouse, Restaurant Tearoom and Catering Workers and Hairdressers WA Awards is below.
Award free employees
The minimum entitlement for award free state system employees is for full time and part time employees who would normally work Saturday 25 April but do not because the business is closed to receive a paid day off work.
Award free employees may have contracts of employment which establish arrangements for payment and paid time off for public holidays.
Shop and Warehouse Award
Under the Shop and Warehouse WA Award, when ANZAC Day falls on a Saturday the public holiday is observed on the next Monday. This means that Monday 27 April is considered the public holiday for this award.
If the business is not trading on Monday, part time and full time employees who would normally be required to work are entitled to a paid day off work.
If the business is trading on Monday, public holiday pay rates will apply.
If the business is trading on Saturday, standard Saturday pay rates under the WA award will apply.
Please note there are restrictions on trading for some shops on ANZAC Day, please visit Consumer Protection for more information.
Restaurant Tearoom and Catering Workers Award
Under the Restaurant Tearoom and Catering Workers WA Award, when ANZAC Day falls on a Saturday the public holiday is observed on the actual day. This means that Saturday 25 April is the public holiday for the purposes of payment for employees covered by this award.
If the business is not trading on Saturday, part time and full time employees who would normally be required to work are entitled to a paid day off work.
If the business is trading on Saturday, public holiday pay rates will apply.
Hairdressers Award
Under the Hairdressers WA Award, when ANZAC Day falls on a Saturday the public holiday is observed on the next Monday. This means that Monday 27 April is the public holiday for the purposes of payment for employees covered by this award.
If the business is not trading on Monday, part time and full time employees who would normally be required to work are entitled to a paid day off work.
If the business is trading on Monday, public holiday pay rates will apply.
If the business is trading on Saturday, standard Saturday pay rates under the WA award will apply.
So long as WA persists in gazetting two days rather than simply the day the Public Holiday falls on then this situation will persist. Employers – particularly those in the Federal system may need to look at which staff are rostered to work as it is perfectly possible for the same employee to be paid public holiday penalty rates twice.
If you are still unclear feel free to call us during office hours to discuss (08) 9792 4451