By Lucy Coogan and Zoe Brodie, NRA Legal
The nature of retail means that public holiday requirements can be quite complex.
This year, a late Easter means up to five public holidays will fall in the space of a week, raising questions as to employee entitlements, attendance, and trading hours during this time.
When can we open?
Trading hour regulations vary state-by-state, and may change depending on the size or nature of your business. Any restrictions applicable to your business must be complied with.
It is important to note that on days where no restrictions apply, for example, Easter Saturday in Tasmania, businesses are not obliged to open.
The South Australian Government recently decided to offer suburban retailers the opportunity to trade on Easter Monday, moving SA in alignment with the rest of the country.
Further, while in some states no legal restrictions apply to certain stores on ANZAC Day, it may be custom to remain closed until 1pm.
Who can work?
Under the National Employment Standards (NES), employees are entitled to be absent on a public holiday unless the employer has requested the employee to work and the request is reasonable.
Whether an employee can refuse a reasonable request to work on a public holiday varies from state to state. Generally, an employee can only refuse a reasonable request to work if the refusal is also reasonable. Whether a request or refusal is reasonable depends on a number of factors, including:
- The nature of the workplace and the work performed by the employee;
- The employee’s personal circumstances;
- Whether the employee could reasonably expect the employer to require them to work over the public holiday;
- Whether the employee is entitled to overtime, penalty rates, or other compensation for working on a public holiday;
- Whether the employee is full time, part time, or casual; and
- The amount of notice given by either party.
In New South Wales, however, businesses must only be staffed by employees who have freely elected to work on a public holiday, without any coercion, harassment or threats.
What entitlements apply to my employees?
Under the General Retail Industry Award 2010, Hair and Beauty Industry Award 2010, Restaurant Industry Award 2012 and Fast Food Industry Award 2010 (the Awards), any work performed on a public holiday must be paid at the appropriate penalty rate.
Alternatively, the Award covering your business may allow employers to, by mutual agreement, compensate a permanent employee for hours worked on a public holiday by providing equivalent time in lieu without loss of pay, or equivalent time in annual leave.
If a permanent employee is absent on a public holiday they would have otherwise been required to work, they must be paid their ordinary base rate of pay for that day.
If you have questions about how Easter and ANZAC Day affect your business, contact one of our dedicated workplace relations specialists on 1800 RETAIL (738 245).
NRA Members can download the Public Holidays and Trading Hours Factsheet here (login required).