Paying properly for public holidays this April

General / 25 November 2015
Paying properly for public holidays this April

Easter is nearly upon us and it seems to be the topic of conversation, especially since many employees are turning it into a ten day holiday. Before you all plan the annual Easter egg treasure hunt it is important to make sure you are aware of what employees are entitled to in respect of the Easter and Anzac Day public holidays.

Observing Easter and Anzac
Generally speaking Easter and Anzac public holidays are observed on the days they fall:

Good Friday falls on and is observed on Friday 18 April 2014;
Easter Monday falls on and is observed on Monday 21 April 2014; and
Anzac Day falls on and is observed on Friday 25 April 2014.

Transferring public holidays
Since 1 April 2011 employers and employees can agree to transfer the observance of public holidays to another working day if a written agreement identifies which public holiday is being transferred and the new calendar date it is being transferred to. But the new date can’t be another public holiday and it must be a normal working day for the employee. For example, if an employee normally works Fridays, you could agree to transfer Anzac Day to the following Friday 2 May 2014.

In any lawful exchange, entitlements transfer fully to the new day. But an employer can’t do it solely to avoid obligations or if it reduces the total number of paid public holidays an employee otherwise gets. If all that swapping seems a bit much – an employer can promulgate a policy prohibiting exchanges.

Anniversary Day(s)
Increasingly we are seeing clients choosing a different day on which to observe Anniversary Day.  The extent to which an employer can do this depends on whether they have agreed to this practice in writing with their employees (i.e. transferring the public holiday by agreement), any evidence of local practice and what province(s) the employer operates their business in.

Employers could observe Anniversary Day on Easter Tuesday if past practice supports this or agreed in writing with staff.  A good idea if you would like to holiday longer!

Employers may have to pay staff even if they don’t work. Using this Easter as an example, an employee who normally works on a Monday will be entitled to their normal pay for Easter Monday even if they don’t work. But if they do work, they get their normal pay, plus half that amount again, for the hours they actually work. They also get a day’s alternative holiday (commonly called a day in lieu) to take later on.

An employee who doesn’t normally work on a Monday will only become entitled to be paid if they actually work. Then they get their normal pay, plus half that amount again, for hours they actually work.

Normal pay means the employee’s relevant or average daily pay for the public holiday. Relevant daily pay means the amount of pay an employee would have received had they worked. It includes regular payments like commission and overtime rates if the employee would have received them had they worked. So if an employee normally works and is paid for 10 hours on a Monday – this is what they should be paid for.

If an employee’s daily pay varies within the pay period relating to the public holiday (or if it’s not possible or practicable to calculate the relevant daily pay), then an employer can use a daily average of the employee’s gross earnings for the previous 52 calendar weeks.

Would or wouldn’t
Not sure if your staff would‘ve worked? Try to reach agreement after considering the employment agreement and work patterns. It doesn’t matter whether an employee is casual, fixed term or permanent – always ask whether “but for” the day being a public holiday, the employee would have worked.

Knowledge is key
Whether you will or won’t work on the public holidays this April, make sure you know when and what your employees are entitled to. Some staff won’t be entitled to anything but you need to know why not and answer any questions in a way that you and they understand. Paying properly for public holidays this April beats paying penalties if you don’t.

Disclaimer:  We remind you that while this article provides commentary on employment law topics, it should not be used as a substitute for legal or professional advice for specific situations.  Please seek guidance from your employment lawyer for any questions specific to your workplace.

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