Transferring a public holiday
As of 1 April 2011, employers and employees are able to agree to transfer the observance of public holidays to another working day to meet the needs of the business or the individual needs of the employee. An employer and employee should make the agreement in writing.
The public holiday to be observed by the employee must be on another identified or identifiable calendar day or 24-hour period and otherwise be a working day for the employee. A request can be made by either employee or employer and must be considered in good faith by the other party and any agreement must meet the minimum requirements set out in law. The agreement can’t reduce the number of public holidays which an employee is entitled to. The purpose of a transfer cannot be to avoid paying the employee time and a half for working on a public holiday or providing them with an alternative holiday (although this may be the effect of the transfer).
An employee is entitled to a paid day off on the day the public holiday is transferred to. The employee should be paid their relevant daily pay or average daily pay for the day (see the “Definitions” box).
If the employee works on the day the public holiday is transferred to, then they are entitled to be paid time and a half for the hours worked and to receive a whole day’s alternative holiday (see “Alternative holidays for working on public holidays”). An employer and employee must both agree that the employee will work on the day the public holiday is transferred to.
Where the employee would have been working on a day that a public holiday is transferred to but cannot work due to sickness, the payment for the day is as if they had a paid, unworked public holiday.
If a day that a public holiday is transferred to falls within a period that an employee is taking as annual holidays, then that day must be treated as a public holiday and not as part of the employee’s annual holidays.
Transferring part of a public holiday
Employees working shifts that start and end on different days can transfer the public holiday, by agreement with their employer, so that the public holiday covers one whole shift. It is important to note that the transfer can only take place if certain requirements are met, such as that the employee is due to work a shift in the period to which the public holiday is transferred. The purpose of the transfer cannot be to avoid paying the employee time and a half for working on a public holiday or providing them with an alternative holiday (although this may be the effect of the transfer).
Example: Transferring part of a public holiday
An employee is to work from 10 pm on 24 April to 6 am on Anzac Day[*] and from 10 pm on Anzac Day to 6 am on 26 April.
The employer and employee can agree to treat 10 pm to midnight on Anzac Day as not part of a public holiday in exchange for treating a period of 24 hours that finishes on Anzac Day as a public holiday. Just when the 24-hour period starts before or finishes after a work period is a matter for the parties to agree on. For instance, they could agree that it runs from midday on 24 April to midday on Anzac Day.
Employers may have a workplace policy that they will not transfer public holidays. This may refer to the transfer of part or the whole of a public holiday, and can relate to the whole of a business or some parts of the business. If employees agree, this policy could be included in an employment agreement.
The Department of Labour can help employers and employees if any disputes arise around transferring public holidays.