As Easter falls over the weekend, there will be plenty of workers entitled to penalty rates. Regardless of the industry or if your business is open or closed over Easter, there are a number of things you will need to consider and common mistakes to avoid for the upcoming Easter long weekend.
1. “I’ll just tell my employees they need to work over Easter.”
Don’t let your desire for an extra set of hands on a public holiday put you in a legal mess. Public holidays form part of the National Employment Standards (NES) which protects an employee’s workplace right to reasonably refuse to work on a public holiday.
Before you ask an employee to work a public holiday, always look at their contract of employment, any enterprise agreement that may apply to their employment or the Modern Award. It’s best practice to put the request in writing outlining the hours of work and other conditions such as the rate of pay and penalty rates (if applicable). Remember, an employee may have the right to refuse to work if they can establish reasonable grounds such as family responsibilities or a short notice period.
2. “It’s easier to offer a day off, in lieu.”
Public holiday penalty rates are notoriously expensive for small business employers, so it’s hardly surprising that many try to strike a deal by offering employees a day off in lieu or swapping work days instead. Whether this puts you in breach of the Fair Work Act depends on the wording of the relevant Modern Award or enterprise agreement. However, you generally cannot force an employee to agree to take a day in lieu instead of being remunerated for working the public holiday.
3. “I pay above Award rates, so I’m already covered for penalty rates.”
Think you don’t need to bother paying staff penalty rates since they are already earning well over the Award rate? Guess again.
When considering whether rates are applicable you need to ensure that an offsetting provision is in place and that the above award component is sufficient to ensure the employee is no worse off. Penalty rates are usually spelled out in Awards and agreements, but be warned that penalty rates in some industries changed in 2017; so be sure to check every time.
4. “If my employees don’t work on the public holiday, I don’t have to pay them.”
Full-time and part-time employees, who normally work on the day a public holiday falls, are entitled to take the day off and be paid at least their base rate of pay for the ordinary hours they would have worked. However, casual employees don’t get paid for public holidays, unless they work on the actual day. You cannot alter an employee’s roster to avoid a public holiday.
5. “My employee is on paid leave overlapping Easter, so I can deduct the public holiday days from their annual leave balance.”
Many employee’s take time off to spend with family and friends over Easter. But, if an employee is on annual leave or personal leave when a public holiday falls, then the day is treated as a public holiday. This means, the employee should be paid at least their base rate of pay for the day, and the day shouldn’t be taken off their annual leave or personal leave balance.
This Easter, ensure you check for the provisions of Awards or agreements which apply to your business and employees, along with contracts of employment for any terms relevant to a public holiday. If you are unsure, best to ask for professional workplace relations advice.
Djessika Savouts, Senior Employment Relations Adviser, Employsure