The declaration of public holidays, including substituted and additional public holidays, is the responsibility of the respective State and Territory Government. The payment for working on a day which is declared as a public holiday, on the other hand, is prescribed by Modern Awards.
This means that in some States an employee working a particular day may receive public holiday penalties, whereas employees working the same day in a another State and Territory where that day is not a declared public holiday, may not receive public holiday penalty rates.
Given the rare occurrence of the upcoming Christmas Day, Proclamation Day and New Year’s Day all falling on a weekend, the States and Territories have taken a number of different approaches to the declaration of public holidays during Christmas and New Year, with some States providing substituted public holidays and other States providing additional public holidays.
As a result of varying approaches taken by the States and Territories and the interaction with Modern Award public holiday penalties, a number of unions and employers applied to Fair Work Australia to clarify the public holiday clause in a number of Modern Award and, in some cases, seek additional public holiday penalties.
On 2 December 2010, Fair Work Australia issued its decision regarding public holidays. The decision reaffirms that it is up to State and Territory governments to declare public holidays and rejected the applications to by the unions to insert a specific penalty in a number of Modern Awards to be payable when Christmas Day falls on a day which is not a proclaimed public holiday.
This means that in South Australia, the following days are substitute public holidays for the upcoming Christmas and New Year period:
Christmas Day holiday- Monday 27 December 2010
Proclamation Day holiday - Tuesday 28 December 2010
New Year’s Day holiday - Monday 3 January 2011
It should be noted that Wednesday 29 December, Thursday December 30 and Friday 31 December are all considered normal working days.
Employers should carefully review the industrial instruments applicable to their staff in regards to provisions of public holidays. Under many Modern Awards and Division 2B State Awards, where the employee is required to work on a Saturday or Sunday where a substitute public holiday has been determined, the applicable penalty rates for the Saturday and Sunday worked will apply rather than the public holiday rates. When an employee is engaged to work on the substituted public holiday, by agreement between the employer and the employee, they may be entitled to a substitute day off under the relevant Modern Award or Division 2B State Award.
Some Modern Awards and Division 2B State Awards, including but not limited to the Hospitality Industry (General) Award 2010, Restaurant Industry Award 2010 and Registered and Licensed Clubs Award 2010, provide for a specific penalty for Christmas Day, where a substituted public holiday has been determined.
Traditionally, many employers close their business on Christmas Day, as well as New Year’s Day. Those that choose to remain open during this period will need to consider the substituted public holidays and the implications this will have on their business during this period.
Employers implementing a shutdown period by closing their business over the Christmas/New Year period should be advising their employees accordingly and ensure that they give their employees reasonable notice. Employers should also consider directing their employee to take annual leave during this period or alternatively, and coming to an agreement between both parties to take unpaid leave during the shutdown period. However, in relation to shutdowns, employers must comply with the provisions of their Modern Award or Division 2B State Award.
For assistance, please call the Business Advisory Centre on 08 8300 0101.
Shop Trading Hours
Recently, the Minister for Industrial Relation has handed down a decision regarding shop trading hours in South Australia and as such, major stores will be closed on:
- Christmas Day, Sunday 26 December and Monday 27 December and
- New Year’s Day and Sunday 2 January 2011.
The Minister has stated that employers can seek an exemption for an additional two hours of morning trading from 9.00am to 11.00am on each of the four Sundays leading up to Christmas Day.
Employers will have the option of applying to trade on two public holidays:
- from 9.00am to 9.00pm, Tuesday 28 December and
- from 9.00am to 9.00pm, Monday 3 January 2011.
Employers wishing to apply for extended trading hours during the upcoming Christmas/New Year period should contact SafeWork SA.
2011 Public Holiday and School Term General Information Sheet and Calendar
Business SA’s General Information Sheet and Calendar for 2011 are now available for members. The General Information Sheet contains a listing of all of South Australia’s important dates, including:
- Public Holiday dates
- School Term dates
- Construction Industry Closedown dates
- Construction Industry Public Holidays and Rostered Days Off and
- Daylight Savings Changeover dates.
The General Information Sheet also contains the dates of all of the public holidays observed throughout Australia.
The Calendar collates all of these important dates and displays them all on one convenient page.
The General Information Sheet and Calendar can both be downloaded from our website here.