Are Local Show Days Now Holidays Under the NES?
You are here:The NES kicked in on 1 January 2010, including provisions regarding what is a public holiday. What impact is this having on whether a day is a public holiday?
The answer is a complex interplay of the NES, State and Territory bank holiday legislation, award and enterprise agreement provisions. So much for the Fair Work Act simplifying things.
The NES
The NES provides than an employee is entitled to be absent from his or her employment on a day or part‑day that is a public holiday. However, an employer may request an employee to work on a public holiday if the request is reasonable.
If an employer requests an employee to work on a public holiday, the employee may refuse the request if the request is not reasonable or the refusal is reasonable.
Payment for Work on a Holiday
What the NES provisions do not do is to provide for a specific penalty which must be paid for working on a public holiday in those industries where employees are required to work on a public holiday. That is the role of award or enterprise agreement provisions.
Which Days Are Holidays?
However, most modern awards (as opposed to enterprise agreement conditions where holidays are generally listed) now simply reference the NES in deciding which is a holiday. This has resulted in changes to those days traditionally observed as holidays in many real life situations.
For example, the former Metal and Engineering Industry Award (a major and very influential award in past years) historically provided for a Union Picnic Day. Work Choices intended taking these out of awards, although the the day was generally preserved in practice by a range of other mechanisms such as enterprise agreements.
Under NES provisions, there are 8 specifically named holidays, plus most States and Territories also nominate a Labour or 8-Hour Day holiday as well as the Queen's Birthday holiday, providing a total of ten days.
However, the NES also provides for additional holidays on days or part-days prescribed under State and Territory laws, including regional holidays (such as local Show Days).
This has resulted in (we believe) an unintended consequence of changing which days are observed as holidays in many areas under many awards. For example, there are something like 60 different local holidays prescribed in different municipal areas in Queensland.
ERS Comment - whilst the NES provides for public holidays, it just indicates which days that people can ask to have off and get paid – not what we must pay where employees actually work.
The NES provisions will now significantly impact labour costs and rostering arrangements in industries that must trade on holidays such as in retail, fast food, service stations and the like, particularly where an existing enterprise agreement stipulates payment of penalty rates on days other than those nominated under the NES.
Our Employer Protection Advisory Service (EPAS), or Telephone Advisory Service (TAS), clients can call us to discuss the impact on public holidays in their business.
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