The agreement between an employer and employee of a public holiday being observed on another day can be in the employment agreement but doesn’t have to be. It must be in writing. The transfer of observance of the public holiday might be for business reasons or to meet the individual needs of an employee.
Requests to transfer
- can be made by the employer or the employee, and
- must be considered in good faith by both parties, and
- any agreement must meet the minimum set out in the law.
The minimum requirements are:
- the day it is being transferred to must be an identified or identifiable calendar date or 24-hour period, and
- the day must be an otherwise working day for the employee and not another public holiday, and
- the purpose of the transfer can’t be to avoid paying the employee time and a half for working on a public holiday or to avoid providing them with an alternative holiday (although this may be the effect of the transfer), and
- the transfer can’t reduce the number of public holidays the employee gets.
Entitlements for working or not working on a transferred date
When the public holiday is transferred, the day it is moved to becomes the public holiday for the employee.
If the employee:
- doesn’t work on the day the public holiday is transferred to, they get relevant daily pay or average daily pay for the day that the public holiday is transferred to.
- works on the day the public holiday is transferred to (the employer and employee must both agree that the employee will work on the day), they get paid time and a half for the hours worked and get an alternative holiday just as they would have if they had worked the original public holiday.
- would have worked on a day that a public holiday is transferred to but can’t because they’re sick, they get paid their relevant daily pay or average daily pay as if they had a paid, unworked public holiday. They don’t have sick leave deducted.
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.
Relevant daily pay and average daily pay has more information on how to calculate pay.
Transferring part of a public holiday
Employees working shifts that span two days can agree with their employer in writing (it can be in an employment agreement) to transfer the public holiday so that it covers one whole shift.
The 'day' a public holiday is transferred to must be a period of 24 hours that begins or ends on the actual public holiday and includes the whole of a shift the employee is due to work.
The reason for the transfer can’t be to avoid paying the employee time and a half for working on a public holiday or to avoid providing them with an alternative holiday (although this may be the effect of the transfer).
An employee is to work from 10pm on 24 April to 6am on ANZAC Day and from 10pm on ANZAC Day to 6am on 26 April.
The employer and employee can agree to treat 10pm 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.
Whether 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.
An employee is scheduled to work from Sunday night at 7pm to Monday morning at 3am (Shift 1) and Monday happens to be a public holiday. They’re scheduled to work the same shift beginning on Monday night and finishing on Tuesday morning (Shift 2).
The employer and employee could agree to transfer the public holiday to the start of shift 2 (which still begins on the actual public holiday). If the public holiday is transferred in this way, the employee would get:
- payment at the rate appropriate to Shift 1 with no public holiday time and a half payment, and
- their relevant daily pay or average daily pay for Shift 2, if the employee doesn’t work that shift, or
- if the employee does work that shift, the greater of time and a half of their regular pay (excluding penal rates) or, if applicable, time and a half of their average daily pay as it relates to time actually worked on the day (excluding penal rates), compared with their regular pay in addition to any penal rates they get for working on the day and an alternative holiday.
Workplace policies against transferring public holidays
An employer may have a workplace policy stating that they will not consider requests to transfer public holidays. This may be about requests to transfer part or whole of the public holiday and may cover all or part of their business. As part of their good faith obligations, an employer should consult with their employees on the development of this policy.