Posted September 12, 2022
HABA wish to acknowledge the incredibly sad passing of her majesty, Queen Elizabeth the Second, on the 8th of September 2022. Our thoughts are with the royal family at this sad time.
Regarding the public holiday to mark the Queen’s passing as announced by Prime Minster Albanese over the weekend, HABA expects that this will become official in every state over the coming day or so. This one-off public holiday will occur on the 22nd of September 2022. Here is what this means for salon owners:
- Employees covered by the Fair Work Act 2009 (all employees except those of WA sole traders/partnerships) will have an entitlement to be absent on 22 September 2022
- If an employee is required to work by their employer on that day, they will be entitled to penalty rates as per the award (unless the public holiday is substituted for another day)
- If an employee does not want to work that public holiday, they can refuse the employers request, but either the refusal has to be reasonable, or the request has to be unreasonable. The employee does not have the automatic right to decline work – an employer can require an employee to work provided that the conditions in section 114 of the Fair Work Act are met (see below).
If employers require employees work on the public holiday, and the employee does perform work on that day, the employees will be entitled to the appropriate penalty rates under the Hair and Beauty Industry Award 2020.
The Hair and Beauty Industry Award 2020 entitles employees (full-time, part-time, and casual) to be paid 250% for work performed on a public holiday.
Employers can have discussions with employees about substituting the public holiday for another day if they wish. The employee needs to agree to this substitution, and agreement needs to be reached with each individual employee.
Example: Employer and employee agree to substitute the public holiday on 22 September 2022 for Thursday 29 September 2022. This means that if employees perform work on 22 September 2022, this day will be regarded as a normal day with ordinary time rates payable and if they work on 29 September 2022, they will be entitled to public holiday penalty rates (250%).
If employees wish to remain absent on the public holiday, despite the employers request that the employee work on that day, section 114 of the Act will be relevant. It states:
Entitlement to be absent from employment on public holiday
Employee entitled to be absent on public holiday
An employee is entitled to be absent from his or her employment on a day or part-day that is a public holiday in the place where the employee is based for work purposes.
Reasonable requests to work on public holidays
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:
(a) the request is not reasonable; or
(b) the refusal is reasonable.
In determining whether a request, or a refusal of a request, to work on a public holiday is reasonable, the following must be taken into account:
(a) the nature of the employer’s workplace or enterprise (including its operational requirements), and the nature of the work performed by the employee;
(b) the employee’s personal circumstances, including family responsibilities;
(c) whether the employee could reasonably expect that the employer might request work on the public holiday;
(d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, work on the public holiday;
(e) the type of employment of the employee (for example, whether full-time, part-time, casual or shiftwork);
(f) the amount of notice in advance of the public holiday given by the employer when making the request;
(g) in relation to the refusal of a request–the amount of notice in advance of the public holiday given by the employee when refusing the request;
(h) any other relevant matter.
If an employee requests to remain absent on the public holiday, the employer should assess the reasons for their refusal and determine if the employee has grounds to refuse the request.
Upcoming Queen’s Birthday Public Holidays in Western Australia and Queensland
At the time of writing, it is believed that the public holidays on 26 September in WA and 3 October in Queensland will be observed as prescribed. HABA will provide an update if there is any change to these public holidays. It is possible that the names of the public holidays will change.
The other states and territories observe the Queen’s Birthday public holiday in June.
Salons covered by these laws may choose to close and pay employees for this public holiday. This issue is very complex, so HABA members are encouraged to call the HABA Advice Line. For further advice on this topic or any workplace relations matter, HABA members can call the HABA Advice Line on 02 9221 9911.
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