This year, Christmas Day and next year's New Year's Day (1 January 2022) will each fall on a Saturday, and Boxing Day (or Proclamation Day) falls on a Sunday. Similarly to our EMA Note for the ANZAC Day Public Holiday, each State and Territory has its own rules regarding public holidays and substitute public holidays.
Employers must ensure that they understand their obligations regarding these public holidays.
ADDITIONAL PUBLIC HOLIDAY, OR SUBSTITUTE? National Employment Standards
Under the Fair Work Act 2009 (Cth), public holidays include days and part-days prescribed by State or Territory legislation. If a State or Territory declares that a day or part-day is substituted for a day or part-day that would otherwise be a public holiday, then the substituted day or part-day is the public holiday instead of the original day. Enterprise agreements may also include terms for substituting public holidays.
Variation by State or Territory
States and Territories may choose to leave the public holiday on the original day, substitute it for an alternative day, or create an additional public holiday. Whether the day is substituted or there is an additional public holiday will affect the rate of pay for each day.
The Fair Work Ombudsman website for public holidays provides a list of public holidays for each jurisdiction for 2021, which covers Christmas Day and Boxing Day. The Ombudsman’s information relevant to these days is set out below.
The Fair Work Ombudsman website also provides a list of public holidays in each jurisdiction for 2022, which covers New Year’s Day.The Ombudsman’s information relevant to New Year’s Day is set out below.
If you would like specific advice regarding a public holiday in your particular state or territory, please contact our office and one of our consultants will be able to assist you.
What this means for Employers
ensure that they understand which days are public holidays and which are normal days;
ensure that they are complying with their relevant modern award or enterprise agreement when paying employees for work performed on the declared public holidays (or on the Sunday or Saturday where there Is a substitution); and
consider whether it is reasonable (in the circumstances and at the time) to request an employee to work on either of the declared public holidays.
Require further information/assistance?
If you require further information or advice, please contact your Consultant.
 Fair Work Act 2009 (Cth) s 115.
EMA Consulting is not a law firm and therefore does not provide legal advice or services. The information contained within this document and associated material is general in nature and should not be relied upon. If you require specific advice on a particular matter, we recommend that you contact EMA Consulting on 08 8203 1700. Subject to the matter at hand, your EMAC Consultant may recommend that you obtain formal legal advice. If formal legal advice is required, upon your written instruction EMAC will brief your matter to a legal practitioner for this purpose. The contents of this document and associated materials do not represent legal advice.