STATUTORY REVIEW INTO THE
PUBLIC HOLIDAYS ACT 2010
INFORMATION PAPER
JUNE 2016
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1. About the Review
In November 2010, following on from a review of the Banks and Bank Holidays Act 1912
conducted by Professor Joellen Riley (from the Law School at the University of Sydney), the
former Labor Government introduced a bill into NSW Parliament to establish contemporary
arrangements for facilitating the recognition and celebration of identified days of special
public significance to the community at large.
Following its passage through Parliament, the Public Holidays Act 2010 commenced on 31
December 2010.
Under the terms of the Act, the Minister for Industrial Relations is required to review the Act
to determine whether its policy objectives remain valid and whether its terms remain
appropriate for securing those objectives.
Section 12 of the Act requires a report on the outcome of the review is to be tabled in
Parliament by 29 November 2016.
Comments and submissions lodged will generally be made publicly available through the
NSW Industrial Relations website. If you want your submission, or any part of it, to be
treated as confidential please indicate this clearly in writing at the time of making the
submission. The website may also include a list of submissions received during the Review.
If you do not want your submission to be referred to in this list please make this clear. While
reasonable efforts will be made to exclude personal information such as telephone numbers
and addresses, it is important that you do not include such detail in the document to be
published.
Views may be submitted by email to [email protected] or by post to:
Executive Director
Review of Public Holidays Act 2010
GPO BOX 5469
SYDNEY NSW 2001
The closing date for comments to be submitted is 8 July 2016.
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2. Background
In 2009 the NSW Government commissioned Professor Joellen Riley to review the Banks
and Bank Holidays Act 1912 requesting that the Professor provide a report and recommend
‘changes to modernise the operation of legislation and other instruments which affect the
creation and operation of public holidays and bank holidays in New South Wales’.
The review recommended the making of a new Act, the Public Holidays Act 2010, the
primary purpose of which was to make predictable and transparent the provisions identifying
days of cultural, social and religious significance to the NSW community.
While the clear and certain identification of the days that are public holidays in this State can
assist employers and employees to understand when and how various rights and obligations
attaching to public holidays will arise, it must be emphasised that the State’s power over
public holidays is limited to only providing for the days on which they occur.
The Fair Work Act 2009 (Cth) makes it clear that providing for the rights and obligations of
private sector employees and employers is not a matter that a State law can deal with. The
industrial consequences of public holidays are matters dealt with under the Fair Work Act –
through the National Employment Standard relating to public holidays, and under modern
awards and enterprise agreements made under that Act.
The National Employment Standard provides entitlements for employees to be absent from
work with pay on a day or part-day that is a public holiday. This includes public holidays
declared under a State or Territory law. In addition, awards and enterprise instruments may
require penalty rates to be paid to an employee who is required to work on a public holiday.
The Public Holidays Act recognises 11 named occasions of such significance each year to
warrant observance with public holidays. In addition to the Christmas/New Year and Easter
periods where several holidays are recognised, each within a period of one week, there are
four single day occasions, Australia Day, Anzac Day, Queen’s Birthday and Labour Day that
are interspersed throughout the calendar year.
Ultimately the report contained a recommendation calling for the retention of what were at
the time all 10 customary public holidays (which in the Public Holidays Act are referred to as
standard public holidays) along with a prescribed methodology for their allocation to the
calendar each year. This methodology resulted in new statutory arrangements for additional
holidays should Christmas, Boxing or New Year’s days coincide with a weekend and for
Sundays to be declared public holidays.
Although the report only recommended consideration of Easter Sunday as a declared public
holiday, the Act as passed included it as one of the eleven standard public holidays.
The report also noted that under the Banks and Bank Holidays Act, any time a date-specific
holiday coincided with a Sunday, the holiday was transferred to the next available weekday.
It acknowledged that Sunday had become a regular working day in many industries, and
therefore a recommendation was made they be treated like any other day when allocating
public holidays.
The report further recommended that consistent with a 1993 COAG agreement, whenever
Australia Day 26 January coincided with a Saturday or Sunday it should be transferred to the
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next Monday. Other occasions that were the subject of a formula for the allocation of a
Monday holiday under the previous Act, Labour Day and Queen’s Birthday, were
recommended to be retained for the new legislation.
An important outcome of the new approach taken for the Public Holidays Act was that
administrative intervention in the form of the annual gazettal of standard holidays (and their
substitution or addition because of weekend occurrences) has been eliminated. The 11
named occasions and when they will occur can now be confidently programmed by
businesses and citizens year on year without waiting for the publication of a gazette notice.
Special circumstances still may arise whereby an extra holiday or one-off substitution of one
of the standard holidays may be deemed necessary. Arrangements for additional and
substitute holidays that had previously operated under the Banks and Bank Holidays Act
were retained in the new Act. Since the Public Holidays Act commenced on 31 December
2010, the provisions have not been called upon for the administration of the 11 standard
state wide holidays, as the formulaic approach adopted in the Public Holidays Act ensures
the accommodation of the variable calendar.
Local holidays and event days
It is not possible to take a formulaic approach to the relatively small number of local public
holidays and half day holidays requested by regional councils. Accordingly, the capacity for
the Minister to declare and even cancel those holidays on request is still available.
Previously, under the Banks and Bank Holidays Act, holidays that were declared for a
specified region were not industrially significant because employment entitlements were not
legislated but settled between industry participants in awards or at the enterprise level by
agreements.
With the commencement of the national workplace relations system in 2006, federal laws
mandated the benefit of time off work or penalty rates on public holidays for employees
where previously for some no such entitlement had existed. This was particularly significant
for employers in localities where a local public holiday was regularly declared. The NSW
public holiday legislation of the day, combined with federal workplace law had the effect of
conferring time off work or penalty rates on workers as well as added costs for employers in
those districts where these benefits may have not previously been available.
In order to ameliorate the impact, Professor Riley devised and recommended an option for
the new Act that would allow certain days for regional events (such as agricultural show
days), to be recognised within communities without naming them ‘public holidays’. The
Public Holidays Act introduced a process for the declaration of ‘local event days’ which
allowed employees working under local agreements and contracts that recognised such
events to enjoy their benefits without imposing windfall entitlements on others who
previously were not so entitled.
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3.
Current Framework
The Public Holidays Act was assented to on 29 November 2010 and replaced the Banks and
Bank Holidays Act 1912.
There have been no legislative changes to the Act since it was passed but new
administrative changes have been introduced for the approval of local event days and local
public holidays. (See section 4 of this paper for further details).
Section 4 of the Act names eleven occasions to be observed by a public holiday in NSW.
In NSW, apart from the Easter period in any given year, which is determined outside the Act
by ecclesiastical formula, the Act fixes relevant occasions to the day of the year on which the
holidays are to occur. When certain of the holidays coincide with a Saturday or Sunday, the
Act provides for an automatic additional or substitute day in the following week. In 2015 and
2016, nine public holidays fell or fall on weekdays and three on a weekend. (See Attachment
A which outlines the additional and substitution arrangements for statewide public holidays
under the Act).
The 11 occasions are: New Year’s Day, Australia Day, Good Friday, Easter Saturday, Easter
Sunday, Easter Monday, Anzac Day, the Queen’s Birthday, Labour Day, Christmas Day and
Boxing Day.
These days include the eight nominated days provided for under the relevant National
Employment Standard in the Commonwealth’s Fair Work Act 2009. The extra days not
specifically provided for in the National Employment Standard are Easter Saturday, Easter
Sunday and Labour Day.
However, because the National Employment Standard recognises public holidays declared
or prescribed under a State law to be observed generally as public holidays, the rights and
obligations set out under the Standard apply to all of these days.
Section 5 provides procedures for the appointment by the Minister of an additional public
holiday in a particular year for the whole or a specified part of the State. The Minister is able
to declare public holidays other than those specifically named, including a public holiday for
a defined locality or region within the State. An example of the type of day which may be
declared under this section is the APEC public holiday for local government areas within the
greater Sydney region in 2007.
Since 2013 the number of local public holidays approved by the Minister has remained
relatively consistent. A large proportion of local holiday approvals are for part days rather
than full days. Most recently, at the request of the relevant local councils, many of the
approvals have been time specific. For example, in 2014, Coffs Harbour City Council was
granted a part day public holiday from midday to 5.30pm to recognise the Coffs Harbour
Gold Cup.
In 2015, there were eighteen part days and two full day local public holidays approved
across NSW.
Section 6 allows the Minister to substitute another day for any public holiday in a particular
year.
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To ensure consistency across the whole NSW workforce, section 7 of the Act applies, as
laws of NSW, sections 114 and 116 of the Fair Work Act.1 This means that employees in the
State industrial relations system (employees in the state public sector and the state local
government sector) have the same rights to be absent with pay on a public holiday as those
in the national system.
Section 8 of the Act provides for the Minister to declare a local event day or part day in an
area of the State at the request of the relevant local council. This declaration does not confer
the status of a public holiday to that occasion and therefore prevents these days from
attracting the rights and entitlements on public holidays that are provided for under the Fair
Work Act.
While the number of local event day approvals has increased since the Act commenced, the
overall numbers are much less when compared with local public holiday approvals. In 2015,
there were five part day and three full day local event days approved across NSW.
There are no local public holidays or local event days declared for the Sydney metropolitan
area.
Finally, section 12 provides for a review of the Act five years after the date of assent to
ensure the policy objectives remain valid.
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Sections 114 and 116 are part of the Public Holidays National Employment Standard
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4. Administrative arrangements for the declaration of local public holidays and local
event days
As noted earlier while no legislative changes have been made to the Act since it commenced
there have been administrative changes introduced relating to the approval of local event
days and local public holidays.
Under the Act all public holidays and local event days (including part-days) must be declared
by order of the Minister and published on the NSW legislation website.
Regional councils may request the Minister to declare a public holiday or half day holiday in
a specified part of the State or a local event day or half day for the whole or part of a local
government area to promote attendance at local cultural or sporting events.
The application process for the declaration of these days requires councils to consult widely
with the affected community and other relevant stakeholders about the impact such a
declaration would have on businesses and schools located in the relevant local government
area.
In circumstances where a local public holiday is declared by the Minister, a bank located in
the designated holiday area will be required to close during the declared public holiday hours
unless staff have freely elected to work on the day in accordance with Part 3A of the Retail
Trading Act 2008. Shops located within the designated holiday area are able to open without
restriction. In addition, employees who work on the day or part day may have an entitlement
to penalty rates under a relevant award or enterprise agreement.
Alternatively, the Act allows councils to request a local event day or half day declaration from
the Minister in relation to regional racing carnivals, agricultural shows or the like. Prior to
declaring a local event day the Minister must be satisfied that the day or part day is, and will
be observed as, a day of special significance to the community in the area concerned.
Local event days are not public holidays (within the meaning of the Fair Work Act) and time
off and/or additional pay such as penalty rates will only apply where agreed to at the
workplace level by contract or agreement between an employer and their employees.
Further, the declaration of a local event day or part day does not preclude banks or shops
located within the designated holiday area from opening or trading on the day.
Guidelines for Local Public Holiday and Local Event Day Applications
To support applications for the declaration of local public holidays and local event days, the
Minister provides all regional councils with Guidelines for Local Public Holiday and Local
Event Day Applications. The guidelines are underpinned by the requirements of the Act and
are provided to assist councils when making their applications.
As a result of consultations between councils and the NSW Government, the Guidelines
were amended in 2015 to provide for the making of biennial local public holiday and four
yearly local event day applications. This will reduce the administrative burden imposed by
the previous process which only permitted the making of annual applications under the Act.
When making an application for a local public holiday or local event day the amended
Guidelines require councils to provide additional information about the economic and social
importance of the event for the designated holiday area.
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To make it clear, the new Guidelines do not prevent councils from electing to make
applications on an annual basis, if it is deemed more convenient to do so.
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5. Other reviews where public holidays issues have been canvassed
Productivity Commission Review into National Workplace Relations Framework
During 2015, the Productivity Commission undertook a review of the national workplace
relations framework and released its final report on 21 December 2015. The Commission
made two recommendations relating to public holidays.
Firstly, that as part of its four yearly review of modern awards, the Fair Work Commission
should incorporate terms that permit an employer and an employee to agree to substitute a
public holiday for an alternative day into all awards.
According to the Productivity Commission’s Report approximately two thirds of modern
awards already have provisions for the substitution of public holidays – whether by
agreement with the majority of employees and their employer or an individual employee and
their employer.
The second recommendation made by the Commission suggested the Commonwealth
Government should amend the National Employment Standard so that employers are not
required to pay for leave or any additional penalty rates for any newly designated state and
territory public holidays.
The Commission expressed concern about States creating additional entitlements to paid
time off for national system employees through the unilateral creation of public holidays. It
recommends amending section 115 of the Fair Work Act to ensure new public holidays
declared by States do not make national system employees eligible for either paid time off or
penalty rates.
The last statewide public holiday to be made in NSW was Easter Sunday in 2011. There
have been no further statewide public holidays made since the Public Holidays Act was
passed by Parliament in November 2010.
Should the second recommendation be adopted by the Commonwealth, the NSW
Government will seek clarification as to the impact of the new law on the regular annual
administrative declaration of local public holidays related to the recognition of long-standing
regional events.
Modern Award Review – Public Holidays
The Fair Work Commission’s four yearly review of modern awards commenced in early 2014
and is scheduled to be completed later this year. Public holidays are being dealt with in the
‘common issues’ stage of the review. Submissions from employer groups and unions are
seeking a number of variations to certain awards. These include potential entitlements where
a public holiday falls on a day an employee is not rostered to work and what payments are
appropriate in circumstances where an employee works on a public holiday that has been
substituted with another day. For example, when Christmas Day falls on a weekend and the
employee works on 25 December.
It is expected the Fair Work Commission will commence hearings into these matters in April
2017.
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Attachment A
Standard public holidays
The following public holidays are declared for the whole State:
New Year’s Day
Public holiday on 1 January.
When 1 January is a Saturday or Sunday, there is to be an additional public holiday on the following Monday.
Australia Day
Public holiday on 26 January.
When 26 January is a Saturday or Sunday, there is to be no public holiday on that day and instead the following
Monday is to be a public holiday.
Good Friday
Public holiday on the Friday publicly observed as Good Friday.
Easter Saturday
Public holiday on the day after Good Friday.
Easter Sunday
Public holiday on the Sunday following Good Friday.
Easter Monday
Public holiday on the Monday following Good Friday.
Anzac Day
Public holiday on 25 April.
Queen’s Birthday
Public holiday on the second Monday in June.
Labour Day
Public holiday on the first Monday in October.
Christmas Day
Public holiday on 25 December.
When 25 December is a Saturday, there is to be an additional public holiday on the following Monday.
When 25 December is a Sunday, there is to be an additional public holiday on the following Tuesday.
Boxing Day
Public holiday on 26 December.
When 26 December is a Saturday, there is to be an additional public holiday on the following Monday.
When 26 December is a Sunday, there is to be an additional public holiday on the following Tuesday.
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