Prime Minister Albanese has announced a public holiday for Thursday 22 September 2022, a National Day of Mourning to commemorate Her Majesty, Queen Elizabeth II. 

Employees are entitled to a day off on a public holiday, however, given the short period of notice, shutting for the day may pose operational difficulties for some businesses. 

The Fair Work Act (FWA) allows employers to request an employee to work on a public holiday if the request is reasonable. An employee may refuse the request if the request is not reasonable, or if the refusal itself is reasonable. 

What makes a request to work reasonable? 

The reasonableness of a request to work on the public holiday will depend on a range of factors, including:  

• the nature of your workplace (including its operational requirements) and the nature of the work to be performed by the employee; 
• the employee’s personal circumstances, including any family responsibilities; 
• whether the employee could reasonably expect that they would be requested to work on the public holiday; 
• whether the employee is entitled to receive overtime payments or penalty rates, or a level of remuneration that reflects an expectation of work on the public holiday; 
• the type of employment (i.e. full-time, part-time, casual or shiftwork); 
• the amount of notice given to the employee of the request to work; and 
• the amount of notice of their refusal. 

If your business is likely to request that employees attend for work, you should check your relevant Award, enterprise agreement and contracts of employment to determine whether employees are entitled to penalty rates, or whether some other arrangement can be agreed, such as the substitution for this day with another.   

Substitute day 

If, as an employer, you want to substitute the National Day of Mourning with another working day, you need to reach agreement with your employee or employees. The FWA allows Awards and enterprise agreements to include terms to agree on the substitution of a public holiday for another day. It also allows employers to reach agreement with award free individual employees on the substitution of a public holiday.   

Payment for the National Day of Mourning 

Employees who are not working on a public holiday are entitled to be paid their normal rate of pay for the hours that they would have worked, and part-time employees are not entitled to be paid unless their working hours include Thursday 22 September.   

Casuals are not entitled to be paid unless they work. 

Be aware that many Awards and agreements have penalty rates for time worked on a public holiday. For further advice, contact our Workplace Relations team today.