Our dedicated Aged Care facilities and their employees are often required to operate around the clock, with no firm shut down around the Christmas and New Year period. This is often a challenging time for our aged care leaders, to ensure that rostering and operational requirements are sufficiently met across a period of multiple public holidays.
Under the NSWNMA and HSU NSW Enterprise Agreement 2017 – 2020 (EA), employers may request an employee to work on a particular holiday as specified in Clause 19.5. It is important for employers governed by this EA to however recognise the additional public holiday that their employees may be entitled to. This article aims to explain the Additional Public Holiday clause under the NSWNMA and HSU NSW Enterprise Agreement 2017 – 2020 and limit any provisional risk for our aged care employers.
Let’s dig a little deeper
Under the NSWNMA and HSU NSW Enterprise Agreement 2017 – 2020, clause 19.4 and 19.5 defines both public and local holidays as below:
19.4 Public holidays shall be allowed to employees without loss of ordinary pay.
19.5 (a) For the purposes of this agreement, the following shall be deemed to be public
- New Year's Day; Australia Day; Good Friday; Easter Saturday; Easter Sunday; Easter Monday; Anzac Day; Queen's Birthday; Labour Day, Christmas Day; Boxing Day;
- any other day, or part-day, declared or prescribed by or under a law of a State or Territory to be observed generally within the State or Territory as a public holiday, other than a day or part-day, or a kind of day or part-day, that is excluded by the regulations from counting as a public holiday; and
Local Public Holiday
- any other day, or part-day, declared or prescribed by or under a law of a State or Territory to be observed within a region of the State or Territory, as a public holiday, other than a day or part-day, or a kind of day or part-day, that is excluded by the regulations from counting as a public holiday.
(b) If, under (or in accordance with a procedure under) a law of a State or Territory, a day or part-day is substituted for a day or part-day that would otherwise be a public holiday because of subclause 19.5(a), then the substituted day or part-day is the public holiday.
This clause is relatively straightforward for employers to interpret, regardless of location. An often-forgotten or mis understood clause of this EA however is the provision of an additional public holiday. Let’s look at this clause a little closer.
19.5 (c) Additional Public Holiday
(c) Where, in accordance with clause 19.5(a)(iii):
- a full day is proclaimed and observed as a local public holiday, within the calendar year and within the area in which the facility is situated no additional public holiday day is granted by this sub-clause;
- no local public holiday is proclaimed and observed within the calendar year and within the area in which the facility is situated a full day will be observed as an Additional Public Holiday between Christmas and New Year, within the days Monday to Friday inclusive and not coinciding with a date that is already a gazetted public holiday for that calendar year;
- a part of a day is proclaimed and observed as a local public holiday within the calendar year and within the area in which the facility is situated a full day will be substituted and observed as an Additional Public Holiday to be taken between Christmas and New Year, within the days Monday to Friday inclusive and not coinciding with a date that is already a gazetted public holiday for that calendar year.
(d) The employer and employees may agree to substitute another day for a public holiday observed at 19.5.
What does this really mean?
- Where a local public holiday is observed within the area of a facility, within the timeframe of a calendar year, which is not defined by clause 19.5 (a) (such as a local Show day, a local Race day, or picnic day etc,) then an additional public holiday will not need to be granted.
- Where no local public holidays are observed in a calendar year within the area that a facility is located, the below is granted:
- A full day will be observed as an additional public holiday.
- The additional public holiday can be taken between the Christmas and New Year period, within the days of Monday and Friday inclusive.
- The additional public holiday cannot coincide on a date that is already a public holiday (such as Christmas day).
If part of a day is observed as a local public holiday, in the area a facility is situation, the Additional Public holiday will be observed (as above) in substitution to the part day.
Joanne works at an aged care facility in NSW. Within the area that Joanne’s facility is located, the local government observes a local public holiday, ‘Show day’. This means that Joanne is not permitted an additional public holiday over the Christmas/ New Year period.
Ben works at an aged care facility is Regional NSW. The area that Ben’s facility is in does not observe any local public holidays. This means that Ben is entitled to one additional public holiday in a calendar year that he can use between Monday to Friday during the Christmas/New Year period.
Consultation and approval:
As with all leave types and conditions, it is important to ensure that a clear consultation and approval process is known by your employees. For those employers in an area that does not observe any local public holidays, employees should be consulted with to ensure they are aware of their right to an additional public holiday over the Christmas / New Year period and be asked to submit their leave requests well in advance of the festive season to allow your organisation to prepare for, and ensure sufficient coverage is rostered.
Where can employers receive help?
To find out what local public holidays may apply to your area, please visit: https://publicholidays.com.au/2018-dates/
If you are unsure what conditions cover your employees, or need help interpreting your Enterprise Agreement, our team of experts are here to help. Please start the conversion with one of our team today on 1300 406 005.