Confusion reigns over Boxing Day public holiday – here’s how it works

Confusion continues to reign within the small businesses community over the Boxing Day public holiday. While most states will take the public holiday on Monday, December 28, there is mass confusion over whether employees can reasonably refuse to work on Saturday, December, 26.

Opposition small business spokesman Bruce Billson released a statement in which he said his office has received calls from entrepreneurs and employees claiming conflicting advice from Fair Work Australia.

“With the existing small business confusion and uncertainty concerning the re-regulation of employment laws, the contradictory advice about ‘Boxing Day’ workplace responsibilities and entitlements is leaving many small business employers, particularly retailers, frankly bewildered.”

The confusion lies in the fact Boxing Day occurs on a Saturday. Usually a public holiday falling on a weekend is substituted for a following Monday, which is still the case this year, but employers are still confused as to whether employees can refuse to work on “reasonable grounds” as is their right on other public holidays under the Fair Work Act.

“For small business employees, it is unclear whether they have access to a ‘reasonable right to refuse’ to work on Boxing Day as this entitlement not to be forced to work on a public holiday, introduced by the former Coalition Government and retained in the Rudd Government regime, applies to designated public holidays, which for many awards is the Monday following December 26 ‘Boxing Day’.”

Additionally, Victorian Chamber of Commerce and Industry manager of workplace relations Alexandra Marriott said in a statement that “both levels of government need to get their story straight, fast, so that employers are not misled into breaking the law over Christmas”.

Most states, except Victoria and WA, have substituted the Boxing Day public holiday for a public holiday on the following Monday, December 28.

However, while many businesses are aware they are not required to pay penalty rates on December 26, several are still unsure as to whether employees could reasonably request not to work – as they usually can on a public holiday.

SmartCompany attempted to call several Government agencies. The Queensland Wage Line said it had no information on the issue, while the Queensland Industrial Rights Office referred to the Fair Work ombudsman.

Upon contacting the NSW Industrial Relations hotline, a message said staff were attending training sessions in order to deliver up-to-date information on new federal industrial relations laws.

However, we are able to confirm the Boxing Day public holiday will not fall on the December 26 and will instead be substituted for the following Monday, December 28, in the following states:

• Queensland
  
• Australian Capital Territory
  
• Tasmania
  
• New South Wales
  
• Northern Territory
  
• South Australia

But in both VIC and WA, both the December 26 and Monday, December 28 will be classified as public holidays.

These new changes mean employers must pay full entitlements and penalty rates, allowing employees in these two states to make a reasonable request not to work on both the Saturday and Monday public holidays.

Upon contacting Fair Work Australia, we are able to confirm employees in the remaining six states, (QLD, ACT, TAS, NSW, NT and ACT), are not able to reasonably request a day off on Saturday, December 28.

The Victorian Chamber of Commerce and Industry, however, has said employers should not be forced to pay a second day of entitlements due to the unusual structure of both holidays.

“It will impact most severely on the health, retail, tourism, hospitality businesses, especially accommodation providers, restaurants and cafes serving Victorians over the summer break.”