44A Transferring part of public holiday
  • (1) This section applies if—

    • (a) an employee is to start work on a day and finish work on the following day; and

    (2) If the criterion in subsection (3) is met, the employee and his or her employer may agree in writing (whether in an employment agreement or otherwise)—

    • (a) that part of one or both days specified in section 44(1) is to be treated as not part of a public holiday; and

    • (b) that,—

      • (i) if the agreement relates to only 1 day specified in section 44(1), a period of 24 hours is to be treated as a public holiday if the period—

        • (A) is to start or finish during the day specified in section 44(1); and

        • (B) includes the period from when the employee is to start work to when the employee is to finish work:

      • (ii) if the agreement relates to 2 days specified in section 44(1), 2 separate periods of 24 hours are to be treated as public holidays if each period—

        • (A) is to start or finish during the days specified in section 44(1); and

        • (B) includes the period from when the employee is to start work to when the employee is to finish work.

    (3) The criterion is that the purpose of the transfer is not to avoid the employee's entitlements under sections 50 and 56 for working on a public holiday, although the transfer may have that effect.

    (4) Where an agreement to transfer part of a public holiday applies, the employee’s entitlements under sections 50 and 56 apply only if the employee works during the period of 24 hours or 2 separate periods of 24 hours (as the case may be) to which that part of the public holiday has been transferred.

    (5) To avoid doubt, an agreement under this section must not reduce the total number of paid public holidays that the employee is otherwise entitled to in any year.

    Example

    An employee is to work from 10 pm on 24 April to 6 am on Anzac Day and from 10 pm on Anzac Day to 6 am on 26 April.

    The employer and employee can agree to treat 10 pm to midnight on Anzac Day as not part of a public holiday in exchange for treating a period of 24 hours that finishes on Anzac Day as a public holiday. Just when the 24-hour period starts before or finishes after a work period is a matter for the parties to agree on. For instance, they could agree that it runs from midday on 24 April to midday on Anzac Day.

    Section 44A: substituted, on 1 April 2011, by section 12 of the Holidays Amendment Act 2010 (2010 No 126).