Public Holidays and Pay in Australia: NES Rights, Base-Rate Pay, and Award Penalty Rates

Australian employees have a right under the Fair Work Act to be absent from work on a public holiday, paid at their base rate for the hours they would have worked, but extra pay for actually working a public holiday comes from the applicable award or agreement, not from the National Employment Standards themselves.

This guide covers the public holiday provisions in Division 10 of Part 2-2 of the Fair Work Act 2009 (Cth), sections 114 to 116, which apply nationally regardless of which state or territory an employee works in. It does not attempt to list every state and territory's public holiday dates, which change and are set separately under state and territory law; see the Where to Check Your State or Territory's Calendar section below for where to find the current list.

The Right to Be Absent on a Public Holiday

Section 114(1) entitles an employee to be absent from work on a day, or part-day, that is a public holiday in the place where they are based for work purposes. That absence right is not absolute, though: section 114(2) allows an employer to request an employee work on a public holiday, but only if the request is reasonable. Under section 114(3), an employee can refuse the request if either the request itself was not reasonable, or the refusal is reasonable, which are treated as two independent questions rather than a single test.

Section 114(4) lists the factors that must be taken into account in deciding whether a request, or a refusal, is reasonable: the nature of the employer's workplace or enterprise and its operational requirements, and the nature of the employee's work; the employee's personal circumstances, including family responsibilities; whether the employee could reasonably have expected to be asked to work that day; whether the employee is entitled to overtime, penalty rates, or other compensation reflecting an expectation of holiday work; the employee's type of employment, whether full-time, part-time, casual, or shiftwork; how much notice the employer gave when making the request; how much notice the employee gave when refusing; and any other relevant matter. Notably, factor (d) treats an employee's entitlement to penalty rates as something to be weighed in the reasonableness assessment, not something section 114 itself creates; that entitlement, where it exists, comes from elsewhere.

Pay for Not Working: Base Rate Only

Where an employee is absent on a public holiday under Division 10, section 116 requires the employer to pay the employee at their base rate of pay for the ordinary hours they would have worked that day, or part-day. This is a floor payment for not working, calculated at the plain base rate, with no additional loading, allowance, bonus, or penalty component built into the National Employment Standards themselves.

Pay for Working a Public Holiday: That Comes From Your Award, Not the NES

A separate and commonly misunderstood question is what an employee is paid if they do work a public holiday. The National Employment Standards do not set a penalty rate for public holiday work at all; sections 114 to 116 grant only the right to be absent and base-rate pay for that absence. The power to set penalty rates for holiday work instead sits in Part 2-3 of the Fair Work Act, which governs modern awards: section 139(1) allows a modern award to include terms about overtime and penalty rates, including specifically for employees working on weekends or public holidays. A related provision, section 135A, requires the Fair Work Commission to ensure penalty and overtime rates are not reduced when it varies modern awards, which only makes sense as a protection for a rate the award itself sets and the Commission administers, reinforcing that this is award territory rather than a National Employment Standard.

In practice, this means whether, and how much, extra pay applies for working a public holiday depends entirely on the applicable modern award, enterprise agreement, or employment contract, not on a fixed national figure. An employee or employer wanting to confirm the applicable penalty rate should check the specific classification under their award using the Fair Work Ombudsman's Pay and Conditions Tool, or the relevant award's own pay guide, rather than assuming a single national rate applies. This is the same pattern that applies to notice periods and redundancy pay under the NES: see recordinglaw.com's guides to notice of termination and redundancy pay for how the NES sets a floor while an award or agreement can provide more. recordinglaw.com's minimum wage and pay rates guide covers how base rates of pay are worked out more generally. An employer that fails to pay the penalty rate its own award actually requires may be underpaying wages; see the wage theft and underpayment guide for that separate issue.

What Counts as a Public Holiday

Section 115 defines a public holiday in two parts. First, eight days are listed nationally by name and date: 1 January (New Year's Day), 26 January (Australia Day), Good Friday, Easter Monday, 25 April (Anzac Day), the Sovereign's birthday as celebrated in the relevant state or territory or region, 25 December (Christmas Day), and 26 December (Boxing Day). Second, any other day or part-day declared or prescribed under state or territory law to be observed generally as a public holiday in that state or territory, or a region of it, is also a public holiday for Fair Work Act purposes, unless excluded by regulation.

This structure is why public holidays are not identical across the country: the eight days above apply nationally by name, but every other public holiday, whether a state-specific day or a local show day, is set under that state or territory's own law, and there is no single national gazette listing them. The Fair Work Act incorporates whatever each state or territory declares, rather than setting those additional days itself.

Substituted Public Holidays

Section 115(2) provides that where a day is substituted, under state or territory law, for what would otherwise be a public holiday, such as moving a holiday to a Monday when the original date falls on a weekend, the substituted day is the public holiday for Fair Work Act purposes. Section 115(3) and (4) also allow a modern award or enterprise agreement, or an employer and an award or agreement-free employee, to agree to substitute a different day or part-day.

Casual Employees and Public Holidays

Division 10's text does not contain an explicit casual carve-out clause comparable to the ones that exclude casual service from notice and redundancy calculations elsewhere in the Act. In practice, casual employees generally are not paid for a public holiday they do not work, because the section 116 payment formula is tied to the employee's ordinary hours of work on that day, and a casual employee without a rostered shift that day typically has no ordinary hours for the formula to apply to, rather than being excluded by a specific clause. See recordinglaw.com's casual employee rights guide for how casual employment is treated across the National Employment Standards more broadly.

Where to Check Your State or Territory's Calendar

Because only eight of Australia's public holidays are set nationally, and the rest are declared separately by each state and territory, the exact list of dates for a given year is best confirmed directly with that jurisdiction rather than from a fixed table, which would go out of date every year. The Fair Work Ombudsman itself compiles its own public holiday lists from what each state and territory government publishes, rather than being the original source. Readers can check the current calendar through their own state or territory government's official website, or through the Fair Work Ombudsman's public holidays pages, which link out to each jurisdiction. Public holiday pay is one part of the wider set of minimum entitlements under the National Employment Standards; see recordinglaw.com's Australia employment law hub for the full list.

This article provides general legal information about Division 10 of the Fair Work Act 2009 (Cth), sections 114 to 116, current as at 18 August 2026. It does not list state or territory public holiday dates, which change annually and are set under separate state and territory law; check your jurisdiction's own government website for the current calendar. This is not legal advice and does not account for individual circumstances. Penalty rates for working a public holiday depend on the applicable award, enterprise agreement, or contract; confirm the specific rate through the Fair Work Ombudsman's Pay and Conditions Tool or the relevant award's pay guide. For advice about a specific situation, consult a legal practitioner admitted in the relevant Australian state or territory.