AN120089 – Building and Construction Industry (State) Award
36. PUBLIC HOLIDAYS AND HOLIDAY WORK
36.1 An employee, other than a casual employee (as defined), shall be entitled to the following holidays without deduction of pay. Provided that if any other day be by a State Act of Parliament or State Proclamation substituted for any of the said holidays, the day so substituted shall be observed:
New Year's Day
Australia Day
Good Friday
Easter Monday
Anzac Day
Queen's Birthday
Eight Hour Day or Labour Day
Christmas Day
Boxing Day
Provided that an employer whose business is situated near State or Territory border and whose operations traverse the border may elect to follow a particular State or Territory's public holidays, subject to agreement with the appropriate union.
36.2 In addition to the holidays prescribed in subclause 36.1 of this clause, an additional public holiday shall apply to employees in the manner set out below. Provided that an employer whose business is situated near a State or Territory border and whose operations traverse the border may elect to follow a particular State or Territory's public holidays, subject to agreement with the employees and/or their nominated representative (where applicable).
(i) The first Monday in December of each year shall be the industry picnic day.
(ii) All employees shall, as far as practicable, be given and shall take this day as industry picnic day without deduction of pay. Any employee required to work on this day shall be paid at the rate of double time and one-half for all time worked. Provided that an employee who attends for work as required on this day shall be paid for not less than four hours' work.
(iii) An employer may require from an employee evidence of her or his attendance at the industry picnic and the production of the butt of an industry picnic ticket issued for the industry picnic shall be sufficient evidence of such attendance. Where such evidence is requested by the employer payment need not be made unless evidence is produced.
(iv) Where an employer holds a regular picnic for their employees on some other working day during the year such day may be given and may be taken as the industry picnic day in lieu of the industry picnic day here fixed.
(v) This clause shall apply to employees working within the Counties of Cumberland, Northumberland and Camden and in such other areas where an industry picnic is organised in the industry.
36.3 By agreement between any employer, the employees and/or their nominated representative (where applicable) other days may be substituted for the said days or any of them as to such employer's undertaking.
36.4 Where an additional or substitute public holiday, excluding Show Day is proclaimed by Order of Council or otherwise gazetted by authority of the Australian or a State Government under any Act throughout any State or part thereof, such day shall, within the defined locality, be deemed to be a holiday for the purposes of this award. This exclusion shall not apply to the Newcastle (NSW) Show Day, or to other show Days specifically referred to elsewhere in this clause. Provided that an employee not be entitled to the benefit of more than one holiday upon such occasion.
36.5 Provided that:
(a) An employer who terminates the employment of an employee except for reasons of misconduct or incompetency (proof of which shall lie upon the employer) shall pay the employee a day's ordinary wages for each holiday prescribed in 36.1 and 36.2 or each holiday in a group as prescribed in paragraph (b) of this subclause which falls within 10 consecutive calendar days after the day of termination.
(b) Where any two or more of the holidays prescribed in this award occur within a 7 day span, such holidays shall for the purpose of this award be a group of holidays. If the first day of the group of holidays falls within 10 consecutive calendar days after termination, the whole group shall be deemed to fall within the 10 consecutive calendar days:
Christmas Day, Boxing Day and New Year's Day shall be regarded as a group.
(c) No employee shall be entitled to receive payment from more than one employer in respect to the same public holiday or group of holidays.
(d) The employee has worked as required by their employer the working day immediately before and the working day immediately after such holiday or is absent with the permission of their employer or is absent with reasonable causes. Absence arising by termination of employment by the employee shall not be reasonable cause.
36.6 The provisions of this clause shall not apply to any apprentice who is required to attend a technical college or other institution for the purpose of receiving instruction and/or submitting themself for any examination. In such a case the employer and apprentice mutually may agree that the apprentice shall be allowed another working day off with pay in lieu of the picnic day. Where this is not practicable the apprentice shall be paid at the overtime rates prescribed herein.
36.7 Where an employee is working on a part-time basis pursuant to the provisions of subclause 13.3 of this award, the holidays provisions in this clause shall only apply in respect of that part of a holiday or group of holidays which coincides with the ordinary hours of part-time work applicable to that employee.
