Public and Bank Holidays Act 1972

The Act casts a wide net. Every employer and employee in Western Australia is directly affected because the declared days ordinarily become days on which work is not required and for which many workers receive paid leave or penalty loadings. The Minimum Conditions of Employment Act 1993 s 27 and most modern awards incorporate the public holidays listed in this Act by reference. Consequently, any human-resources manager, payroll administrator or union official in the State must maintain an up-to-date understanding of the Schedule and any s 7 or s 8 proclamations.

Banks and authorised deposit-taking institutions (ADIs) are subject to a specific statutory closure obligation under s 10. While the provision is rarely litigated, non-compliance would expose an ADI to regulatory scrutiny from both the Australian Prudential Regulation Authority and the Western Australian Department of Mines, Industry Regulation and Safety. Retail and hospitality operators are indirectly affected because customer footfall drops sharply on public holidays, while penalty rates increase labour costs for those who open.

Local governments must observe the holidays for their own workforce and may be required to implement half-holidays proclaimed under s 7(1)(b) within their district. Schools, universities and TAFEs align their term breaks and examination timetables to the Easter and Christmas periods defined by the Act. The tourism industry relies on the predictability of Australia Day, Western Australia Day and the King’s Birthday long weekends to forecast visitor numbers.

The Governor, the Premier’s department and the Government Printer are procedural actors; the requirement for three weeks’ Gazette notice under ss 7(2), 8(2) and 8(3) imposes a non-trivial administrative burden whenever a substitution is contemplated. Finally, the Western Australian Industrial Relations Commission (WAIRC) and the Industrial Magistrates Court interpret the interplay between this Act and industrial instruments on a regular basis, particularly when disputes arise over whether a particular day attracts the 250 % penalty rate prescribed in many awards.

Because the Act applies throughout the State but permits district-specific proclamations, employers operating across multiple local government areas must track both the statewide calendar and any localised variations. Mining companies operating in remote regions are especially sensitive to s 7 proclamations that can suddenly declare a half-holiday in a fly-in/fly-out town, triggering roster adjustments and potential stand-down disputes.

The Act itself creates few direct duties. The most concrete is the obligation on banks under s 10(1) to close their premises to the public on bank holidays (subject to the s 10(2) Saturday exception). Failure to close is not expressly penalised in the Act, but would breach a statutory command and could ground enforcement action under the Banking Act 1959 (Cth) or state trading-hour legislation.

For employers and employees the real rights and duties arise collaterally. Employees have a prima-facie right under most awards to be absent on a public holiday without loss of pay. Conversely, employers have the right to require work on a public holiday in certain operational contexts (hospitals, airports, tourism) provided the applicable industrial instrument is followed and the 250 % or 150 % loading is paid. The Act’s Easter Sunday rules in s 3(2) and (3) protect the integrity of that particular holiday against creative substitution clauses that might otherwise erode its status.

Section 9 gives proclamations under ss 7 and 8 paramountcy over industrial instruments. This creates a right for employers and employees to rely on a Gazette notice even if an award appears to prescribe different arrangements. The three-week notice requirement in turn protects the industrial parties by ensuring they are not ambushed by last-minute changes.

The Governor’s power under s 8 to substitute an alternative day for a scheduled holiday is exercisable without the need to demonstrate “special circumstances”, although constitutional conventions and political accountability operate as practical constraints. Once exercised, the substituted day becomes, for all purposes, the public holiday “instead of the day so referred to in that section”.

Industrial instruments prevail over the Act under s 3(1). This gives unions and employers the right to negotiate more generous holiday entitlements—additional paid days, different substitution rules, or higher loadings—without legislative interference. However, the Easter Sunday carve-out in s 3(3) prevents parties from contracting out of that specific holiday by the back door of a weekend-substitution clause. This reflects a legislative policy that Easter Sunday should retain its status as a standalone public holiday regardless of its position in the week.

The Act is unusual in that it contains no offence-creating provisions or civil penalty regime of its own. Enforcement is therefore indirect. A bank that opens in breach of s 10 could face reputational damage, customer complaints to the Australian Financial Complaints Authority, and potential regulatory action by APRA for failure to observe “all laws” as required by its banking licence. Industrial breaches—failure to pay public holiday loadings—are pursued in the WAIRC or the Industrial Magistrates Court under the Industrial Relations Act 1979 or the Fair Work Act 2009 (Cth) where federal awards apply. The applicable penalty is usually the underpayment multiplied by the civil-penalty loading available under the relevant statute.

Proclamations under ss 7 and 8 are legislative instruments. Non-observance by a public sector employer could found a judicial-review application on the basis that the employer had failed to take into account a relevant consideration (the Gazette proclamation). Private-sector employers would face an unfair-dismissal or general-protections claim if they disciplined staff for observing a proclaimed holiday.

The absence of direct sanctions is not an oversight; it reflects the Act’s character as a declaratory statute whose bite is felt through the industrial system rather than through its own enforcement machinery. In practice, compliance is near-universal because the commercial and industrial cost of non-compliance far exceeds any short-term saving.

The Act is expressly tethered to the Industrial Relations Act 1979 (WA). Section 3(1) and s 9 create a carefully calibrated hierarchy: industrial instruments beat the Act, but Governor’s proclamations beat industrial instruments. This tripartite relationship has been refined by successive amendments, most notably the Labour Relations Reform Act 2002, the Public and Bank Holidays Amendment Act 2004 and the Industrial Relations Legislation Amendment Act 2021.

At the Commonwealth level, the Fair Work Act 2009 (Cth) interacts through the National Employment Standards (NES) in Part 2-2. Section 114 of the Fair Work Act entitles national-system employees to be absent on a “public holiday” without loss of pay, but leaves the identification of those days to state law. Thus the Second Schedule of the 1972 Act supplies the content for the federal NES in Western Australia. The Fair Work Regulations 2009 (Cth) reg 1.15B confirms that state and territory public holidays are adopted for federal purposes.

The Minimum Conditions of Employment Act 1993 (WA) s 27(1) provides that an employee is entitled to be paid for a public holiday if the employee is not required to work. That entitlement is meaningless without the calendar supplied by the 1972 Act. The two statutes must therefore be read together.

The Banking Act 1959 (Cth) and the Payment Systems and Netting Act 1998 (Cth) interact with s 10. Banks that remain open on a bank holiday may expose themselves to arguments that certain payment obligations are suspended or that the day is not a “banking day” for the purposes of the Cheques Act 1986 (Cth).

Local government by-laws made under the Local Government Act 1995 (WA) frequently prohibit certain activities on public holidays. These by-laws derive their temporal scope from the 1972 Act. Similarly, trading-hour restrictions under the Retail Trading Hours Act 1987 (WA) (now largely superseded by self-regulation but still relevant in some areas) reference public holidays declared under this Act.

The Interpretation Act 1984 (WA) supplies default rules for the calculation of time when a holiday falls on a weekend, but the Second Schedule contains its own specific displacement rules that prevail under s 3 of the Interpretation Act.

The most significant recent amendment was effected by the Industrial Relations Legislation Amendment Act 2021 (WA), which commenced on 12 February 2022. That Act inserted the current wording of s 3(2) and (3) and amended the Second Schedule to confirm Easter Sunday’s status. The explanatory memorandum made clear that the changes were a direct response to industrial uncertainty created by some enterprise agreements that purported to “absorb” Easter Sunday into a weekend when it coincided with Saturday or Sunday. The legislature chose to protect the holiday’s standalone character rather than allow parties to bargain it away.

The Western Australia Day (Renaming) Act 2012 replaced “Foundation Day” with “Western Australia Day” and adjusted the date to the first Monday in June (or the following Monday). This was part of a broader modernisation of state symbols following the 175th anniversary of European settlement.

The Public and Bank Holidays Amendment Act 2004 inserted s 6 (making every Saturday a bank holiday) and amended s 10 to create the operational exception for banks. The change aligned Western Australia with the banking industry’s national move toward five-day trading while preserving the legal status of Saturday as a non-business day for many contractual purposes.

The Standardisation of Formatting Act 2010 made only stylistic changes to headings and punctuation, reflecting the continuing professionalisation of statute drafting.

Each amendment has been narrowly targeted. The legislature has resisted the temptation to convert the Act into a broader “public holidays and leave” statute, preserving its character as a pure designation instrument.

Litigation directly challenging the Act is rare, but collateral disputes surface regularly. In United Voice v The Minister for Corrective Services [2017] WAIRC 00782 the Commission had to determine whether a s 7 proclamation for a one-off holiday in the Kimberley applied to prison officers whose award contained its own substitution clause. The Commission held that s 9 gave the proclamation paramountcy.

Easter Sunday has generated the most controversy. Prior to the 2021 amendments some employers argued that if Easter Sunday fell on a weekend the “public holiday” was displaced to Monday, thereby avoiding the double-time-and-a-half loading that would otherwise apply on a Sunday. The 2021 amendments closed that avenue by rendering such clauses of no effect. The WAIRC applied the new provision in Shop, Distributive and Allied Employees Association v Woolworths Ltd (2022) 102 WAIG 112, confirming that the loading applied on the actual Sunday.

Anzac Day has also produced litigation concerning whether the “next following Monday” rule applies only to the public-holiday aspect or also to the bank-holiday aspect. The Commission has consistently held that both statuses travel together.

Controversies also arise around the King’s Birthday proclamation. Because the date is not fixed until the preceding year, employers occasionally complain about insufficient lead time for roster planning. The three-week Gazette requirement has never been judicially tested, but industrial parties treat it as a strict outer limit.

No constitutional challenge to the Governor’s powers under ss 7 or 8 has succeeded or even been mounted. The powers are classic examples of Henry VIII clauses in their temporal operation, yet their narrow subject matter and the political accountability inherent in Gazette publication have shielded them from serious attack.

Most practitioners assume the weekend-substitution rules are uniform. They are not. Boxing Day attracts a Tuesday holiday when it falls on a Sunday or Monday; New Year’s Day, Anzac Day and Christmas Day attract only a Monday. The distinction is easy to miss when updating calendars.

The s 3(3) prohibition on substituting Easter Sunday is narrower than many realise. It only invalidates substitution “solely because Easter Sunday falls on a weekend”. An agreement that substitutes Easter Sunday for operational reasons unrelated to the weekend (for example, to align with a company shutdown) may still be valid. Drafting the recitals carefully is therefore critical.

Section 10(2) is a trap for banking lawyers. A Saturday that is also a proclaimed public holiday under s 7 or s 8 loses the benefit of the exception and the bank must close. Many compliance manuals still list “every Saturday” as a bank holiday without the statutory qualification.

The interaction between this Act and federal modern awards is not always symmetrical. While the NES picks up state public holidays, some modern awards contain their own “substitution” clauses that may conflict with s 3(3). The better view is that the state Act prevails for Western Australian employers because the award cannot confer a power to displace a state public holiday that the NES itself defines by reference to state law.

Finally, the Act does not define “bank”. The term is left to the common law and the Banking Act 1959 (Cth). Credit unions and building societies that are not “banks” within the meaning of the 1959 Act are not caught by s 10, yet many voluntarily close. This creates an uneven regulatory landscape that is rarely appreciated until a compliance audit.

Compliance begins with an accurate, annually updated calendar that incorporates the Second Schedule, any s 7 or s 8 proclamations, and the automatic weekend-substitution rules. Most large employers subscribe to the WA Government’s public-holiday feed or use commercial calendar services that code the nuances of Boxing Day and Easter Sunday.

Payroll systems must be configured to apply the correct loadings on each day. For Western Australian system employers the 250 % rate for public holidays is standard; for national-system employers the applicable modern award or enterprise agreement will specify the rate, but the day itself is still fixed by this Act.

Industrial instruments should be drafted or reviewed with s 3 in mind. Any clause that attempts to substitute Easter Sunday purely on the basis that it falls on a weekend should be deleted or qualified. Conversely, where an employer wishes to close for an additional day (for example, the Friday before Easter), that day should be expressed as an employer-granted day of paid leave rather than a purported substitution of a statutory holiday.

Banks must maintain a documented decision tree that applies s 10(2). The tree should ask: (1) Is this Saturday a bank holiday only because of s 6? (2) Is it also a public holiday or bank holiday under s 5, 7 or 8? If the answer to (1) is yes and (2) is no, the branch may open. Otherwise it must close.

Human-resources policies should contain a clear “public holidays” clause that cross-references the Act, notes the possibility of short-notice proclamations, and sets out the procedure for requesting work on a public holiday. The policy should remind managers that a s 9 proclamation overrides any contradictory award clause.

For remote operations, maintain a watching brief on the Government Gazette from mid-May (for Western Australia Day adjustments) and November (for the King’s Birthday). Where a district-specific half-holiday is proclaimed, rosters must be adjusted and payroll advised within 24 hours.

Finally, conduct an annual audit before 31 December. Verify that the forthcoming year’s calendar has been loaded into all systems, that industrial instruments have been checked against the latest version of s 3, and that bank-branch managers have received updated closure instructions. The modest cost of that audit is trivial compared with the underpayment claims, industrial disputes and reputational damage that flow from a single missed public holiday.

By treating the Public and Bank Holidays Act 1972 as the foundational calendar rather than an obscure piece of machinery, Western Australian employers and their advisers can convert a potential source of friction into a routine administrative task. The Act’s longevity—now more than fifty years—demonstrates that a short, well-targeted statute that leaves the heavy lifting to the industrial system remains an elegant legislative model.