Public Holidays Act 2010

The Act operates around a concise set of core concepts that structure the law of public holidays in the State. These concepts appear in the definitions and the operative provisions.

Public holiday, public holiday for the whole State, part-day: The Act defines “public holiday” as a day or part-day declared to be a public holiday by or under this Act (s 3(1)). The operative sections make clear that public holidays may be declared for the whole State or for specified parts of the State (s 5(2)) and that particular provisions apply to specified parts when an order so provides (s 5).

Standard public holidays and default substitution rules: Section 4 sets out the list of standard public holidays that are declared for the whole State. Each standard holiday is named and accompanied by rules governing what occurs when those dates fall on weekends. For example, New Year’s Day is 1 January, and when 1 January falls on a Saturday or Sunday an additional public holiday must be observed on the following Monday (s 4(a)). Australia Day is 26 January, and when it falls on a Saturday or Sunday there is no public holiday on that weekend day and instead the following Monday is a public holiday (s 4(b)). Comparable rules are stated for Christmas Day and Boxing Day with differing outcomes based on whether the date falls on a Saturday or a Sunday (s 4(j)-(k)). Public holidays in the Easter period are specified as the days publicly observed as Good Friday, the day after Good Friday, the Sunday following Good Friday, and the Monday following Good Friday (s 4(c)-(f)). The King’s Birthday and Labour Day are tied to specified Mondays in June and October respectively (s 4(h), (i)). Anzac Day is set at 25 April (s 4(g)).

Ministerial discretion to add, cancel or substitute: The Minister may, by order on the NSW legislation website, declare an additional public holiday for a specified year; declare it for the whole State or for a part of the State; and may cancel such a holiday by order (s 5(1)-(3)). Section 6 allows the Minister to declare, by order, that a specified day in a particular year is to be a public holiday in substitution for a specified day that would otherwise be a public holiday; the substituted day then has the status of a public holiday and the original day ceases to be one (s 6(1)-(2)). Both the declaration and cancellation powers and substitution power carry time-limited publication requirements aimed at advance notice, specifically a minimum seven-day publication requirement (s 5(1), (3); s 6(3)).

Local event days distinct from public holidays: The Act recognises “local event days” which the Minister may declare at the request of a council for a local government area (s 8(1)). The Minister must be satisfied that the day is, and will be observed as, of special significance to the local community (s 8(2)). The Act expressly provides that declaration of a local event day does not make that day a public holiday (s 8(4)). Local event day orders must also be published on the NSW legislation website at least seven days before the day (s 8(3)).

Employee entitlements via Commonwealth law applied as State law: Section 7 imports two Fair Work Act 2009 provisions and applies them as laws of New South Wales: s 114 (entitlement to be absent from employment on public holiday) and s 116 (payment for absence on public holiday) of the Fair Work Act (s 7(1)). Section 7(2) deems the applied provisions to be industrial instruments for the purposes of Parts 1 and 2 of Chapter 7 of the Industrial Relations Act 1996, which deal with breaches of industrial instruments and recovery of remuneration and other amounts. This creates an enforcement path for public-holiday-related workplace claims under the State’s industrial relations framework.

Delegation and regulations: The Minister may delegate functions under the Act, except the power of delegation itself, to the Director-General or to holders of prescribed positions in the Director-General’s Department (s 9). The Governor may make regulations not inconsistent with the Act for matters required or convenient to carry out the Act (s 10). Schedule 1 provides the regulations power with specific authorisation for savings and transitional provisions and places limits on retrospective effect that would prejudice persons other than the State (Schedule 1, cl 1(1)-(3)).

Repeal and transitional saving: The Act repeals the Banks and Bank Holidays Act 1912 (s 11) and contains saving provisions so that days or parts of days appointed under the former Act to be observed as public holidays or half-holidays are taken to have been declared as public holidays under the new Act (Schedule 1 Pt 2 cl 4). The Act also contains commencement staging for certain schedules (s 2).

Review requirement: The Minister must review the Act to determine whether its policy objectives remain valid and whether its terms remain appropriate, to be undertaken as soon as possible after five years from assent, and a report on the review must be tabled in each House of Parliament within 12 months after the end of the five-year period (s 12(1)-(3)).

These are the key conceptual building blocks the Act uses to allocate rights and decision-making, to set notice requirements, and to link the public-holiday regime to workplace entitlements and industrial enforcement mechanisms.

The Act’s mechanics allocate rights, obligations and decision-making responsibilities among a limited set of actors. The text identifies primary groups and the statutory roles that affect them.

Employees and employers in the State: The Act directly affects employees and employers by applying parts of the Fair Work Act 2009 , specifically s 114 and s 116 , as laws of New South Wales (s 7(1)). Those provisions concern entitlement to be absent from employment on a public holiday and payment for absence on a public holiday. By deeming those applied provisions to be industrial instruments for the purposes of certain Parts of the Industrial Relations Act 1996, the Act brings workplace disputes about public-holiday entitlements into the State’s industrial relations enforcement and recovery machinery (s 7(2)). Therefore employers in the State must observe the presence of public holidays created or modified under this Act and apply the entitlements (s 4, s 5, s 6, s 7).

The Minister: The Act vests decisive authority in the Minister to declare additional public holidays, cancel them, and substitute public holidays by order on the NSW legislation website (s 5(1)-(3); s 6(1)-(3)). The Minister also may declare local event days at the request of a council, subject to an internal satisfaction test that the day is and will be observed as of special significance to the local community (s 8(1)-(3)). The Minister’s decisions are subject to statutory publication lead times described below. The power to delegate (s 9) assigns some practical exercise of these powers to officials but the statutory allocation of final political responsibility resides with the Minister.

Local councils: Councils may request the Minister to declare a local event day for a local government area or part of it (s 8(1)). The Minister must be satisfied regarding the day’s special significance to the community before declaring it (s 8(2)). The Act explicitly denies that a local event day is a public holiday (s 8(4)), which means councils cannot themselves create public-holiday status by local resolution; they must seek the Minister’s order and even then the declaration will not convert the day into a public holiday (s 8).

Director-General and departmental officers: The Minister may delegate functions under the Act, other than the delegation power, to the Director-General or holders of positions in the Director-General’s Department prescribed by regulations (s 9). This places the Director-General and specified departmental officers as the principal executive level that can act in the Minister’s stead where delegation occurs, subject to the limitations on delegation in the Act.

The Governor and the regulations-making function: The Governor may make regulations not inconsistent with the Act in relation to matters required or convenient to give effect to the Act (s 10). Regulations may also contain savings or transitional provisions in consequence of the enactment of the Act, including making those provisions take effect from the date of assent where the regulations so provide, subject to limits in Schedule 1 (Sch 1 cl 1).

The State, authorities and third parties affected by transitional provisions: Schedule 1 contains limitations on regulations that purport to operate earlier than their publication where such retrospective effect would prejudice persons other than the State or an authority of the State (Sch 1 cl 1(3)(a)-(b)). This identifies that the State and its authorities occupy a different status than private persons with respect to the permissible retrospective operation of regulations made under the Act.

Persons relying on public holiday declarations: Workers, employers, payroll and rostering administrators, and businesses in affected localities are all ancillary affected parties. Public holidays are statutory events that affect work scheduling and remuneration entitlements. The Act’s application of Fair Work provisions and the requirement that orders be published on the NSW legislation website at least seven days beforehand (s 5(1), s 6(3), s 8(3)) identifies the need for those third parties to monitor statutory notices to prepare and comply.

Former Act stakeholders: The Act repeals the Banks and Bank Holidays Act 1912 (s 11), but Schedule 1 provides for saving of local public holidays declared under the former Act, taking them to have been declared under s 5 of the new Act (Schedule 1 Pt 2 cl 4). Parties with expectations founded on the former Act therefore have a statutory bridge under the new regime.

Overall, the Act allocates decision-making to the Minister, execution potential to the Director-General and prescribed departmental positions, legal entitlements to employees and corresponding obligations to employers (by importing Fair Work provisions), and limited participatory influence to councils in respect of local event days.

The Act establishes discrete statutory duties and rights principally through three mechanisms: specified public holiday declarations and rules (s 4), ministerial order powers with publication requirements (s 5, s 6), and the importation of workplace entitlements from the Fair Work Act (s 7). It also imposes administrative duties around publication, delegation, and review.

Statutory rights of workers: The Act imports two substantive workplace rights by applying as State law sections 114 and 116 of the Fair Work Act 2009 (s 7(1)). Section 114 of the Fair Work Act concerns an employee’s entitlement to be absent from employment on a public holiday, and s 116 concerns payment for absence on a public holiday. Those provisions, as applied by the Act, give employees rights in relation to absence and remuneration when a public holiday occurs. The Act does not restate the content of those Fair Work provisions; it imports them and makes them part of New South Wales law for employees and employers in the State (s 7(1)).

Employer obligations and enforcement pathways: By applying the Fair Work provisions as laws of the State, the Act creates employer obligations enforceable under the framework of the State’s Industrial Relations Act 1996. The text expressly deems the applied Fair Work provisions to be industrial instruments for the purposes of Parts 1 and 2 of Chapter 7 of the Industrial Relations Act 1996, which deal with breaches of industrial instruments and recovery of remuneration and other amounts (s 7(2)). Therefore employers who fail to honour the applied entitlements can be subject to breach and recovery processes under the Industrial Relations Act.

Duty to give public notice: The Minister must publish any order under s 5 (declaring or cancelling an additional public holiday) and s 6 (substituting a public holiday) on the NSW legislation website not less than 7 days before the public holiday. The substituted-day order must be published at least 7 days before the earlier of the original day and the substituted day (s 5(1), (3); s 6(3)). The Minister must likewise publish any local event day order on the NSW legislation website at least seven days before the day (s 8(3)). These publication provisions create a legal duty on the executive to provide advance notice of changes to public-holiday status.

Rights and limits on local event days: Councils may request a local event day, but the Minister is not to declare a local event day unless satisfied it is and will be observed as a day of special significance to the community in the area concerned (s 8(1)-(2)). The Act also stipulates that declaration of a local event day does not make it a public holiday (s 8(4)). Thus councils can initiate requests but cannot unilaterally confer public-holiday legal status; any local event day is formally distinct from a public holiday.

Ministerial delegation and limits: The Minister may delegate any function under the Act other than the power of delegation itself to the Director-General or holders of prescribed positions in the Director-General’s Department (s 9). This creates a duty for the Minister to exercise oversight of delegation decisions and for delegates to act within the scope delegated.

Regulations and transitional duties: The Governor may make regulations not inconsistent with the Act for matters necessary or convenient to give effect to the Act (s 10). Schedule 1 authorises the regulations to include savings and transitional provisions consequential on the enactment of this Act and allows those regulations, if they so provide, to take effect from the date of assent or a later date, but with constraints on retrospective prejudice to persons other than the State or an authority of the State (Schedule 1 cl 1(1)-(3)). This places a duty on those making regulations to respect the non-prejudice limitation.

Review obligation: The Minister must review the Act as soon as possible after five years from the date of assent to determine whether the policy objectives remain valid and whether the terms of the Act remain appropriate. The Minister must table a report on the review outcome in each House of Parliament within 12 months after the end of that five-year period (s 12(1)-(3)). This creates an ongoing monitoring duty on the Minister and a parliamentary reporting obligation.

Other duties by implication: By declaring standard public holidays and prescribing substitution rules in s 4, the Act creates operational obligations and rights in practice; for example, when 1 January falls on a Saturday or Sunday there is to be an additional public holiday on the following Monday (s 4(a)), and when 26 January is a weekend the following Monday is the public holiday rather than the weekend date (s 4(b)). These rules impose rights on employees to be absent and to receive payment under the adopted Fair Work provisions when those days are public holidays.

The Act does not specify criminal penalties or fines within the text for contravening the public-holiday rules themselves; instead it links entitlements to the industrial enforcement machinery (s 7(2)) and authorises regulations (s 10) which could, if made, address enforcement modalities.

The Act’s text does not create standalone criminal offences or civil penalty provisions within its body text for non-compliance with the public-holiday declarations. Enforcement and remedies are routed through industrial instruments and the regulations power, with the following observable mechanisms present in the text.

Industrial enforcement via deemed industrial instruments: Section 7(2) expressly deems the Fair Work Act provisions that are applied by s 7(1) to be “industrial instruments” for the purposes of Parts 1 and 2 of Chapter 7 of the Industrial Relations Act 1996. Those parts of the Industrial Relations Act concern breach of industrial instruments and recovery of remuneration and other amounts. In practical terms this means workplace disputes arising from public-holiday entitlements (as incorporated by the Fair Work provisions) can be pursued and remedied through the State’s industrial relations enforcement framework. The Act therefore channels enforcement of employee entitlements to the industrial-relations mechanisms provided under the Industrial Relations Act rather than establishing new standalone penalties in this Act.

Regulations power may enable supplementary enforcement: The Governor may make regulations not inconsistent with the Act for matters necessary or convenient to carry out or give effect to the Act (s 10). Regulations might, subject to the content of any regulations that are actually made, establish prescribed forms, procedural requirements, or specify administrative penalties, but the text does not itself state that regulations have been made or what they contain. The Act’s Schedule 1 permits regulations to include savings and transitional provisions consequential on the Act’s enactment and sets limits on retrospective operation that prejudices private persons (Sch 1 cl 1(1)-(3)). Any regulatory enforcement route must therefore be consistent with those statutory constraints.

Publication requirements as a legal safeguard: The Act imposes time-bound publication requirements for Ministerial orders under s 5, s 6 and s 8. Orders declaring or cancelling additional public holidays or substituting public holidays must be published at least seven days before the public holiday (s 5(1), (3); s 6(3)). Local event day declarations must likewise be published at least seven days before the local event day (s 8(3)). These requirements are procedural safeguards intended to provide notice to affected parties. The text, however, does not specify the legal consequences of non-compliance with the publication requirement; that question would turn on statutory interpretation and any relevant industrial or administrative law principles not set out in the text.

No express criminal penalties in the Act text: The Act does not include express offences, monetary penalties, or enforcement sanctions for breaches of the public-holiday regime in its statutory text. Consequently, direct enforcement action for contraventions of public-holiday obligations will arise from the industrial remedies available when the Fair Work provisions, as applied, are breached and pursued under the Industrial Relations Act (s 7(2)).

Transitional savings and limits to retrospective regulation: Schedule 1 establishes that regulations may take effect from assent or later (Sch 1 cl 1(2)), but also prescribes that if a regulation purports to take effect earlier than its publication, it must not operate so as to prejudice persons other than the State or an authority of the State (Sch 1 cl 1(3)(a)-(b)). This limits the capacity for retroactive regulation to be used as an enforcement instrument against private persons.

Administrative oversight: The Minister must review the Act five years after assent and table a report within 12 months thereafter (s 12). This oversight mechanism may lead to statutory amendments or changed enforcement arrangements, but the Act does not spell out enforcement outcomes; it merely sets a schedule for reassessment and parliamentary reporting.

In sum, the Act relies on two principal enforcement pathways in the statutory text: industrial enforcement via the Industrial Relations Act for breaches of the incorporated Fair Work provisions, and the potential for regulations to provide further procedural detail or regulatory instruments. The Act itself does not create fines or criminal offences within its operative sections.

The Act interacts with Commonwealth and State legislation and with the repealed Banks and Bank Holidays Act 1912. The text establishes express connections and procedural relationships with other legal instruments.

Integration of Commonwealth Fair Work Act provisions: Section 7 applies sections 114 and 116 of the Fair Work Act 2009 (a Commonwealth Act) as laws of New South Wales in respect of employees and employers in the State (s 7(1)). Those sections of the Fair Work Act deal with entitlement to be absent from employment on a public holiday and payment for absence on a public holiday. By applying these provisions as State law the Act creates a point of legal integration where Commonwealth statutory content governs workplace entitlements in the State context. The text does not attempt to restate the substance of those Fair Work provisions; it imports them and makes them applicable to New South Wales.

Deeming to the Industrial Relations Act: Section 7(2) goes further by deeming the applied Fair Work provisions to be industrial instruments for the purposes of Parts 1 and 2 of Chapter 7 of the Industrial Relations Act 1996. Those Parts relate to breach of industrial instruments and recovery of remuneration and other amounts. The effect is to embed public-holiday-related workplace entitlements within the State’s industrial relations enforcement architecture, permitting breaches to be addressed under the Industrial Relations Act framework without creating parallel enforcement mechanisms within the Public Holidays Act itself.

Repeal and savings with respect to prior State law: The Act repeals the Banks and Bank Holidays Act 1912 (s 11). Schedule 1 Pt 2 contains a saving that a day or part-day appointed under section 19(3) of the former Act to be observed after repeal of the former Act as a public holiday or half-holiday is taken to have been declared as a public holiday under s 5 of the current Act (Schedule 1 Pt 2 cl 4). This preserves continuity for pre-existing local public holiday appointments made under the former statute.

Regulations must be consistent with the Act and may provide transitional provisions: The Governor may make regulations not inconsistent with the Act for carrying out or giving effect to it (s 10). Schedule 1 authorises the regulations to contain savings or transitional provisions consequential on the enactment of the Act and permits such provisions, if the regulations so provide, to take effect from the date of assent or a later date, subject to limits on retrospective prejudice (Sch 1 cl 1(1)-(3)). This enables the regulations to interact with the legal status of rights and liabilities arising under the Act and under prior statutory schemes.

Delegation and departmental governance: The Minister’s power to delegate functions under the Act (other than the delegation power itself) to the Director-General or prescribed departmental positions (s 9) creates an operational interaction between the Act and the administrative law and employment-law rules that govern departmental officers and their exercise of delegated statutory powers.

Publication requirements and the NSW legislation website: The Act prescribes that orders under ss 5, 6 and 8 must be published on the NSW legislation website at least seven days before the relevant day (s 5(1), (3); s 6(3); s 8(3)). This creates an interaction between statutory administrative procedure and the State’s official statutory publication regime. The Act thereby establishes a public-law interface requiring executive action to be made publicly available to affect the rights and obligations of third parties.

Review and parliamentary reporting: Section 12 mandates that the Minister review the Act five years after assent and table a report in each House of Parliament within 12 months after the end of the five-year period (s 12(1)-(3)). This places the Act within the parliamentary accountability architecture and provides a statutory mechanism to consider alignment with other laws and policy changes.

Limitations on retrospective regulatory effect: Schedule 1 stipulates that regulations taking effect from a date earlier than publication cannot operate so as to affect, in a manner prejudicial to a person other than the State or an authority of the State, rights existing before publication or impose liabilities for past acts or omissions (Sch 1 cl 1(3)(a)-(b)). This interacts with general principles of retrospective legislation and protects private-party rights against prejudicial retrospective regulation.

In short, the Act imports Commonwealth workplace provisions into State law, routes enforcement through the State’s Industrial Relations Act, repeals and preserves parts of a former State statute, and delegates further detail and transitional powers to regulation, all while imposing publication and review requirements to anchor executive action in transparent procedures.

The Act text contains a small number of explicit amendment and commencement notes within its provisions and schedule material. The information present in the statutory text that bears on amendment and commencement is as follows.

Commencement: Section 2 specifies the commencement dates for the Act. Subsection (1) provides that the Act commences on 31 December 2010, except as otherwise provided by subsection (2). Subsection (2) specifies that Schedule 2 commences on 31 December 2011 (s 2(1)-(2)). Schedule 2 is shown in the text as being repealed with an amendment notation (see below), which indicates that some schedule-related enactment history occurred after initial passage.

Amendment notation to s 4: Section 4 carries an amendment annotation at the end of the section: “s 4: Subst 2010 No 115, Sch 2.2. Am 2022 No 59, Sch 1.32.” This indicates that section 4 was substituted in 2010 by No 115, Schedule 2.2 and that it was amended in 2022 by No 59, Schedule 1.32. The text of the Act as supplied includes the substituted and amended form of s 4; the annotation records that s 4 has a later amendment recorded in the Act’s published text.

Schedule 2 repeal notation: The end of the supplied schedule material contains a notation for Schedule 2: “Schedule 2 (Repealed)” and an amendment note: “sch 2: Am 1987 No 15, sec 30C. Rep 2012 No 42, Sch 5.” This indicates Schedule 2 was repealed by an instrument recorded as 2012 No 42, Schedule 5. The Act’s s 2(2) had provided for Schedule 2 to commence on 31 December 2011; the repeal annotation shows that Schedule 2 did not remain on the statute book in its original form as of the repeal reference.

Regulation-making subject to savings and transitional provisions: Schedule 1 contains a provision at cl 1 authorising regulations to contain savings or transitional provisions consequent on the enactment of this Act, and allows such provisions to take effect from the date of assent or later if the regulations so provide (Sch 1 cl 1(1)-(2)). Clause 1(3) sets limits on any such retrospective operation. While not an amendment per se, this provision anticipates further legislative detail in regulations that may be introduced after commencement.

Transitional provisions included at enactment: Part 2 of Schedule 1 contains transitional declarations that were operative on enactment, including the declaration that Monday 3 January 2011 is a public holiday for the whole State in addition to 1 January 2011 (Sch 1 Pt 2 cl 2) and special arrangements for Anzac Day and Easter Monday in 2011 (Sch 1 Pt 2 cl 3). These are transitional instruments included in the Act at enactment and recorded as savings or transitional provisions.

Repeal and saving in relation to previous statute: Section 11 repeals the Banks and Bank Holidays Act 1912 and Schedule 1 Pt 2 cl 4 saves local public holidays declared under the former Act by treating them as declared under s 5 of the current Act. This is a transitional saving recorded in the Act text.

Review timetable for potential future amendment: Section 12 requires the Minister to review the Act as soon as possible after the period of five years from assent and to table a report within 12 months after the end of that five-year period (s 12(1)-(3)). The review obligation is a statutory mechanism that commonly prompts consideration of amendments, but the Act itself does not specify remedial amendment outcomes.

The Act’s textual annotations therefore provide a limited internal amendment history: s 4 was substituted and later amended (2010 substitution and a 2022 amendment entry), Schedule 2 was repealed (2012 repeal entry), and the Act contains specified transitional measures implemented at enactment. The provided text does not list further amendment instruments, legislative debates, or amendment reasons beyond these internal notes.

The supplied statutory text does not record any judicial decisions, reported litigation, or case law interpreting provisions of this Act. No cases or judicial authorities are cited within the Act’s text, schedules or annotations provided.

What the Act does indicate about litigation pathways is, however, relevant to where litigation is likely to arise and the forum in which disputes will be adjudicated. Section 7(2) expressly deems the Fair Work Act provisions imported by s 7(1) to be industrial instruments for the purposes of Parts 1 and 2 of Chapter 7 of the Industrial Relations Act 1996. Those Parts of the Industrial Relations Act concern breaches of industrial instruments and recovery of remuneration and other amounts. Consequently, disputes arising from the public-holiday entitlements that the Act imports from the Fair Work Act are intended to be litigated or resolved within the State’s industrial relations enforcement framework.

Because the Act imports Commonwealth Fair Work provisions into State law and characterises them as industrial instruments for the Industrial Relations Act’s breach and recovery provisions, practical litigation or adjudication of disputes about employee entitlements on public holidays will involve applications and proceedings under the Industrial Relations Act or equivalent industrial tribunals and authorities empowered under that Act. The Act itself does not create a new tribunal or a new enforcement mechanism; it uses the Industrial Relations Act’s existing enforcement architecture.

The Act’s publication requirements for Ministerial orders under ss 5, 6 and 8 may give rise to administrative-law challenges if the Minister or a delegate fails to comply with statutory requirements. The Act requires orders to be published on the NSW legislation website at least seven days before the public holiday (s 5(1), (3); s 6(3)) and requires local event day orders to be published at least seven days before the event (s 8(3)). Challenges to the validity of a ministerial order might potentially be grounded in procedural non-compliance with those statutory publication conditions, but the Act itself does not elaborate consequences for breach of those procedural provisions; any legal remedy would require judicial or administrative review considerations external to the Act’s text.

Because the statutory text contains no reported judgments and does not provide a litigation history, practitioners seeking precedents must look to case law that addresses the Fair Work Act provisions when applied as State law, decisions under the State Industrial Relations Act concerning breaches of industrial instruments, and any administrative-law decisions concerning the validity of executive orders and publication requirements. Those materials are not contained in the Act text supplied.

In short, the Act contains no litigation history within the supplied text. The Act indicates the likely legal fora for disputes , industrial relations machinery and administrative-law proceedings , by virtue of its deeming and publication provisions (s 7(2); s 5(1), (3); s 6(3); s 8(3)).

The statutory text contains several operational features and procedural requirements that create potential traps for practitioners, employers, councils and administrators if they are overlooked. The following points are grounded in the Act’s provisions and identify where commonly encountered implementation mistakes could arise.

Publication lead time requirements and timing pitfalls: Orders under s 5 (additional public holidays) and s 6 (substitution) and s 8 (local event days) must be published on the NSW legislation website at least seven days before the public holiday or local event day (s 5(1), (3); s 6(3); s 8(3)). Failure to ensure publication at least seven days in advance could raise questions about whether an order has taken effect, but the Act does not state the precise legal consequence of late publication. Practitioners should therefore treat the seven-day requirement as mandatory for operational certainty. Employers and payroll administrators must not assume a public-holiday order is valid until the statutory publication has occurred.

Distinction between local event day and public holiday: A local event day is explicitly not a public holiday (s 8(4)). Councils and local businesses may assume that a local event day carries the same legal consequences as a public holiday for rostering and pay entitlements, but the Act establishes a legal distinction. If a council wishes a day to have public-holiday status under the Act, the mechanism is an order under s 5, not a local event day. Misclassification can therefore lead to incorrect payroll decisions and potential disputes.

Substitution timing rule complexity: Substitution orders must be published at least seven days before the earlier of the original day and the substituted day (s 6(3)). This creates an unusual timing trigger: the publication requirement is tied to the earlier of two dates rather than simply to the substituted day. Administrative workflows must account for that timing.

Automatic substitution rules for certain standard holidays: Section 4 contains built-in substitution and additional-holiday rules that operate automatically by statute. For example, when 26 January (Australia Day) falls on a Saturday or Sunday there is to be no public holiday on that day and instead the following Monday is a public holiday (s 4(b)). By contrast, when 1 January falls on a Saturday or Sunday there is an additional public holiday on the following Monday (s 4(a)). The differences in wording create materially different outcomes, and practitioners must apply the specific statutory rule for each holiday date rather than relying on a single weekend-to-weekday transfer rule.

Importation of Fair Work provisions and limits on interpretation: Section 7 applies ss 114 and 116 of the Fair Work Act 2009 as laws of New South Wales. The Act does not restate the content of those sections. Practitioners must therefore consult the Fair Work Act text to determine the substance of entitlements and cannot assume the Public Holidays Act itself contains those entitlements. Additionally, s 7(2) deems the applied provisions to be industrial instruments for purposes of Parts 1 and 2 of Chapter 7 of the Industrial Relations Act, which shapes the remedies and enforcement process.

Delegation cannot be subdelegated by a delegate: The Minister may delegate functions other than the power of delegation itself to the Director-General or holders of prescribed positions in the Director-General’s Department (s 9). That limit means delegates cannot further delegate the delegation power. Practitioners should obtain documentation of proper delegation chains when dealing with ministerial orders or departmental actions.

Regulations may contain savings or transitional provisions but are limited in retrospective effect: Schedule 1 authorises regulations to make savings or transitional provisions consequential on enactment and allows those provisions, if the regulations so provide, to take effect from the date of assent or a later date (Sch 1 cl 1(1)-(2)). However, Schedule 1 also prevents regulations that take effect earlier than publication from operating so as to prejudice persons other than the State or an authority of the State (Sch 1 cl 1(3)). Administrators should be alert to the scope and limits of any regulations that purport to have retrospective effect.

No express statutory penalties in the Act: The Act does not specify criminal offences or civil penalty provisions within its text for non-compliance. Enforcement for entitlements is routed to the Industrial Relations Act via the deeming provision in s 7(2). Parties looking for immediate statutory penalty provisions in this Act will not find them; enforcement will usually be via industrial remedies or any regulations that may be made under s 10.

Repeal of prior statute with saving: The Banks and Bank Holidays Act 1912 is repealed by s 11, but Schedule 1 saves local public holidays declared under the former Act by taking them to have been declared under s 5 (Schedule 1 Pt 2 cl 4). Failure to inspect the saving provision could lead to confusion about whether a local public holiday that had been appointed under the former Act survives.

Review timetable can prompt change: Section 12 requires a review as soon as possible after five years from assent and a report to be tabled within 12 months thereafter (s 12(1)-(3)). The statutory review timetable can be a prompt for policy or technical amendments; those relying on the statutory arrangements should monitor any reviews or reports for potential changes.

Publication platform dependence: The statutory requirement to publish on the NSW legislation website means affected parties must monitor that official publication platform for orders and cancellations. Reliance on secondary sources, local announcements or media may be insufficient if the official publication has not occurred in accordance with the statutory timings set out in ss 5, 6 and 8.

Careful attention to those statutory procedural details will reduce the risk of incorrect payroll treatment, improper rostering, or missed rights or obligations associated with public holidays and local event days.

Compliance under the Act requires operational steps for employers, payroll and HR teams, local councils that wish to seek local event days, and departmental actors who may exercise delegated functions. The following practical checklist is grounded in the statutory text and points to specific statutory obligations and recommended administrative practices.

1. Know the standard holidays and automatic substitution rules (s 4)

• Ensure payroll and rostering calendars incorporate the standard public holidays listed in s 4(a)-(k): New Year’s Day (1 January), Australia Day (26 January), Good Friday, Easter Saturday, Easter Sunday, Easter Monday, Anzac Day (25 April), King’s Birthday (second Monday in June), Labour Day (first Monday in October), Christmas Day (25 December) and Boxing Day (26 December).
• Apply the explicit weekend substitution and additional holiday rules in s 4. For example, when 1 January falls on a Saturday or Sunday, schedule an additional public holiday on the following Monday (s 4(a)); when 26 January falls on a Saturday or Sunday the public holiday is on the following Monday rather than the weekend (s 4(b)); Christmas Day and Boxing Day have specified additional holiday rules depending on whether they fall on Saturday or Sunday (s 4(j)-(k)).
• Do not assume a uniform rule for weekend occurrences; consult each subsection of s 4 for the correct outcome.

2. Monitor the NSW legislation website for Ministerial orders (s 5, s 6, s 8)

• The Minister must publish orders declaring or cancelling additional public holidays (s 5(1)-(3)), orders substituting public holidays (s 6(1)-(3)), and orders declaring local event days (s 8(3)) on the NSW legislation website at least 7 days before the relevant day. Treat the NSW legislation website as the definitive source.
• Implement internal procedures to check the NSW legislation website at regular intervals, particularly before major event periods and public holiday seasons, to capture any additional, cancelled or substituted public holidays in good time.

3. Apply Fair Work Act entitlements as State law (s 7)

• Recognise that s 114 and s 116 of the Fair Work Act 2009 are applied as State law by s 7(1). To determine the substantive entitlements (for example, who is entitled to be absent and payment obligations) consult those Fair Work Act provisions and ensure payroll and HR processes align with their requirements.
• Understand that s 7(2) deems those applied provisions to be industrial instruments for the purposes of Parts 1 and 2 of Chapter 7 of the Industrial Relations Act 1996, which means remedies for breaches will be pursued through the Industrial Relations Act machinery. Maintain documentation of pay and absence decisions to respond to any industrial claims.

4. If you are a council seeking a local event day (s 8)

• Submit a formal request to the Minister, because only the Minister may declare a local event day at the request of the council (s 8(1)).
• Provide evidence supporting the Minister’s statutory satisfaction requirement that the day is, and will be observed as, of special significance to the community in the area concerned (s 8(2)). Be prepared to substantiate how the community observes the day.
• Note that a local event day is not a public holiday (s 8(4)). Do not assume a local event day confers public-holiday statutory entitlements without a separate s 5 order.

5. Be aware of delegation and contact points (s 9)

• The Minister may delegate functions (other than the power of delegation itself) to the Director-General or holders of prescribed positions in the Director-General’s Department (s 9). When dealing with departmental actions or orders, request evidence of the delegation instrument to ensure the exercise of the function was validly delegated.

6. Check for regulations and transitional measures (s 10; Sch 1)

• The Governor may make regulations not inconsistent with the Act (s 10). Monitor the regulations for any procedural or substantive rules that supplement the Act and for any transitional provisions authorised in Schedule 1 that could affect rights or obligations (Sch 1 cl 1).
• If regulations are introduced with retrospective effect, confirm they comply with the Schedule 1 limitation that they not operate so as to prejudice persons other than the State or an authority of the State (Sch 1 cl 1(3)).

7. Documentation and record keeping

• Keep records showing the dates of any public holidays observed, the basis for treating those dates as public holidays (statutory s 4 list, NSW legislation website order reference, or substitution order), payroll calculations for public-holiday payments, and any communications to employees about holiday status and pay entitlements.
• Retain evidence of checks of the NSW legislation website and internal approvals for pay adjustments tied to substituted or additional public holidays.

8. Prepare for potential dispute resolution

• Because s 7(2) deems the applied Fair Work provisions to be industrial instruments for specified purposes, anticipate that disputes about entitlements and unpaid amounts will be pursued under the Industrial Relations Act’s breach and recovery provisions. Maintain clear payroll, rostering and contractual records to support compliance positions.

9. Plan ahead for review-driven changes (s 12)

• The Minister must review the Act five years after assent and table a report within 12 months thereafter (s 12(1)-(3)). Be prepared to adapt to any amendments that may flow from that review.

10. Practical HR checklist around substitution and cancellation

• When notified of a substituted day under s 6, confirm whether publication complied with the seven-day requirement tied to the earlier of the original and substituted days (s 6(3)), and update rosters and pay calculations accordingly.
• When an additional public holiday is cancelled under s 5(3), ensure cancellation was published at least seven days before the day and communicate promptly to affected staff to avoid inadvertent payment or rostering errors.

Following these steps and grounding procedures in the specific statutory language will reduce operational risk. For legal certainty on contested points (for example procedural consequences of non-compliance with the publication timing), seek advice and, if necessary, consider administrative review options or industrial dispute resolution under the Industrial Relations Act as provided by s 7(2).