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Christmas is less than a month away, and some businesses are closing over the holiday period. Usually employees will be paid annual leave during this time as part of an annual close down, but what about those employees who don’t have enough leave accrued and will be on unpaid leave? How should they be paid for the public holidays that occur during this time?
Under the Fair Work Act 2009 (the Act), an employee (other than a casual employee) is entitled to be absent from work on a day that is a public holiday and to be paid their base rate of pay for the ordinary hours they would have worked if they had not been away.
An employee will not be paid for a public holiday if they don’t normally work on the day that the public holiday falls.
For example, a part-time employee who does not normally work on Wednesdays will not be paid for the Christmas Day or New Year’s Day public holidays this year as they both fall on a Wednesday.
Our answer here will confine itself to the operation of the Act. For tailored advice on obligations regarding payment for public holidays, please call the Ai Group Workplace Advice Line on 1300 55 66 77.
If a public holiday occurs while an employee is on leave, their entitlement to be paid for the day depends on whether they are taking paid leave or unpaid leave.
If a public holiday falls during a period of paid leave (such as annual leave or personal/carer’s leave) the employee must be paid for the public holiday if they would ordinarily have worked on that day. This includes any hours that fall on a part-day public holiday, which occurs in some states/territories.
The public holiday will not be counted as annual leave or personal/carer’s leave. This means that the public holiday hours will not be deducted from the employee’s amount of accrued leave.
Zoe is a full-time employee who usually works Monday to Friday. She has applied to take 10 days of annual leave over Christmas-New Year from Monday 23 December 2019 until Friday 3 January 2020. She will come back to work on Monday 6 January 2020.
There are 3 public holidays that occur in this period:
Zoe will be paid for these public holidays as she would normally be required to work on these days. The public holidays will not be deducted from her annual leave amount. This means only 7 days are deducted from Zoe’s annual leave balance.
Using the same example above, if Zoe was a part-time employee who applied for annual leave in the same period, and she didn’t normally have ordinary hours on Wednesday’s and Thursday’s as these are her regular days off, then she will not be paid the Christmas Day, Boxing Day or New Year’s Day public holidays. She will not be paid annual leave either for these days, because she has no ordinary hours. Six days of annual leave will be deducted from her annual leave entitlement.
Under the Act, an employee who is on a period of approved unpaid leave (where, specifically, days of unpaid leave fall on both sides of the public holiday) would not be regarded as having ordinary hours of work on the public holiday. In this way, the Act would not require an employer to pay an employee for absence on a public holiday in such circumstances.
An employee is entitled to paid personal/carer’s leave if the leave is taken because the employee is unfit for work because of personal illness or injury affecting them, or to provide care or support to a member of their immediate family or household who is affected by a personal illness/injury or an unexpected emergency.
The Act requires an employee gives their employer appropriate notice of the leave. The legislation also allows an employer to request evidence that would satisfy a reasonable person that the personal/carer’s leave is being taken for a prescribed reason.
It is recommended that employers provide clear guidance about expectations as far as notice and evidence requirements are concerned. This guidance will preferably be provided through a leave policy.
The policy should clearly set out the procedure for employees to follow when notifying their workplace of their absence. This should include:
A Sample Leave Policy developed by Ai Group is available here. Ai Group can assist with tailoring the policy to suit the requirements of the workplace.
An employee who is able to satisfy the requirements of paid personal/carer’s leave would be entitled to be paid for a public holiday that fell within that period of leave.
Our workplace advisers are standing by and ready to answer questions our members may have. For further advice or assistance on this topic, or any workplace relations matter, please call us on 1300 55 66 77, 8:30am – 5:30pm Monday to Friday.