Will an employee be entitled to payment on a public holiday when they are on a period of paid annual leave taken concurrently with unpaid parental leave?
The Fair Work Act 2009 (the FW Act) does not deal directly with this issue therefore various provisions of the legislation need to be considered.
It is Ai Group’s view that an employee taking paid annual leave and unpaid parental leave will not be entitled to payment for public holidays which fall during this period. An explanation of this answer follows.
Section 79 of the FW Act allows an employee to take paid annual leave whilst he or she is taking unpaid parental leave.
Further, s. 89 of the FW Act provides that an employee will not be seen to be on paid annual leave on a day which is a public holiday. In other words, an employee is on unpaid parental leave on that public holiday.
Absence from employment is due to the employee being on a period of unpaid parental leave. This means that the employee has no entitlement to be paid for the public holiday under s 116.
Normally an employee would be entitled to payment on public holiday for any ordinary hours during that period under s. 116. The legislative note in this section provides that if an employee did not have ordinary hours of work on the public holiday then there is no entitlement to payment.
In this case as the absence from employment is due to the employee being on a period of unpaid parental leave, and therefore have no ordinary hours, they have no entitlement to be paid for the public holiday under s. 116.
