Workplace Relations Australia: Public Holiday Entitlements Can Be Confusing.

Monday, January 9, 2012

Public Holiday Entitlements Can Be Confusing.

What do you have to pay a part-time employee on a public holiday?

To answer this question, ask if the employee would normally work on the day designated as a public holiday? If the answer is yes then you will have to pay them at the normal base rate of pay for the hours that they would normally have worked. If the employee does not normally work on that day then no payment is due. Note that the prorate calculation used to determine annual leave entitlements does not apply.

Can an employer ask an employee to work on a Public Holiday?

In asking your employee to work on a public holiday, the request (or refusal thereof) must be deemed to be reasonable. The National Employment Standard had determined a test to determine what is ‘reasonable’. This includes the nature of the work performed and the operational needs of the business, the employee’s personal and family situation, whether the employee is entitled to receive addition compensation by way of overtime, penalty rates etc and duration of the notice given. An employee has the right to refuse the work request if that refusal is reasonable in nature. Note that to penalise an employee who reasonably refuses to work on a public holiday can be viewed as discrimination.

What do I have to pay an employee who works on a public holiday?

Again this is a confusing area. The Fair Work Act and the National Employment Standard do not make any reference to penalty rates other then the determination in the ‘reasonability’ test. Accordingly, it is the modern award that determines the rate of pay for working on a public holiday. An award free employee would therefore be entitled to the rate of pay specified under their employment contract. Note that the employee is entitled to refuse to work on a public holiday if the pay rate (or other compensation) does not adequately compensate them for this work and the subsequent loss of entitlement.

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Did You Know?

The new Fair Work Legislation came into effect on the 1st July 2009 replacing Work Choices 1995 and the Workplace Relations Act 1996

Unfair Dismissal

As from 1 July 2009, employers who employ 15 employees or more will be now be subject to the unfair dismissal legislation. However businesses with less than 15 full time equivalent employees are exempt from unfair dismissal claims during the employee’s first 12 months of employment.

The unfair dismissal legislation only applies to an employee who earned less than $153,600 (to 30 June 2021), not including commissions and bonuses unless they are subject to a modern award or enterprise agreement.

Leave

Under the new legislation sick leave is now referred to as personal and Carer’s leave provision.

Under the New Fair Work Legislation, all employees who fall under the act are entitled to 10 days personal Carer's leave per annum

Employee's sick leave entitlement is cumulative and there is also no upper limit. All unused leave is cumulated year on year indefinitely.

While on unpaid parental leave, an employee does not accumulate annual leave and personal/carer's leave (which includes sick leave). However, a period of unpaid parental leave does not break an employee's continuity of service for the purposes of long service leave?

You may refuse a request for annual leave if refusal is reasonable and necessary because of your business' operational requirements. Accordingly you may reject the employee's annual leave application. If you decide to do this however, you should explain these grounds clearly to the employee and discuss other times that may be more suitable.

Fair Work Inspector

A Fair Work Inspector has the right to inspect your workplace as part of an audit campaign or in response to a complaint.

On showing suitable identification, Fair Work Inspectors may undertake inspections without warning if they believe work governed by national workplace relations laws is/has been done there.

During an inspection, a Fair Work Inspector can

i) inspect any work, process or object

ii) interview any person,

iii) require a person to tell them who has custody of, or access to a record or document,

iv) require a person who has custody of, or access to a record or document to produce the record or document either while they are on the premises, or within a specific period,

v) inspect and make copies of any record or document that's kept on the premises or is accessible from a computer kept there, take samples of any goods or substances.