Should an employee on parental leave be paid for public holidays?
March 10, 2011
The National Employment Standards (NES) under the Fair Work Act 2009 provide a clear entitlement for payment for public holidays for permanent employees. However, there has been confusion around the interaction of this entitlement with parental leave under the new laws.
The NES provision provides for an employee (other than a casual) to be paid their base rate of pay for their ordinary hours of work on a public holiday. This means that a full-time employee working Monday to Friday receives payment for public holidays on weekdays but not weekends. A part-time employee will receive payment for only those days when they would ordinarily work and only for those hours they would normally work on that day. What the NES provisions do not make clear is what happens if that full-time or part-time employee who would have worked hours on the day the public holiday falls, is at that time on unpaid parental leave.
The Explanatory Memorandum (EM) to the Fair Work Bill 2009 clarifies the intended application of these provisions. The EM provides the following illustrative example in relation to a public holiday on Tuesday 26 January 2010:
“…Holger is on unpaid parental leave for the first half of 2010. Holger would not be entitled to payment for the public holiday on 26 January 2010”
The reasoning provided is that “An employee is not entitled to any payment for absence on a public holiday if they would not ordinarily have worked on that day.”
Any employee on parental leave or, indeed, on authorised leave without pay would not have ordinarily worked on the public holiday due to this leave and as such would not be entitled to payment under the NES.
Clients should also check their particular contracts of employment and industrial instruments when determining their employee’s entitlements in relation to public holidays.
If you have any queries regarding this issue, please do not hesitate to contact Joshua Shingles.
