30/11/2011

The following are general comments on employee entitlements under the National Employment Standards of the Fair Work Act 2009.  However, every employer and employee should review their specific employment agreement or award to determine their individual rights and obligations.

The relevant National Employment Standards include the following:

Section 89 – provides that an employee who is on paid annual leave which includes a public holiday is not on paid annual leave for the public holiday day.  The employee is paid separately for that day (see section 116 below).

Section 115 – provides that the "public holidays" include Christmas Day, Boxing Day and New Year’s Day and any other day declared or prescribed by or under a law of a State or Territory to be observed generally as a public holiday.  It also includes any day that is "substituted" for a declared public holiday.  Accordingly, any day declared as a public holiday in substitution for Christmas Day and Boxing Day will be a "public holiday" and the other provisions will apply.

Section 116 – provides that an employee must be paid for a public holiday if they are absent and would otherwise have been rostered to work that day.  A part-time employee who does not normally work that day is not entitled to be paid.

Section 94(5) – provides that an employer may require an award/agreement free employee to take a period of paid annual leave, but only if the requirement is reasonable, this includes where the employer’s business is shut down between Christmas and New Year.  We always suggest that such a request should be incorporated into the employee’s terms.

Section 114 – provides that an employer may request an employee work on a public holiday if the request is reasonable.  In determining whether a request is reasonable, the factors include:

• the nature of the employer’s enterprise;
  
• the employee’s family responsibilities;
• whether the employee is entitled to overtime, penalty rates or other compensation;
• whether the employee is full-time, part-time or casual; and
• the amount of notice given.

If you have any questions in relation to your employees' entitlements to annual leave or public holidays, please contact TOWNSENDS BUSINESS & CORPORATE LAWYERS on (02) 8296 6222.