Q. Our company was closed over the Easter holiday period but the incidence of absenteeism on the working day before Good Friday increased. The majority of employees who were absent did not produce any evidence substantiating the reason for their absence. Similar absenteeism occurred earlier this year after the Australia Day public holiday. While any employee who failed to produce reasonable evidence justifying their absence was not paid for the Thursday, the company is considering applying some form of deterrence, such as forfeiture of payment for (say) the Good Friday public holiday.

Under the Fair Work Act, can the employee forfeit payment for a public holiday in this circumstance? The employees are covered under the Food, Beverage and Tobacco Manufacturing Award 2020.

 

A. The employee would not be entitled to payment for the Thursday before Good Friday if the employee is ineligible for paid personal/carer’s leave. The employee however would receive payment for the Good Friday public holiday if it falls on a day the employee normally works.

Under the Fair Work Act (s.115), Good Friday is listed as a public holiday for the purposes of the National Employment Standards and is also a declared public holiday under the relevant state and territory public holidays legislation.

The Fair Work Act states an employee is paid at their ‘base rate of pay’ for their ordinary hours of work on that day when absent from work on a specified public holiday. Base rate of pay is the employee’s ordinary rate of pay excluding incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates or any other separately identifiable amounts. This means an employee is entitled to payment for an absence on a public holiday if the employee would ordinarily have worked that day.

The Food, Beverage and Tobacco Manufacturing Award 2020 does not contain terms which permit the employer deducting payment for the public holiday in any circumstance. In any case, such a term in a modern award or an enterprise agreement would be invalid as it is inconsistent with the minimum provisions of the National Employment Standards.

Prior to the Fair Work Act, it was common for many federal and state awards to contain terms which provided forfeiture of payment for a public holiday if the employee was absent the day before or day after a public holiday without reasonable excuse or without the consent of the employer. The introduction of the Fair Work Act removed the right of an employer to deduct payment for a public holiday in this circumstance and the term was not included in modern awards under the Award Modernisation decisions of the (then) Australian Industrial Relations Commission.

 

Bottom line

While unauthorised absence before or after a public holiday may be grounds for taking disciplinary action, the employee would still be entitled to payment for a public holiday that falls on a day the employee normally works.