Q. We have an employee who works on continuous shift work and was rostered to work a shift on Easter Saturday. The employee called in ill and has subsequently produced a medical certificate as evidence of their illness. The employee however has exhausted all of their accrued balance of paid personal/carer’s leave. As the employee has no balance of personal leave does the employee forfeit payment for the public holiday? 

 

A. As Easter Saturday was a day on which the employee was required to work ordinary hours there is an entitlement to payment for the shift as a public holiday. This would still be the case even if the employee had an entitlement to paid personal/carer’s leave. Under the Fair Work Act (s. 98), if the period during which an employee takes paid personal/carer's leave includes a day or part-day that is a public holiday in the place where the employee is based for work purposes, the employee is taken not to be on paid personal/carer's leave on that public holiday. This means the day is a paid public holiday regardless of any entitlement to paid personal/carer’s leave. 

 

Payment for holidays not worked 

Under the Fair Work Act (s.116), an employee is to be 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 the employee will be paid at their ordinary rate of pay excluding the appropriate public holiday penalty payment (had the employee worked) provided by the applicable modern award or enterprise agreement.  

 

Annual leave 

A similar situation occurs when a public holiday falls during a period of annual leave. Under the Fair Work Act (s.89), if during a period of annual leave a public holiday or part-holiday falls, or a period where the employee is eligible for personal/carer’s leave (including compassionate leave), or a period of community service leave, the employee is taken not to be on annual leave for each day eligible for the other leave or public holiday. The period of annual leave is not extended by any such absence but the employee is to be re-credited annual leave for each day of eligible absence. 

 

Long service leave 

Whether a public holiday which falls during a period of long service leave extends the period of the leave depends on the relevant Commonwealth, state or territory long service leave legislation. For example, the Long Service Leave Act 2018 [Vic] (s.7) provides that a period of long service leave is exclusive of annual leave and public holidays so the period of leave is extended by one day for each public holiday that falls during long service leave. 

 

Bottom line 

In this circumstance, the employee is entitled to payment for any holiday that falls on a day the employee is normally required to work.