In this example, a company is preparing for the Queen’s Birthday public holiday. They are a national company with offices in all locations. All states and territories will have this public holiday apart from Western Australia and Queensland. 

If an employee is off sick for five days, including the public holiday, should the leave be paid as personal/carer’s leave or as a public holiday (with no deduction from their personal/carer’s leave accrual)?

Under the National Employment Standard (s98), if the period during which an employee takes paid personal/carer’s leave includes a day or part-day that is a public holiday, the employee is taken to be on the public holiday and not on a period of paid annual leave or paid personal/carer’s leave. In this case, the pay office should regard the day as the payment for a public holiday not worked, not an absence on paid personal/carer’s leave. In this case, a week’s absence comprises days’ paid personal/carer’s leave and days’ public holiday. 

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. The base rate of pay is the employee’s ordinary pay rate, 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 pay rate, 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 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. Any such absence does not extend the period of annual leave, but the employee is to be re-credited annual leave for each day of eligible absence.

Long service leave

Whether a public holiday that falls during a period of long service leave extends the leave period 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 leave period is extended by one day for each public holiday that falls during long service leave.

The bottom line: An employee’s absence on paid personal/carer’s leave that falls on a public holiday is regarded as a public holiday and not a day of paid personal/carer’s leave.

Siobhann Provost

Senior Writer, My Business

Siobhann has over 18 years human resources business partnering experience in large organisations. She more recently established and led a people advice team of senior workplace advisors before moving into content writing.