FAQ’s

The National Employment Standards (NES) provide an entitlement for employees to be absent from work on a day or part-day that is a public holiday.

The NES protect an employee’s workplace right to reasonably refuse to work on a public holiday, and will guarantee payment where an employee is absent from work because of a public holiday.

Employees are protected from adverse action for having, using, or seeking to use their workplace right to reasonably refuse to work on a public holiday.

Can a public holiday be substituted for another day?

If, under the law of a State or Territory, a day or part-day is substituted for any public holiday or part-day, then the substituted day or part-day is the public holiday.

An award or agreement may include provisions for an employer and employee to agree to substitute the public holiday or part-day for another day or part-day. Furthermore, an employer and an award/agreement-free employee may agree to substitute the public holiday or part‑days for another day or part-day.

An employer must not exert undue influence or pressure on an employee in relation to agreeing to substitute a public holiday for another day or part-day.

What are reasonable grounds for requesting or refusing to work on a public holiday?

In determining whether a request (or a refusal of such a request) to work on a public holiday is reasonable, the following must be taken into account:

• the nature of the employer’s workplace (including its operational requirements) and the nature of the work performed by the employee
• the employee’s personal circumstances, including family responsibilities
• whether the employee could reasonably expect that the employer might request work on the public holiday
• whether the employee is entitled to receive overtime payments, penalty rates, additional remuneration or other compensation that reflects an expectation of work on the public holiday
• the type of employment (e.g. full-time, part-time, casual or shiftwork)
• the amount of notice in advance of the public holiday given by the employer when making the request
• the amount of notice in advance of the public holiday given by the employee in refusing the request

 

What payment is required for an absence from work due to a public holiday?

If an employee is absent from work on a day or part‑day that is a public holiday, the employer must pay the employee (other than a casual employee) the base rate of pay for the employee’s ordinary hours of work on that day or part-day. The base rate of pay to be paid excludes incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates, or any other separately identifiable amounts.

However, an employee is not entitled to payment if they do not have ordinary hours of work on the public holiday.

For example, a part-time employee is not entitled to payment if their part-time hours do not include the day of the week on which the public holiday falls.

Illustrative example

Stephanie is a full-time employee who usually works overtime in addition to her ordinary hours of work on Tuesdays. She receives penalty rates for these overtime hours under the applicable modern award. Stephanie is absent on the public holiday on Tuesday, 26 January 2010, and is entitled to her base rate of pay for her ordinary hours. She is not entitled to payment for the overtime hours she would have usually worked had it not been a public holiday.

Stephanie’s colleague, John is a part-time employee who is rostered to work Wednesday to Friday each week. As John’s ordinary hours of work do not include Tuesdays, he is not entitled to payment for the public holiday on 26 January 2010.

If you have any questions regarding this or any other HR issue please contact us.

Pay during stand down & severe weather

Stand down

An employer can send employees home if there is no useful work for them to do because of:

• equipment break down
• natural disaster (including floods, bushfires, tropical cyclones)
• industrial action.

This is known as a stand down. This can only happen if the reason for the stand down was out of the employer’s control.

Employees can’t be stood down just because there is not enough work.

Pay during stand down

An employee is not paid during a stand down period.

Best practice tip

An employee is not paid during a stand down period. However, an employer can be flexible and consider other options that will allow an employee to be paid.

The employer can consider letting employees:

• take a period of paid leave, such as annual leave
• work at another location such as from home or another work site.

Shut down

Shut down is when a business temporarily closes during slow periods of the year, such as Christmas and New Year.

Pay during shut down

Employees can be directed to take annual leave during a shut down and are paid annual leave entitlements.

Head to Fair Work Australia’s  Direction to take annual leave during a shut down page for more information.

Inclement or severe weather

Inclement weather is when it is unsafe or unreasonable for an employee to work because of severe weather conditions.

Awards, enterprise agreements and other registered agreements can set out:

• what inclement weather includes
• what employees and employers have to do when there is inclement weather.

Deducting pay & overpayments

Taking money out of an employee’s pay

Taking money out of an employee’s pay is called a deduction.

An employer can only deduct money if:

• the employee agrees in writing and it’s principally for their benefit
• it’s allowed by a law, a court order, or by the Fair Work Commission, or
• it’s allowed under the employee’s award or registered agreement.

Examples include salary sacrifice arrangements or payments into an employee’s health fund.

Deductions have to be shown on the employee’s pay slip and time and wages records.

Deductions that aren’t allowed

An employer can’t deduct money if:

• it benefits the employer directly or indirectly and is unreasonable in the circumstances, or
• the employee is under 18 years of age and their parent or guardian hasn’t agreed in writing.

Example: Deducting money for till shortages

Jenny works as a bar attendant in a tavern and is covered by the Hospitality Industry (General) Award 2010.

At the end of her shift her manager, Robert, counts the money for the day. He notices that the till is $20 short. Robert usually takes money out of the bar attendant’s wages to make up for the shortfall.

Even though the till is $20 short, Robert can’t deduct this money from Jenny’s wages. This is because the award does not allow it, the deduction would not benefit Jenny and it would be unreasonable in the circumstances.

This cost will need to be met by Robert as the employer.

Overpayments

Overpayments can happen when an employer mistakenly believes an employee is entitled to the pay or because of a payroll error.

Employers can’t take money out of an employee’s pay to fix up a mistake or overpayment. Instead, the employer and employee should discuss and agree on a repayment arrangement. If the employee agrees to repay the money, a written agreement has to be made and has to set out:

• the reason for the overpayment
• the amount of money overpaid
• the way repayments will be made (eg. cash, cheque or electronic transfer) and how often (this has to be reasonable).

If the repayment can’t be agreed an employer should get legal advice.

A deduction can be made to get back an overpayment if it’s allowed under a registered agreement, award, legislation or court order.

Example: How to pay back an overpayment

Tony was overpaid $2000 over 3 years because of a payroll error. His award does not allow a deduction to be made when an employee is overpaid.

Tony and his employer, Alice, meet to discuss the overpayment. Tony agrees to repay the money and they come up with a solution.

Alice says Tony can choose how the money is paid back and the amount and frequency of the payments. Tony tells Alice that he’d prefer if $20 was deducted from his pay each week until the $2000 is repaid. This arrangement is put in writing and both sign.

This repayment is reasonable because Tony had a choice about how the money was paid back, and the amount and frequency of each payment.

Best practice tips

• Check your award or agreement to find out when deductions can be made.
• Employers and employees should talk to each other if an overpayment has been made, then come to an agreement about repayment and put this in writing.

All employees (including casual employees) are entitled to compassionate leave (also known as bereavement leave) but what is compassionate leave and who is entitled to it?

Compassionate leave can be taken when a member of an employee’s immediate family or household:

• dies or
• suffers a life-threatening illness or injury.

Immediate family is an employee’s:

• spouse
• de facto partner
• child
• parent
• grandparent
• grandchild
• sibling, or a
• child, parent, grandparent, grandchild or sibling of the employee’s spouse or de facto partner.

Employees will be able to take compassionate leave for other relatives (eg. cousins, aunts and uncles) if they are a member of the employee’s household, or if the employer agrees to this.

Amount of compassionate leave

All employees are entitled to 2 days compassionate leave each time an immediate family or household member dies or suffers a life threatening illness or injury.

The compassionate leave can be taken as:

• a single continuous 2 day period, or
• 2 separate periods of 1 day each, or
• any separate periods the employee and the employer agree.

An employee does not accumulate compassionate leave. It can be taken any time an employee needs it.

If an employee is already on another type of leave (eg. annual leave) and needs to take compassionate leave, the employee can use compassionate leave instead of the other leave.

Payment for compassionate leave

Full-time and part-time employees receive paid compassionate leave and casual employees receive unpaid compassionate leave.

Full-time and part-time employees are paid at their base pay rate for the ordinary hours they would have worked during the leave.

This doesn’t include separate entitlements such as incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates.

Compassionate leave can’t be cashed out.

Notice and evidence

An employee taking compassionate leave must give their employer notice as soon as they can (this may be after the leave has started). The employee must tell the employer of the period, or expected period, of the leave.

An employer can request evidence about the reason for compassionate leave (eg. a death or funeral notice or statutory declaration). This request for evidence has to be reasonable. If the employee doesn’t provide the requested notice or evidence they may not get compassionate leave.

Employees, including casual employees, can take community service leave for certain activities such as:

• voluntary emergency management activities
• jury duty (including attendance for jury selection).

With the exception of jury duty, community service leave is unpaid. To find out more visit Jury duty.

Voluntary emergency management activity

An employee engages in a voluntary emergency management activity if:

• the activity involves dealing with an emergency or natural disaster
• the employee engages in the activity on a voluntary basis
• the employee was either requested to engage in an activity, or it would be reasonable to expect that such a request would have been made if circumstances had permitted
• the employee is a member of, or has a member-like association with a recognised emergency management body.

Recognised emergency management body

A recognised emergency management body is:

• a body that has a role or function under a plan that is for coping with emergencies / natural disasters (prepared by the Commonwealth or a state or territory)
• a fire-fighting, civil defence or rescue body
• any other body which is mainly involved in responding to an emergency or natural disaster.

This includes bodies such as:

• the State Emergency Service (SES)
• Country Fire Authority (CFA)
• the RSPCA (in respect of animal rescue during emergencies or natural disasters).

How much leave is an employee entitled to?

An employee is entitled to take community service leave while they are engaged in the activity and for reasonable travel and rest time. There is no limit on the amount of community service leave an employee can take.

Are there notice and evidence requirements?

An employee who takes community service leave must give their employer:

• notice of the absence as soon as possible (this may be after the leave starts)
• the period or expected period of absence.

An employer may request an employee who has given notice, to provide evidence that they’re entitled to community service leave.

Employees, including casual employees, can take community service leave for certain activities such as:

• voluntary emergency management activities
• jury duty (including attendance for jury selection).

With the exception of jury duty, community service leave is unpaid. To find out more visit Jury duty.

Voluntary emergency management activity

An employee engages in a voluntary emergency management activity if:

• the activity involves dealing with an emergency or natural disaster
• the employee engages in the activity on a voluntary basis
• the employee was either requested to engage in an activity, or it would be reasonable to expect that such a request would have been made if circumstances had permitted
• the employee is a member of, or has a member-like association with a recognised emergency management body.

Recognised emergency management body

A recognised emergency management body is:

• a body that has a role or function under a plan that is for coping with emergencies / natural disasters (prepared by the Commonwealth or a state or territory)
• a fire-fighting, civil defence or rescue body
• any other body which is mainly involved in responding to an emergency or natural disaster.

This includes bodies such as:

• the State Emergency Service (SES)
• Country Fire Authority (CFA)
• the RSPCA (in respect of animal rescue during emergencies or natural disasters).

How much leave is an employee entitled to?

An employee is entitled to take community service leave while they are engaged in the activity and for reasonable travel and rest time. There is no limit on the amount of community service leave an employee can take.

Are there notice and evidence requirements?

An employee who takes community service leave must give their employer:

• notice of the absence as soon as possible (this may be after the leave starts)
• the period or expected period of absence.

An employer may request an employee who has given notice, to provide evidence that they’re entitled to community service leave.