Q. Our company employs a number of part-time employees who work as a team on various projects. The company will be closing down over the Christmas-New Year period and employees will be sent on annual leave. One employee has questioned the amount of annual leave that will be deducted from their annual leave balance. The employee works Monday, Tuesday and Thursday inclusive, while other team members work Wednesday – Friday inclusive. The question relates to the upcoming Christmas Day and New Year’s Day public holidays, both of which fall on a Wednesday. The employee is upset that some members of the team will receive two public holidays over the break whereas, he will receive only one public holiday (Additional Holiday on Thursday 26 December 2024). The employee is claiming this is unfair and should receive payment (or credit for the other two public holidays).  

Is this employee entitled to payment for the Christmas Day and New Year’s Day public holidays?  

A. In this case, the employee is not entitled to payment for either the Christmas Day or New Year’s Day public holiday. The employee, however, is entitled to a day off with pay for any additional holiday (declared a holiday by each state and territory government).  

Under the Fair Work Act (s.116), 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. The Explanatory Memorandum to the Fair Work Bill 2008 (para. #.461) states that an employee is not entitled to any payment for absence on a public holiday if the employee would not ordinarily have worked on that day.  Therefore, this employee would be entitled to a day off with pay where a public holiday falls on Monday, Tuesday or Thursday. 

‘Base rate of pay’ means 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. In this case, the part-time employee does not work ordinary hours on a Wednesday, consequently there is no payment for a public holiday that falls on a non-workday. 

You would also need to consider the Award or Enterprise Agreement the employee is engaged under as some Awards require that an employee is paid for a public holiday if it falls on a weekday.

 

Bottom line 

The National Employment Standards do not provide for eight paid public holidays per year (plus additional or substituted holidays declared by the relevant state or territory government) for every full-time or part-time employee – it provides specified public holidays with pay when that holiday falls on a day the employee is normally required to work.