With Easter around the corner and some employers standing down employees in the midst of the COVID-19 pandemic, we have received questions about how public holidays interact with a period of stand down. This note concerns national system employees under the Fair Work Act 2009 (“FW Act”)
Under section 114(1) of the FW Act, an employee is entitled to be absent from his or her employment on a day that is a public holiday, and to be paid for ordinary hours they would otherwise have worked. However, under section 114(2), an employer may request an employee to work on a public holiday if reasonable, and the employee can only refuse if their refusal is reasonable
But when there is a public holiday that falls within a period that the employee is stood down, the right to payment for that day will depend on whether (if there had been no stand down and the public holiday fell on a day the employee would normally work) that employee:
Would normally have not been expected to work on that public holiday (ie would have the day off); or
Would normally have been expected to work on that public holiday.
An Employee Who is Not Normally Required to Work ordinary hours on a Public Holiday
Under section 525 of the FW Act, an employee ‘is not stood down’ in certain circumstances, including where they are ‘authorised to be absent from their employment’.
It is likely that if an employee is entitled to be absent from work on a public holiday and their employer does not or would not ordinarily request them to work on that day, their absence from work on a public holiday is ‘authorised’. (For example - a full-time office worker whose normal days of work are Monday to Friday but who would normally not be required to attend work on a public holiday that falls on the Friday or the Monday).
In these circumstances, under section 525 of the FW Act, an employee will therefore not be ‘stood down’ on a day that is a public holiday.
Because the employee is not ‘stood down’, they would be entitled to be paid for the public holiday.
Casual employees, having no ‘ordinary hours of work’ due to the nature of their employment, will not be entitled to payment for not attending work on a public holiday.
An Employee Who Would Normally Work Ordinary Hours on a Public Holiday
If an employee ordinarily would be reasonably required to work on a public holiday as a part of their ordinary hours, the case is different. In these circumstances, the employee cannot be said to be ‘authorised to be absent from their employment’ on that day, because were it not for the stand down, they would still be required to work.
Therefore, the exemption in section 525 of the FW Act likely does not apply to employees whose ordinary hours of work include a public holiday - and who would ordinarily be reasonably required (or expected) to work on that public holiday. Therefore, such an employee would likely still be characterised as ‘stood down’ on that public holiday.
Because the employee is ‘stood down’, they would not be entitled to be paid for the public holiday.
Enterprise Agreements and Contracts of Employment
The general stand down provisions in section 524(2) of the FW Act do not apply where an enterprise agreement or contract of employment expressly provides for the circumstances in which an employee may be stood down. Therefore, we recommend that those employers seek specific advice about public holiday entitlements for an employee who is subject to stand down.
Untested by the Courts
The current scale of stand down in Australia is unique.There is very little case law directly on point. Employers may wish to seek legal advice about their specific situation.
Require further information/assistance?
If you require further information or specific advice about your situation, please contact one of our consultants.