The Christmas/New Year holiday period raises a number of questions for employers with regard to the entitlements of their employees and this year, as well as the usual questions, we need to factor in JobKeeper entitlements.
Employers can direct their employees to take annual leave or unpaid leave during a shutdown, only if their award or registered agreement allows it.
If the award or agreement is silent on leave for shutdown periods, an employer is unable to force the taking of annual leave or unpaid leave and if challenged, will be required to pay the employee their usual pay for that period.
Some awards also allow for employees who do not have enough annual leave accrued, to take annual leave prior to the accrual occurring – in agreement with the employer.
Most awards provide detail as to how much notice an employee must be provided to take leave for a shutdown period.
Whilst some awards already require it, it is recommended that written notice be provided to employees of any shutdown period and if there is a requirement for them to take accrued leave or unpaid leave.
It is important that you check your relevant award(s) or registered agreement to determine if you can direct leave to be taken for a shutdown period and if so, how much notice you are required to give.
Public Holidays – not working
An employee is to be paid for the day if a public holiday falls on a day they would usually work. The pay rate for this day is normally the minimum rate which doesn’t include any loadings, overtime or penalty rates.
It is important to note however that if a public holiday falls on an employee’s rostered day off, they may be entitled to extra entitlements. You will need to check your relevant award(s) or registered agreement to understand what these would be.
If an employee is on annual leave when a public holiday falls, they are entitled to be paid the public holiday without a deduction of their leave accrual.
Public Holidays – working
Employers can request employees to work on public holidays if the request is reasonable and based on:-
- The needs of the business
- The employee’s personal commitments, like family or caring arrangements
- How much notice the employee is given asking them to work
- What the employee’s contract says
Should an employee work on a public holiday, their relevant award or registered agreement will detail the entitlements for this work including penalty rates, an alternate day off, or extra annual leave.
JobKeeper Payments during Christmas and New Year
Employees in receipt of JobKeeper payments need to receive the higher of the following amounts each fortnight:-
- The amount of the applicable JobKeeper payment, or
- Their usual pay for work performed (including any paid leave or public holiday pay)
Employees who take annual leave during this period need to be paid the higher of the applicable JobKeeper payment or the amount they are entitled to whilst on leave.
Employees who are on unpaid leave during the holiday period (ie., because they don’t have enough annual leave accrued) will receive the JobKeeper payment amount whilst on the period of unpaid leave.
Directing Employees on JobKeeper to take leave
Under the JobKeeper scheme, JobKeeper Enabling Directions where an employee can be directed to take leave ceased to exist on 28 September 2020.
As such, an employer and employee can make an agreement for annual leave to be taken.
Direction by the employer for an employee to take leave may be detailed in the relevant award(s) or registered agreement for such reasons as excessive leave.
JobKeeper payments on public holidays during a JobKeeper Enabling Standdown
Employers still need to calculate public holiday pay when a public holiday falls on a day the employee would normally have worked had they not been on a JobKeeper enabling stand down direction.
For assistance with your employee’s entitlements during the Christmas and New Year period, contact our HR Advisors on 1300 720 004 or [email protected]
Information in HR Advice Online guides and blog posts is meant purely for educational discussion of human resources issues. It contains only general information about human resources matters and due to factors such as government legislation changes, may not be up-to-date at the time of reading. It is not legal advice and should not be treated as such.