Employer Using My Annual Leave Hours for Public Holidays off

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  [Deactivated] on 04/11/2015 - 01:31

  +8

  Question: Are you a Casual employee?

  If yes, then you do not get Annual Leave, and you will only be paid for Public Holidays if and when you work on those days.

  Chances are you're a Permanent employee, and in line with Fair Work Australia, you cannot 'take' Annual Leave on a Public Holiday.

  Your manager is correct in the notion that you must receive 37.50 hours of pay per calendar week, but the origins of this income does not have to be all one source (that is, it does not have to be 100% Annual Leave, 100% LSL, etc).

  Let's take this week as an example, in metropolitan Melbourne. November 3 (Tuesday) was a Public Holiday, the other days of the week are ordinary working days.

  Now, you'd be working 7.50 hours per day. So if you were to take this calendar week off as Annual Leave, your payslip would look something like this:

  Mon 2 Nov: 7.50 hours Annual Leave
  Tue 3 Nov: 7.50 hours Public Holiday
  Wed 4 Nov: 7.50 hours Annual Leave
  Thu 5 Nov: 7.50 hours Annual Leave
  Fri 6 Nov: 7.50 hours Annual Leave

  Thus, your week's summary would look as follows:

  Annual Leave taken: 30.00 hours
  Public Holiday: 7.50 hours
  Total: 37.50 hours

  Effectively, that's 80% Annual Leave, 20% Public Holiday. This is legal.

  In this example, you cannot take Tue 3 Nov as Annual Leave, and this is law.

  If I were to work a public holiday currently, we just get a day in lieu.

  As penalty rates above and beyond your ordinary wages will apply on a Public Holiday, and given the fact that 7.50 hours on a Public Holiday does not equal 7.50 ordinary hours (when it comes to $$), I'm not too sure if a "day in lieu" substitution is even legal. I'd lean towards no.

  HTH

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  tonka on 04/11/2015 - 03:00

  +1

  Your Manager is incorrect.
  I'm assuming you are permanent as you have annual leave.

  Yes your manager can ask you to work on a public holiday if it is reasonable.
  If you manager doesn't require you to work , you must be paid for the public holiday.
  If you have been granted annual leave then your manager doesn't require you to work.

  You are entitled to your 4-6 weeks annual leave (depending on occupation and shift pattern) plus scheduled public holidays.

  You could try to get your manager to understand by saying if you were to work you would get a day in lieu so if you use your annual leave to cover the day off wouldn't you still be entitled to the day in lieu.

  If it's not in your contract check Fairwork and your award. I haven't looked lately but it used to say explicitly if a public holiday fell during annual leave it couldn't be part of your leave and if a public holiday falls on a day you would normally work there should be no loss of pay.

  I've seen a lot of managers get confused by this. Because they can force you to work a public holiday they don't understand that you are still entitled to be paid if you have it off. I've seen a lot of employees let them get away with it too.

  Example -
  Manager - We are a 24hr company so it is reasonable to make you work a public holiday. True
  Employee - Ok, then rings in sick on the day. This isn't sick leave as the employee is entitled to normal pay on a public holiday they would normally work.

  Same goes for annual leave. If they approved the leave, they don't need you so you are entitled to the public holiday without loss of pay.

  Another one to watch out for for you and your mates.
  Example -
  Employee - Can I have the public holiday off.
  Manager - Sure I'll roster you off for that day / swap shifts etc so it falls on your day off.
  or maybe they organise the roster so the public holiday is a skeleton staff and it's everyone's weekend day.

  This is incorrect , if it was a day you would normally work you are entitled to the day off without loss of pay.

  Also some industries, like Nurses are supposed to be paid the holiday no matter what the roster.

  Let us know how you go.

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  Davo1111 on 04/11/2015 - 07:03

  Are you a Casual employee?

  • 

    ESEMCE on 04/11/2015 - 08:21

    Casual Employees don't get Annual Leave

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  noyesmaybeok on 04/11/2015 - 07:47

  A contracted person @ 37.5 hrs a week is "casual"?

  • 

    Amaris on 04/11/2015 - 09:19

    A contracted person @ 37.5 hrs a week is "temporary", not necessarily casual. This is true for everyone who has a fixed term contract rather than a permanent one.

  • 

    MrMcHairyHead on 04/11/2015 - 10:16

    Yep, that's what I was at Telstra. Normal 9 - 5, 38 hours a week, casual, so no sick days or annual leave.

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  DarkOz on 04/11/2015 - 09:18

  It depends on your contract. Do you receive anything in compensation of the unpaid public holidays? For example higher hourly rate or extra superannuation?

  Normally a full time worker are paid for their public holidays. You should take the matter up with Fairwork.

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  the-mal on 04/11/2015 - 09:55

  +1

  The fact that you have Annual Leave implies you are either:

  a) Permanent Full Time Employee
  b) Fixed Term Contractor

  In both instances, your manager is wrong.

  Fair work spell it out very simply: https://www.fairwork.gov.au/leave/public-holidays/not-workin…

  If a public holiday falls during a period of paid leave (eg. annual leave or sick leave), the employee has to be paid for the public holiday. This includes any hours that fall on a part-day public holiday.

  The public holiday will not be counted as annual leave or sick leave. This means that the public holiday hours will not be taken away from the employee’s amount of built-up paid leave.

  Very clear cut. Your manager is wrong. You get paid for Public Holidays and they don't get discounted from your Annual Leave. If they do discount them they're breaking the law.

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  PTSD on 04/11/2015 - 11:26

  +2

  All the other responses are correct. If you have an annual leave entitlement, the annual leave does not count on public holidays. Your manager is wrong; hopefully due to ignorance and not willfully. If your manager shows belligerence even after you point out the evidence (and make sure you do so respectfully), then escalate to either his manager or HR (if there is one). If they still won't budge speak to the FWC.

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  [Deactivated] on 04/11/2015 - 12:11

  THank you everyone for your feedback, much appreciated. I am permanent / full time (not casual). I will be taking this up with my manager and hopefully I will not have to seek assistance from fairwork. The issue with not being paid penalty rates for public holidays is another issue alltogether.. unfortunately it seems as because I am on 'salary' of 55K my manager says penality rates are incorporated into my salary.

  • 

    andymatter on 04/11/2015 - 13:06

    What do you do, if you don't mind me asking?

    • 

      [Deactivated] on 04/11/2015 - 13:54

      NO problem. I work in tech support for large company.

      • 

        modsec802 on 04/11/2015 - 18:59

        +1

        If you work for a large company, the payroll/HR system will take care of public holidays while on leave

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        tonka on 04/11/2015 - 20:04

        @juicedpixels:
        Not necessarily, that's been my job (Nat payroll Mgr) for many years and I still get Dept managers docking their employees public holiday / HR managers will do it too. They seem to think if they have bargained out the public holiday loading than there should be no public holiday entitlement. Despite the fact that they all take the PH off themselves.
        It will depend on the companies systems but if it is Roster driven or manual then managers usually have the access.

  • 

    [Deactivated] on 04/11/2015 - 17:14

    If you work a public holiday they have to either pay you penalty rates, or give you time in lieu.

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    andymatter on 11/11/2015 - 14:33

    Did you have any success?

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  LakeVostok on 04/11/2015 - 20:44

  +2

  Report to the Fair Work Ombudsman and the ATO

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  jlogic on 10/11/2015 - 00:40

  Ask the manager if they also had their Public Holiday taken out of their Annual Leave… cheeky buggers.