Leave Calculator

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National Employment Standard -

Annual Leave

• How much annual leave does an employee get?
• How much is the employee paid?
• Calculating annual leave
• Taking annual leave
• Directing an employee to take annual leave
• Cashing out annual leave
• Is accrued annual leave paid out on a transfer of employment?
• Up to and including 31 December 2009

From 1 January 2010 annual leave entitlements form part of the National Employment Standards (NES) and replace minimum entitlements under the Australian Fair Pay and Conditions Standard (the Standard).

How much annual leave does an employee get?

Under the NES, all employees (except casual employees) get paid annual leave based on their ordinary hours of work.

Note: The annual leave entitlement below comes from the NES. An annual leave entitlement that comes from an award or agreement may be different, but cannot be less than the NES entitlement.

An employee is entitled to:

• 4 weeks annual leave for each 12 months of service
• 5 weeks annual leave for some shift workers for each 12 months of service.

Note:

• This doesn't apply to casuals
• To qualify for the shift work entitlement of five weeks annual leave, the employee must either be classified as a shift worker under an award or agreement, or if not covered by an award or agreement, they must meet all of the following criteria:
  • they are employed in an enterprise where shifts are continuously rostered 24 hours a day for seven days a week
  • they are regularly rostered to work those shifts
  • they regularly work on Sundays and public holidays.

• Awards and agreements may provide for additional annual leave entitlements over and above those provided in the NES.

How much is the employee paid?

The employer must pay annual leave at the employee's base rate of pay for their ordinary hours during the period of leave.

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

On termination of employment an employer must pay an employee in respect of any accrued untaken paid annual leave.

Calculating annual leave

Under the NES, an employee’s entitlement to annual leave accrues progressively during a year of service according to their ordinary hours of work and accumulates year to year.

Taking annual leave

An employee can take paid annual leave when their employer has agreed to their request for leave. The employer must not unreasonably refuse to agree to a request to take annual leave.

There's no minimum or maximum amount of accrued annual leave that must be taken at a time.

Directing an employee to take annual leave

An award or agreement (including transitional award or agreement based instruments) may allow for an employee to be directed to take annual leave in certain circumstances, for example:

• during a period of shut down (such as between Christmas and New Year)
• if the employee has an excessive accumulated annual leave balance.

However, the employer’s requirement or direction to take leave must be reasonable, taking into account factors such as:

• the needs of the employee and the employer’s business
• any agreed arrangement with the employee
• custom and practice of the business
• timing of the direction or requirement to take leave
• reasonableness of the period of notice given

Cashing out annual leave

Under the NES, for employees covered by an award or agreement (including transitional award or agreement based instruments) annual leave can be cashed out if the award or agreement (including transitional award or agreement based instruments) allows it. Award/agreement free employees may also agree with their employer to cash out annual leave. 

However, for all employees that agree to cash out annual leave, the following conditions apply:

• the employee must retain an entitlement to least four weeks paid annual leave
• there is a separate agreement in writing on each occasion that leave is cashed out
• the employer must not exert undue influence or undue pressure on an employee to agree to cash out an amount of annual leave
• the employee must be paid at least the full amount that would have been payable had the annual leave been taken.

Is accrued annual leave paid out on a transfer of employment?

A ‘transfer of employment’ occurs when an employee moves from one employer (the old employer) to another employer (the new employer) within three months of a transfer of business and performs substantially the same work for the new employer as they performed for the old employer.

A transfer of employment can also occur where an employee moves from one employer (the old employer) to another employer (the new employer) who is an associated entity of the old employer within 3 months of ending employment with the old employer.

A transfer of business can occur where one of the following connections between the old employer and the new employer exists:

• a transfer of assets
• outsourcing
• insourcing
• where the two employers are associated entities.

When there is a transfer of employment, the period of service with the old employer will generally count as service with the new employer, and the employee will keep any annual leave balance they had accrued with the old employer.

However, where the employers are not associated entities, the new employer can decide not to recognise an employee’s service in relation to annual leave with the old employer. In such cases, the old employer will be required to pay out the employee’s untaken accrued annual leave.

Up to and including 31 December 2009

Annual leave entitlements under the Australia Fair Pay and Conditions Standard (the Standard) apply up to and including 31 December 2009 and are generally the same as those under the NES with the following exceptions:

• Calculating annual leave
  Under the Standard, annual leave accrues progressively and is credited every four weeks (and is calculated according to the nominal hours worked). An employee is credited leave each month and this leave is cumulative. Under the NES, leave accrues progressively based on ordinary hours worked.
• Cashing out accrued paid annual leave
  Under the Standard, if an employee is covered by a workplace agreement that includes a provision allowing cashing out, they may request to 'cash out' up to two weeks of their annual leave every 12 months.
• Calculating an excessive annual leave balance
  Under the Standard, an excessive accumulated annual leave balance is equivalent to eight weeks for an employee working 38 hours per week over a two year period. An employer can only direct an employee to take up to 1/4 of their leave balance in this situation. The NES is not as prescriptive in this regard and rules regarding excessive leave balances would be in modern award/enterprise agreement/transitional instruments.
  

Personal / carer's leave and compassionate leave

• How much personal/carer’s leave does an employee get?
• Notice and evidence
• How much is the employee paid?
• Calculating personal/carer’s leave
• Cashing out personal/carer’s leave
• Unpaid carer’s leave
• Compassionate leave
• Up to and including 31 December 2009

From 1 January 2010, the National Employment Standards (NES) replace the non-pay rate provisions of the Australian Fair Pay and Conditions Standard (the Standard).

Entitlements to personal/carer’s leave and compassionate leave under the NES are:

Paid personal/carer’s leave:

• Who: for all employees except casuals.
• When: when the employee is sick or injured or when the employee needs to care for an immediate family or household member who's sick, injured or has an unexpected emergency.
• 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.

Unpaid carer's leave:

• Who: for all employees, including casuals.
• When: same as for paid carer’s leave.
  (Full and part time employees can only use this when they have used up all of their paid personal/carer’s leave.)

Paid compassionate leave:

• Who: for all employees except casuals.
• When: an immediate family or household member:
  • gets an injury or illness that threatens their life; or
  • dies.

Unpaid compassionate leave:

• Who: for casual employees only.
• When: same as for paid compassionate leave.

Note: An employee isn't entitled to take or accrue any personal/carer’s leave or compassionate leave while getting workers' compensation payments. This is unless there's an applicable federal, state or territory law about workers compensation that says otherwise.

How much personal/carer’s and compassionate leave does an employee get?

All employees (except casuals) are entitled to paid personal/carer’s leave under the NES.

The personal/carer’s leave entitlement below comes from the NES. An entitlement to personal/carer’s leave that comes from an award or agreement may be different, but cannot be less than the entitlement under the NES.

• Paid personal/carer's leave = 10 days each year.
• Unpaid carer's leave = 2 days per occasion (for casual employees or if paid leave has been used).
• Paid compassionate leave = 2 days per occasion.
• Unpaid compassionate leave (casual employees only) = 2 days per occasion.

An employee’s entitlement to paid personal/carer’s leave accrues progressively during a year of service according to the number of ordinary hours worked, and accumulates from year to year.

Notice and evidence

When taking personal leave (including carer’s and compassionate leave), an employee must let their employer know as soon as possible that they're unable to work. They must also let their employer know the period of leave, or expected period of leave.

An employer is entitled to request evidence that would substantiate the reason for leave. The employee is not entitled to the leave if the employee fails to provide either:

• notice (as soon as practicable), or
• evidence (when requested) that would satisfy a reasonable person.

An award or agreement may include terms relating to the kind of evidence that an employee must provide in order to be entitled to paid personal/carer’s leave, unpaid carer’s leave or compassionate leave. For example, an employer may request that the employee provides a medical certificate.

How much is the employee paid?

The employer must pay personal/carer’s and compassionate leave at the employee's base rate of pay for the ordinary hours they would have worked during the period of leave.

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

When an employee takes a period of paid personal/carer’s or compassionate leave, they're entitled to be paid for each hour (or part hour) of leave taken.

Calculating personal/carer’s leave

An employee (other than a casual) is entitled to paid personal/carer’s leave of 10 days per year of service. The entitlement to paid personal/carer’s leave accrues progressively during a year of service according to the number of ordinary hours worked, and accumulates from year to year.

All employees (including casuals) are also entitled to two days unpaid carer's leave for each occasion they need it.

Can personal/carer’s and compassionate leave be cashed out?

For employees covered by an award or agreement, cashing out of paid personal/carer’s leave is permitted if all of the following apply:

• the award or agreement allows it
• there must be a separate agreement in writing on each occasion that leave is cashed out
• the employee must retain a balance of at least 15 days of untaken paid personal/carer’s leave
• the employee must be paid at least the full amount that would have been payable had the employee taken the leave that the employee has cashed out.

An employer must not exert undue influence or undue pressure on an employee to cash out a period of personal/carer’s leave.

An employee not covered by an award or agreement is not able to cash out paid personal/carer’s leave.

Compassionate leave can't be cashed out.

Unpaid carer's leave

All employees, including casual employees are entitled to two days unpaid carer's leave for when a member of their immediate family or household requires care and support due to illness, injury or an unexpected emergency.

Full-time and part-time employees are only eligible for unpaid carer’s leave if they don't have any paid personal/carer’s leave left.

Unpaid carer’s leave can be taken in one continuous period (eg. two consecutive working days) or in separate periods agreed between the employee and employer (eg. four consecutive half-days could be taken, so the employee can share caring duties with someone else).

Compassionate leave

An employee (including a casual employee) is entitled to two days of compassionate leave to spend time with a member of the employee’s immediate family or household who has sustained a life-threatening illness or injury. Compassionate leave may also be taken after the death of a member of the employee’s immediate family or household.

An employee may take compassionate leave for each occasion as:

• a single continuous two day period; or
• two separate periods of one day each; or
• any separate periods to which the employee and his or her employer agree.

If an employee, other than a casual employee, takes a period of compassionate leave, the employer must pay the employee at the employee’s base rate of pay for the ordinary hours they would have worked during the period of leave.

Up to and including 31 December 2009

Personal/carer’s and compassionate leave entitlements under the Australian Fair Pay and Conditions Standard (the Standard) apply up to and including 31 December 2009 and are generally the same as those under the NES, with the following exceptions:

• There is no entitlement for unpaid compassionate leave for casual employees in the standard - there is in the NES.
• An employee can take a maximum of 10 days of paid carer’s leave (regardless of an employee’s cumulative personal/carer’s leave balance) under the standard - this limit does not apply under the NES.
• Requirements to provide notice and evidence do not apply to an employee who's unable to provide the notice or evidence because of circumstances beyond their control under the Standard.

Parental leave

• Who can take parental leave?
• How much parental leave does an employee get?
• How parental leave works
• Notice and evidence
• Return to work guarantee
• Special considerations
• Up to and including 31 December 2009

From 1 January 2010, the National Employment Standards (NES) replace the non-pay rate provisions of the Australian Fair Pay and Conditions Standard (the Standard).

The NES provides unpaid parental leave including birth-related leave and adoption-related leave.

Minimum entitlements to parental leave under the NES apply to all employees employed in Australia (including those covered by state industrial laws). However, if state laws are more beneficial to employees than the NES, then these will apply.

Different rules apply from 1 January 2010 in the case of employees who are employed by sole traders, partnerships, other unincorporated entities and non-trading corporations  in New South Wales, Queensland, South Australia or Tasmania. If such an employee is ‘in the middle’ of accessing parental leave on 1 January 2010, they are entitled to continue on that leave under the NES for the remainder of the parental leave period. The amount, time and arrangements for taking that leave may be adjusted as necessary to be consistent with the provisions of the NES. This does not affect any more favourable arrangements that were in place for the taking of such leave (e.g., more favourable rate of pay).

Who can take parental leave?

To get parental leave, the employee must have worked for the employer for 12 months or more immediately before the date of birth or placement of the child (or expected date of birth or placement).

If leave commences within 12 months of the date of birth or placement of a child, and the employee’s spouse or de facto partner cares for the child between the date of birth or placement and the commencement of leave, the employee must have worked for 12 months before the proposed leave is to start.

Casuals must have worked for the employer on a regular and systematic basis for 12 months and also reasonably expect to have continued working for the employer on a regular and systematic basis if they weren't having or adopting a child.

Parental leave is available to both parents in a relationship, including de-facto and same-sex couples.

How much parental leave does an employee get?

New parents can each take a maximum of 12 months of unpaid leave. Generally, parental leave can only be taken by one parent at a time and in a single continuous period.

There is an option to request to extend one parent’s leave to a maximum of 24 months, reduced by the amount of any leave taken by their partner.

If a parent takes any other related authorised leave, including paid leave such as annual leave, this reduces the total of unpaid leave for the couple.

Minimum entitlements to parental leave under the NES apply to all employees employed in Australia (including those covered by state industrial laws). However, if state laws are more beneficial to employees than the NES, then these will apply. 

How parental leave works

Parental leave differs for:

• parents where both are employees, each of which is the spouse or de facto partner of the other (an ‘employee couple’)
• parents who are single or the only employee in the couple.

Employee couple

Each eligible member of an ‘employee couple’ may take a separate period of up to 12 months of unpaid parental leave if the leave is associated with either:

• the birth of a child of the employee, or the employee’s spouse or de facto partner
• the placement of a child under 16 with the employee for adoption.

In either case, the leave is only available if the employee has or will have responsibility for the care of the child.

The entitlement of up to 12 months unpaid parental leave is reduced by the amount of any unpaid special maternity leave the employee has taken.

Both members of an employee couple intend taking leave

The following rules apply to an employee couple if both employees take unpaid parental leave:

• both employees may at the same time each take up to three weeks unpaid parental leave (reducing their overall entitlement) either immediately after the birth or placement of a child or by agreement with the employer, at any time during an extended period starting before the birth and ending no later than six weeks after the birth or placement.
• remaining leave must be taken separately in a single continuous period (paid leave, such as annual leave, may be taken at the same time)
• if the employee who takes leave first is pregnant or gives birth, they may start their leave up to six weeks before the expected date of birth
• if the employee who takes leave first is not pregnant, their leave must start on the date of birth or placement of a child
• the second employee must start their leave immediately after the first employee’s leave finishes
• they are entitled to no more than 24 months between them.

The following rules apply where one employee (or only one member of an employee couple) takes leave:

• leave must be taken in a single continuous period  (paid leave, such as annual leave, may be taken at the same time)
• leave starts on the date of the birth or placement of the child or, in the case of a pregnant employee, up to six weeks before the expected date of birth
• leave may start at any time within 12 months after the birth or placement of the child if:
  • the employee has a spouse or de facto partner who is not an employee
  • the spouse or de facto partner has responsibility for the care of the child between the date of birth or placement and the commencement of the leave.

Definitions

The ‘child of a person’ includes a person’s biological, adopted or step child.

An employee’s ‘de facto partner’ is defined as a person who, although not legally married to the employee, lives with them in a relationship as a couple on a genuine domestic basis. Former de facto partners are also included.

The Fair Work Act 2009 ensures that same sex de facto relationships are recognised for unpaid parental leave entitlements. This means that the same sex de facto partner of either a person who gives birth or a biological parent may be eligible to take unpaid birth-related leave.

Extending unpaid parental leave

An employee who takes 12 months parental leave may request his or her employer to agree to an extension of a further 12 months leave (up to 24 months in total), provided that if the employee is a member of an employee couple the other member of the employee couple has not already taken that amount of leave.

The employee must request the extension in writing at least four weeks before the end of the initial period of leave.

The employer must respond in writing within 21 days stating whether they grant or refuse the request. Employers may refuse the request only on reasonable business grounds and must include the reasons for the refusal in the written response. 

The NES do not define ‘reasonable business grounds’ for refusing a request, but relevant factors may include:

• the effect on the workplace (eg. the impact on finances, efficiency, productivity, customer service)
• the inability to manage the workload among existing staff
• the inability to recruit a replacement employee

Unpaid pre-adoption leave

Adopting parents can take up to two days of pre-adoption leave for necessary adoption interviews or exams (unless their employer requires them to take other leave they have available).

The employee must give notice of the intention to take unpaid pre-adoption leave and, if required, provide reasonable evidence of the purpose of the leave.

Notice and evidence

For parental leave, employees must do the following:

• inform their employer of their intention to take unpaid parental leave by giving at least 10 weeks written notice (unless it is not possible to do so)
• specify the intended start and end dates of the leave
• at least four weeks before the intended start date:
  • confirm the intended start and end dates or
  • advise the employer of any changes to the intended start and end dates (unless it is not possible to do so).

An employer may require evidence that would satisfy a reasonable person of the actual or expected date of birth of a child (eg. a medical certificate), or the day or expected day of placement of a child under 16.

Return to work guarantee

When an employee wants to return to work after parental leave:

• they are entitled to return to the same position they held before taking parental leave
• if the position they held no longer exists they are entitled to return to an available position for which they are qualified and suited that is nearest in status and pay to their previous position.

While the employee is on parental leave, the employer must keep the employee informed of decisions that affect the status, pay or location of the employee’s position.

Special considerations

Can a pregnant employee be required to take parental leave within six weeks before the birth?

A pregnant employee wanting to work the six weeks before birth may be asked by the employer to provide a medical certificate containing the following:

• a statement of whether the employee is fit for work;
• if the employee is fit for work, a statement of whether it is inadvisable for the employee to continue in her present position because of:
  • illness, or risks, arising out of the employee’s pregnancy; or
  • hazards connected with the position.
    

The employer may require the employee to take a period of unpaid parental leave as soon as practicable if one of the following applies:

• the employee doesn’t provide the certificate within seven days after the request
• the employee provides a certificate within seven days stating that they are not fit for work or
• the employee provides a certificate stating they are fit for work, but that it is inadvisable to continue in the present position due to illness, risk to the pregnancy, or job-related hazards
• the employee is not entitled to transfer to a safe job or to ‘no safe job leave’ (see below).

This form of directed leave runs until the end of the pregnancy or until the planned leave was due to start, and is deducted from the employee’s unpaid parental leave entitlement. It is exempt from the rules about when the leave must start and that it be taken in a continuous period, as well as notice requirements.

What if it's not safe for a pregnant employee to do her usual job?

If it's not safe for a pregnant employee who's entitled to parental leave to continue in her usual job, she can be transferred to a 'safe' job. If transferred, she's entitled to the same ordinary hours as her present job, or different hours by agreement.

The employee must provide her employer with reasonable evidence that she can work, but can't perform her usual job. The employer may require the evidence to be a medical certificate.

If the employer can’t transfer the employee to a safe job, she may take (or be required by her employer to take) paid ‘no safe job’ leave for the time stated in the medical certificate or until the pregnancy ends (either by giving birth or otherwise).

The amount of this paid leave will not reduce the length of the unpaid maternity leave the employee's entitled to.

What happens for stillbirths, miscarriages, or pregnancy-related illnesses?

A woman can take 'special' maternity leave if she has:

• a pregnancy-related illness, or
• a miscarriage or stillbirth within 28 weeks of the expected date of birth.

The employee must:

• give notice that she is taking unpaid special maternity leave (which may be given after the leave has started)
• advise the employer of the period of leave (or expected period of leave)
• if required by the employer, give reasonable evidence of the reason for the leave, which the employer may require to be a medical certificate.

The entitlement to unpaid parental leave is reduced by the amount of any unpaid special maternity leave taken by the employee while she is pregnant.

Up to and including 31 December 2009

Parental leave entitlements under the Australia Fair Pay and Conditions Standard (the Standard) apply up to and including 31 December 2009 and are generally the same as those under the NES with the following exceptions under the Standard:

• New mothers can take up to 52 weeks continuous unpaid leave if they are the primary caregiver ('ordinary maternity leave').
• New mothers taking ordinary maternity leave must take a minimum of 6 weeks leave immediately after the birth of their child.
• New fathers can take up to 52 weeks continuous unpaid leave if they are the primary caregiver (‘long paternity leave'.) or up to one week unpaid leave if they are not the primary caregiver (‘short paternity leave’).
• The maximum of 52 weeks of unpaid leave may be split between parents.
• Parental leave for adoption is restricted to children under five, along with other conditions (adoption leave).
• Extensions to parental leave over 12 months are not available.
• Same-sex relationships are not explicitly recognised for the purposes of parental leave.

Community service leave

• What is community service leave?
• Service must be with a recognised emergency management body
• How much leave is an employee entitled to?
• Notice and evidence
• Is community service leave paid?
• Up to and including 31 December 2009

From 1 January 2010, the National Employment Standards (NES) replace the non-pay rate provisions of the Australian Fair Pay and Conditions Standard (the Standard). Under the NES there is an entitlement to community service leave.

What is community service leave?

Employees, including casual employees, are entitled to take leave to carry out certain community service activities such as:

• jury service (including attendance for jury selection)
• a ‘voluntary emergency management activity’ where all the following apply:
  • the activity deals with an emergency or natural disaster
  • the employee engages in the activity on a voluntary basis
  • the employee is a member of, or has a member-like association with, a ‘recognised emergency management body’
  • the body requests the employee to engage in the activity, or it would be reasonable to expect that such a request would have been made.

Service must be with a recognised emergency management body

A recognised emergency management body is:

• a body, or part of a body, that has a role or function under a plan that:
  • is for coping with emergencies and/or disasters, and
  • is prepared by the Commonwealth, a State or a Territory

• a fire-fighting, civil defence or rescue body, or part of such a body
• any other body, or part of a body, which substantially involves:
  • securing the safety of persons or animals in an emergency or natural disaster
  • protecting property in an emergency or natural disaster
  • otherwise responding to an emergency or natural disaster

The following are examples of bodies that would be recognised for the purposes of community service leave:

• 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?

There is no set limit on the amount of community service leave an employee is entitled to.

An employee is entitled to take leave for an amount of time reasonable in the circumstances while engaged in the eligible community service activity, including:

• travelling time associated with the activity and
• rest time immediately following the activity.

Note: the reasonableness requirement does not apply to jury service. 

Notice and evidence

For community service leave, employees must give their employer:

• notice of the leave
• the period or expected period of leave.
• if requested, reasonable evidence that the employee is entitled to the leave.

Is community service leave paid?

Community service leave is unpaid except for jury service.

Community service leave for jury service is paid for employees other than casuals. An employee (other than a casual) is entitled to ‘make-up pay’ for the first 10 days that the employee is absent for a period of jury service.

Make-up pay is the difference between:

• any jury service pay the employee receives (excluding any expense-related allowances) and
• the employee’s base rate of pay for each hour (or part hour) they would have worked, excluding separate entitlements, such as incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates.

Before paying make-up pay, an employer may ask the employee to provide reasonable evidence:

• that they tried to claim jury service pay
• of the total amount of jury service pay that has been paid (even if there was no jury service payment),
• of the total amount of jury service pay that is payable, for the period (even if there was no jury service payment).

If the relevant State or Territory laws provide more beneficial entitlements than the NES in relation to eligible community service activities, those laws continue to apply. This may be particularly relevant for paid jury service.

Up to and including 31 December 2009

There are no community service leave entitlements under the Australia Fair Pay and Conditions Standard (the Standard), which applies up to and including 31 December 2009.

Public holidays

• What employees get
• Requesting and refusing to work on public holidays
• Substituting public holidays
• 2010 public holidays
• Up to and including 31 December 2009

From 1 January 2010, public holiday entitlements form part of the National Employment Standards (NES) and replace entitlements under the Workplace Relations Act.

A public holiday is a day that the Australian, state or territory governments have declared to be a holiday, such as Australia Day.

Under the NES most employees are entitled to a day off, and to be paid for public holidays, if they usually would have worked on that day.

Some public holidays apply across Australia and some only apply in certain states, territories or regions.

What employees get

Employees are paid for public holidays at the base rate of pay for the employee’s ordinary hours of work on that day or part-day. The base rate of pay 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 ordinarily work on that day. 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.

Public holiday pay for employees who work on a public holiday depends on whether they're covered by an award or agreement that provides for penalty rates to be paid for work on public holidays.

Requesting and refusing to work on public holidays

An employer can request an employee work on any public holiday and an employee can refuse. Both the request and refusal must be reasonable.

A number of factors are considered when deciding if a request or refusal is reasonable, including:

• 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 (eg. full-time, part-time, casual or shiftwork)
• the amount of notice given by
  • the employer when making the request
  • the employee in refusing the request

• any other relevant matter.

No single factor decides if a request or refusal is reasonable. They are used in combination. 

Substituting public holidays

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

An employer and employee can also agree to a substitution of this kind, on the condition that an employer does not exert undue influence or undue pressure on an employee to do so.

2010 public holidays

Note: Many states have regional public holidays that apply only in a specific area. You should contact the relevant state body below for more information on these holidays.
The following days are public holidays under the NES:

• 1 January (New Year’s Day)
• 26 January (Australia Day)
• Good Friday
• Easter Monday
• 25 April (Anzac Day)
• Queen’s birthday holiday (on the day on which it is celebrated in a State or Territory or a region of a State or Territory)
• 25 December (Christmas Day)
• 26 December (Boxing Day)
• any other day, or part-day, declared or prescribed by or under a law of a State or Territory to be observed generally within the State or Territory, or a region of the State or Territory as a public holiday.
  

 Up to and including 31 December 2009

Public holiday entitlements under the Workplace Relations Act apply up to and including 31 December 2009 and are generally the same as those under the NES, with the exceptions that are under the Workplace Relations Act.