Most wonderful time of the year. Are you across leave rules?

The Fairwork Ombudsman has issued a range of factsheets, updates and reminders in relation to employer obligations over the Christmas and New Year period, covering topics such as public holidays, annual leave payments, working out leave loading, and ensuring that all employees are aware of their obligations. 

The Sector have prepared a summary of the reminders, as they relate to those working in early childhood education and care (ECEC) below. For clarification or more information on any of the points listed below, readers are encouraged to contact the Ombudsman directly. 

 

Public holidays, state by state For a full list of public holidays in each state and territory, please see here. Key public holidays in the coming months are as follows: 

24 December - Christmas Eve (from 6pm- midnight) - QLD24 December - Christmas Eve (from 7pm - midnight) - NT, SA25 December - Christmas Day - ACT, NSW, NT, QLD, SA, TAS, VIC, WA26 December - Boxing/ Proclamation Day - ACT, NSW, NT, QLD, SA, TAS, VIC, WA31 December - New Year’s Eve (from 7pm - midnight) - NT, SA 

 

1 January - New Year’s Day - ACT, NSW, NT, QLD, SA, TAS, VIC, WA27 January - Australia Day (substitute day as Australia Day falls on a weekend) - ACT, NSW, NT, QLD, SA, TAS, VIC, WA 

 

Did you know; an employee is entitled to public holidays based on where they are meant to be, rather than where they are?

 

For example, if an employee is from a business located in Melbourne, and is sent interstate during November, they would be entitled to public holiday entitlements for Melbourne Cup Day, despite not being in the state at the time the public holiday fell. 

 

Working on public holidays An educator in Queensland may be asked to work a closing shift on Christmas Eve, meaning they are being asked to work on a Queensland public holiday. 

 

Employees may refuse a request to work on a public holiday, if they have reasonable grounds. Consideration must be made by both the employer and employee of the following elements, in order to determine if such a request is reasonable: 

• the employee's personal circumstances, (eg. family responsibilities)
• whether the employee will get more pay (eg. penalty rates)
• the needs of the workplace
• the type of work the employee does
• whether the employee's salary includes work on a public holiday
• whether the employee is full-time, part-time, casual or a shiftworker
• how much notice the employee was given about working
• the amount of notice the employee gives that they refuse to work.

 

Annual leaveAnnual leave is paid at the employee's current base pay rate for all hours of leave taken, not including extra payments such as:

• overtime rates
• penalties
• allowances
• Bonuses

 

Awards, enterprise agreements and other registered agreements can set out:

• a different method of payment for annual leave
• that annual leave loading is paid for annual leave

Employees need to request to take annual leave prior to going on leave, and the process for doing so varies from employer to employer. Information about how to request annual leave is typically set out in an award or registered agreement, company policy, or contract of employment. 

 

Employers can only refuse a request if the refusal is reasonable. In an ECEC context, an employer may refuse leave in order to maintain ratios across the centre, or to ensure continuity of care for children and families. 

 

There are no minimum or maximum amounts of annual leave that can be taken at any one time, once leave hours are accrued. Provided that both parties agree, leave may be taken one day at a time, or in a block of weeks. 

 

An employer can only ask an employee to take annual leave in certain situations. For example, when a business is closed during the Christmas and New Year Period, or when an employee has accrued excess annual leave. 

 

Specific rules around this are noted in registered agreements and awards. For more information, please review the relevant award, or visit the Fairwork Ombudsman website. 

 

Information about managing altered centre hours over the Christmas period was shared by the Department of Education and Training in 2018. To review this information, please see here.