Unpaid parental leave: what about public holidays?

Unpaid parental leave: what about public holidays?

By Paul Munro on 9 October 2018 Is an employee on unpaid parental leave entitled to payment for public holidays?

This question was recently sent to our Ask an Expert service.

Q We have an employee who is absent on 12 months’ unpaid parental leave. During the period of this leave, the employee has taken her accrued annual leave and accrued long service leave. She is due to return to work in February next year.

The employee has asked whether she is entitled to payment for the public holidays over the Christmas-New Year period as well as the Australia Day holiday next year. The Fair Work Act appears to be silent on this point, although it does allow taking annual leave during parental leave.

Is the employee entitled to payment for any public holiday that falls during her period of unpaid parental leave?

A The answer is no. The Fair Work Act (s79) does not prevent an employee from taking any other kind of paid leave while taking unpaid parental leave, however a public holiday would not be regarded as a kind of paid leave.

While the Act does not specifically refer to public holidays in regard to an absence on unpaid parental leave, the Explanatory Memorandum to the Fair Work Bill 2008 provides an illustrative example which states that an employee on unpaid parental leave would not be entitled to payment for a public holiday.

The Fair Work Act does specifically provide that an employee is NOT entitled to paid personal/carer’s leave or compassionate leave during an absence on unpaid parental leave. Also, an employee is NOT entitled to any payment under community service leave (which covers jury duty and volunteer emergency service activities) during unpaid parental leave.

The bottom line: An employee who is absent on unpaid parental leave is not entitled to payment for any public holiday that falls during the period of the leave.
 

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