Generally part-time workers are assumed by most Awards and the Fair Work Act 2009 and Fair Work Regulation 2009 to be working on fixed days every week, however we know that, particularly since the onslaught of COVID‑19 and in the increased movement of employers to make flexible arrangements with their employees in some industries that there are roles where permanent part-time employees have the flexibility to choose their own working days every week. It may not be a true permanent part time arrangement under the law but employers are certainly paying leave entitlements out to these employees and treating them as permanent staff members.
Bearing that in mind, it becomes a real problem when part-time employees are heading into the Christmas season and start choosing days to work on that are later going to be public holidays during the Christmas and New Year season. They feel entitled to be paid for that public holiday after a few weeks of working on that day and they put in their complaints if they are not. This is a real headache for payroll officers as we move into the holiday season. And we receive a lot of calls in a panic during this time with payroll officers feeling exasperated that employees can simply hop around their days as suits them and have it effect their pay outcomes.
In general, if the public holiday is a day that the employee ordinarily works, then they should be paid for it. That is what the legislation says. We also recommend that you look to the Award or Enterprise Agreement first for guidance, but sometimes these are silent on these types of arrangements.
What is a day that an employee ordinarily works? Is it the last few weeks prior to Christmas and the New Year or should it be assessed over a long period for these types of employees? And will we see this issue emerge not only during Christmas and New Year pay periods but also in the Easter season and when Anzac Day comes around?
We see room in this case for a policy to be introduced by employers, to cover the issue of just how many days would be considered to be a day the employee ordinarily works.
This is the only thing that can be controlled by the employer in order to predict wages on a regular basis. If you introduce it prior to Christmas, it will give payroll much more clarity. And it deals with the issue on a more human level than sending an employee an email stating “you are not a true permanent part time employee under the law and therefore we say that you are not entitled to be paid at all for that day”.
It's purely a practical measure and one that we find works in many workplaces that we advise.
Get in touch with us now if you wish us to prepare one for you prior to Christmas.
This is not legal advice.
