Understanding the New Employment Leave Act: Part Three– The Impact on Other Leave Entitlements

The way employees earn and use their leave will change significantly when the new Employment Leave Act comes into force in 2028. This new legislation reshapes leave entitlements, affecting both employers and employees. Understanding these changes is essential for managing time off fairly and efficiently. In this final part of the series we briefly explain the key points of the new Act in respect to how leave accrual for Public Holidays will work and discuss other eave arrangements.

Annual Closedown

Under the Act an employer may still have an annual closedown and as is allowed currently  may have different annual closedowns for different employees.  However, an employer must not have more than one annual closedown starting in each calendar year for any individual employee.

What will be different is that if the employer is going to have a closedown, they must notify the employee(s) of the annual closedown at least 21 days before it starts.  This is an increase on the current requirement of 14 days’ notice.  Further, Act requires the notice of any closedown to be in writing and must specify:

• when the annual closedown will start and end; and

• any requirement for the employee to take annual leave or unpaid leave during the annual closedown; and

• if the employer allows the employee to take annual leave in advance, that the employee may take annual leave in advance during the annual closedown; and

• any other leave arrangements available to the employee for the annual closedown (for example, alternative leave or long-service leave).
  

When it comes to requiring an employee to take their annual leave during a closedown the employer may only require the employee to use annual leave that the employee has accrued at the time when it is taken; and may require the employee to take unpaid leave if the employee’s accrued annual leave will be insufficient to cover the annual closedown.   

Where an employee has insufficient accrued leave, they may request to use of annual leave in advance. The employer may only approve this if the employee  makes such a requests.  The employer CANNOT require the employee to anticipate their leave for a closedown.   However, the employer and employee  may also agree any other leave arrangement that is available to the employee (e.g. alternative leave or long-service leave).

Bereavement Leave

The Act requires an employee who intends to take bereavement leave to notify their employer of that intention as early as possible before the employee is due to start work on the day on which the employee intends to take bereavement leave or if that is not practicable, as early as possible after that time.

The current 3 days and 1 day of leave remains the statutory minimum for bereavement leave.

An employee who suffers more than one bereavement at the same time may take the applicable amount of bereavement leave in respect of each bereavement.  For example,  if both parents were to pass at the same time, the employee would be entitled to a minimum of six days bereavement leave.

Bereavement leave will be available to employees from their first day of employment and the leave may be taken in either whole or part days.

Where an employee works only standard hours, this will be the basis of their whole or part-day of bereavement leave.

Where an employee’s standard work hours are set by a roster (including a notional roster), the hours set in that roster  specify the whole or part-day of bereavement leave.

Where an employee’s employment agreement or roster provides for the employee to work additional hours under an availability provision, then those additional hours will apply to any bereavement leave taken.

If the employee is a casual and that employee notifies their employer of their intention to take bereavement leave after the employer sets their casual hours, including in any work roster,  that they have agreed to work, those hours will apply to any bereavement leave taken.

An employee is not entitled to take bereavement leave on a day if the employee and their employer expect that the employee would not work on that day or on that part of the day because the employee is:

• on parental leave; or

• on volunteers leave; or

• paid accident compensation; or

• on unpaid leave.
  

Public Holidays

Under the Act, if an employee works on a public holiday that would otherwise have been a working day for the employee, whether they work any part of that day or are on call for any part of that day, the employee accrues alternative leave for each hour or each part hour they worked.

Where the employee’s employment agreement provides that the employer may require the employee to work on a public holiday and the employee is on call, the amount of alternative leave that accrues is calculated as follows:

• when the employee is on call; if the employee is not called to work on the public holiday they accrue an hour for each hour  (or a part hour for each part hour) they are on call.

• if the employee is called to work on the public holiday, the sum of the following hours:

  • for each hour that the employee is on call but does not work, an hour; and

  • for each part of an hour that the employee is on call but does not work, that part of an hour; and

  • for each hour that the employee works on that day, an hour; and

  • for each part of an hour that the employee works on that day, that part of an hour.
    

The maximum amount of alternative leave that an employee accrues is the number of hours that the employee would otherwise have worked on the public holiday.

An employee’s entitlement to accrued alternative leave remains in force until it is either taken or the employee has been paid for the alternative leave.

If an employee only works on public holidays, they do not accrue any alternative leave.

Payment for working on public holiday

Where an employee works on a public holiday, whether or not the public holiday is an otherwise working day for the employee, the employee must be paid their normal rate of pay, as per their employment agreement, less any identifiable amount; and the greater of the following:

• 50% of the employee’s ordinary hourly rate; or

• any identifiable amount.
  

For the purpose of a public holiday identifiable amount means an amount that is payable, in addition to the employee’s ordinary hourly rate, to compensate the employee for working on a particular day of the week or a public holiday.

For example if your employment agreement specifies the employee will be paid a flat $100 gross in addition to their hourly rate for working on the public holiday, and their hourly rate is $40 gross per hour, the following occurs:

• Where the employee works four hours on the public holiday, their pay is 4 x $40 = $160 gross.  50% of that is an additional $80.  This is less than the identifiable amount, so the employee is paid $260 for the four hours.

• In addition to the amount for the hours worked on the public holiday, the employer must pay the employee for any hours not worked on the public holiday if the number of hours the employee worked is less than what they would have worked if the day was not a public holiday.

  
  

If the employee is subject to a Leave Compensation Payment (LCP) then the LCP must be attributed to the payment. 

To put this into an example; An employee normally works an 8 hour day at $40 per hour gross.  Their employment agreement includes a identifiable payment of $100 gross as compensation for working on a public holiday.

The employee works four hours on the public holiday.

Their pay is 4 x $40 + $160.  They are paid the greater of 50% of this amount or the $100 identifiable payment.  In this case 50% is $80, therefore the identifiable payment is added NOT the 50%.  The employee is also paid their remaining 4 hours at $40.  Their total pay for the day is $420 gross.

Where the employee is subject to an LCP, using the same example above, the employee is paid $420 plus 12.5% ($52.50) giving a total pay for the day of $472.50 gross.

Disclaimer: This blog does not touch upon every aspect of the new Act as it applies to Sick Leave and is only presented to give a better insight to the changes that will apply when the legislation comes into force on 6 August 2028. This blog provides general information about the new Employment Leave Act and does not constitute professional or legal advice.