Payment on public holidays

Payment for public holidays
Sec 116 of the Fair Work Act 2009 provides that
“Payment for absence on public holiday
If, in accordance with this Division, an employee is absent from his or her employment on a day or part-day that is a public holiday, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work on the day or part-day.
Note: If the employee does not have ordinary hours of work on the public holiday, the employee is not entitled to payment under this section. For example, the employee is not entitled to payment if the employee is a casual employee who is not rostered on for the public holiday, or is a part-time employee whose part-time hours do not include the day of the week on which the public holiday occurs.”
What is the position when an employee is not rostered on and does not work a public holiday.
“This was canvassed in Queensland Nurses’ Union of Employees v Ramsay Health Care Australia Pty Ltd [2016] FCA 1486 delivered 12 December 2016 per Rangiah J were His Honour said

“The Four Employees did not work on various public holidays between 2010 and 2014. They were not rostered to work on those public holidays (and there is no suggestion that the employees were required to be “on call” on the public holidays after the roster was set). The question is whether s 116 applies to these employees, such that the respondent was required to pay them for the public holidays.
The obligation on an employer under s 116 of the FWA to pay an employee for a public holiday arises only where the employee is absent from his or her employment on the public holiday “in accordance with this Division”. The words “this Division” refer to Div 10, particularly s 114.
Section 114(1) of the FWA confers an entitlement (qualified by s 114(2)) on an employee to be absent from his or her employment on a public holiday. Section 114(1) operates upon the tacit assumption that the employee would otherwise be required to work under the terms of his or her employment on that day. Otherwise, there would be no point in conferring a statutory entitlement to be absent. Further, where s 116 applies, the employer is required to pay the employee “at the employee’s base rate of pay for the employee’s ordinary hours of work on the day or part-day”. The provision assumes that the employee has ordinary hours of work on the public holiday. This is reinforced by the note to s 116 which states, “If the employee does not have ordinary hours of work on the public holiday, the employee is not entitled to payment under this section.”
Depending on the context, the phrase “in accordance with” can mean “under an obligation created by” a particular term or provision: see Chan v Cresdon Pty Ltd (1989) 168 CLR 242 at 249. In its context in s 116, the phrase means “under the entitlement created by” s 114 of the FWA.
For the purposes of s 116 of the FWA, an employee will be absent from his or her employment on a public holiday “in accordance with” Div 10 if the employee is absent under the entitlement to be absent created by s 114. An employee will be absent under that entitlement if the employee has ordinary hours of work on the public holiday but does not work on that day, either because the employee is not requested by the employer to work, or refuses a request to work where the request is not reasonable or the refusal is reasonable.
This construction of s 116 is consistent with the examples given in the note to the section. One of the examples is of a part-time employee whose part-time hours do not include a public holiday. Such an employee is not absent from work under any entitlement under s 114 to be absent, but because the terms of employment do not require the employee to work on the public holiday. Further, such an employee does not have ordinary hours of work on the public holiday. The employee is therefore not entitled to payment under s 116 for the public holiday.
I am assisted in arriving at this construction by the reasoning in CPSU v The GEO Group Australia Pty Ltd [2012] FWA 6707, Re FBIS International Protective Services (Aust) Pty Ltd [2012] FWA 10043 and Dowsett v SouthLink Pty Ltd [2013] FWA 4978.
The issue is then whether the Four Employees were absent from work on the public holidays under, the entitlement created by s 114 of the FWA. This depends on whether they had ordinary hours of work on the public holidays for which they were not rostered. The FWA does not contain any general definition of the phrase “ordinary hours of work”. It is defined in s 20 in relation to “award/agreement free employees”, but that definition has no direct application to nurses employed by the respondent and covered by enterprise agreements.
The phrase “ordinary hours of work” appears in a number of provisions of the National Employment Standards, including in relation to maximum weekly hours of work (s 62), payment for annual leave (s 90), payment for personal/carer’s leave (s 96) and entitlement to redundancy pay (s 119).
Section 205(1) of the FWA provides that an enterprise agreement must include a term that requires the employer to consult the employees about a change to the “ordinary hours of work”. This provision suggests that the “ordinary hours of work” for an employee covered by an enterprise agreement are to be ascertained from the enterprise agreement and any other terms of employment.
Clause 1.4.1 of the 2009 Enterprise Agreement incorporates the Award. The Award provides that “the ordinary hours of work shall be an average of 38 hours per week”. That clause must read together with the contractual document which, relevantly, requires employees to work “80 hours per fortnight in accordance with the roster” and “to be available to work all shifts…on a rotating roster”.
Clause 5.1(a) of the 2012 Enterprise Agreement also states that “the ordinary hours of work shall be an average of 38 hours per week.” That clause must be read in light of clause 5.4(a) which requires employees to “work in accordance with a fortnightly roster to be agreed from time to time between the employer and a majority of employees in any workplace or part thereof.” Clause 5.1(a) must also be read in light of the contractual document.
One of the meanings of “accordance” given in the Oxford English Dictionary is “compliance”. In its context in the contract and the 2012 Enterprise Agreement, the phrase “in accordance with” means “in compliance with”.
Clause 5.4(b) of the 2012 Enterprise Agreement requires that the roster be agreed under cl 5.4(a)) set out the employees’ “periods of duty” and their starting and finishing times for such periods and be displayed at least seven days before the commencement of each fortnight. In my opinion, under the 2012 Enterprise Agreement the “ordinary hours of work” for the Four Employees are the hours set out in the roster.
The 2009 Enterprise Agreement itself is silent as to how and when the roster is set. However, when the 2009 Enterprise Agreement is read in light of the award and the contract, it is apparent that the “ordinary hours of work” for the Four Employees are also the hours set out in the roster.
The applicant’s argument that the employees have “ordinary hours of work” on every day of the year because they are required to be available to work on all shifts cannot be accepted. The phrase “the employee’s ordinary hours of work on the day or part-day” in s 116 of the FWA contains two questions rolled-up together, namely whether the employee would ordinarily have worked on the public holiday and, if so, what the ordinary hours are on that day. This is confirmed by cl 461 of the Explanatory Memorandum to the Fair Work Bill 2008 which states that “An employee is not entitled to any payment for absence on a public holiday if they would not have ordinarily worked on that day.” Thus, s 116 is concerned with whether the employee would ordinarily have worked on the public holiday if the employee were not absent from work in accordance with the entitlement under s 114.
The contract and the 2012 Enterprise Agreement require the employees to work “in accordance with” the roster. The employees are required to be available to work on all shifts, but are only required to work the shifts for which they are rostered. While the employees potentially have ordinary hours of work on any day before the roster for a fortnight is set, they actually have ordinary hours of work only on the days for which they are in fact rostered. Section 116 is concerned with the actuality, or reality, of the position.
As the Four Employees were not rostered to work on public holidays, they did not have ordinary hours of work on those days. They were absent from their employment because they were not required under the 2009 Enterprise Agreement, the 2012 Enterprise Agreement or their contracts to work on those days. Their absence from employment was not under any entitlement conferred by s 114(1) of the FWA. It follows, for the purposes of s 116 of the FWA, that their absence from work was not “in accordance with this Division”. Therefore, s 116 did not require the respondent to pay the Four Employees for the public holidays for which they were not rostered to, and did not, work.
The respondent has not contravened s 116 of the FWA and, therefore, has not contravened s 44.”