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Acknowledgement

Many thanks to Christa Lenard, Partner at Kingston Reid (via HR@Work) for the following information, that employee that are stood down are entitled to both be paid for public holidays and accrue leave. This is a legislated contradiction to the common law tenet that if you are on leave without pay, no entitlements are payable.

  1. Public holidays

Where an employee has been stood down without pay, they will be entitled to be paid for a PH if they were, but for the stand down, entitled to be paid.

This is because section 525 of the Fair Work Act stipulates that an employee is not taken to be stood down during any period of ‘authorised absence’. In addition to annual leave, public holidays have been specifically referred to in the Explanatory Memorandum to the Fair Work Act, as an example of ‘authorised absence’. Accordingly, if there is a public holiday during a period of stand down without pay, an employee who would ordinarily receive pay for the public holiday, will be considered to be on authorised absence rather than stood down without pay. As a result, they will be entitled to pay for the public holiday.

This is distinct from personal leave which is not considered to be in the same category of ‘authorised absence’.

  1. Accrual of leave

A period of stand down under s 524 of the FW Act counts as service under section 22 of the FW Act. Accordingly, leave etc continues to accrue during the stand down period.