Determination of what would otherwise be working day

12 Determination of what would otherwise be working day

(1)

This section applies for the purpose of determining an employee’s entitlements to a public holiday, an alternative holiday, to sick leave, to bereavement leave, or to family violence leave.

(2)

If it is not clear whether a day would otherwise be a working day for the employee, the employer and employee must take into account the factors listed in subsection (3), with a view to reaching agreement on the matter.

(3)

The factors are—

(a)

the employee’s employment agreement:

(b)

the employee’s work patterns:

(c)

any other relevant factors, including—

(i)

whether the employee works for the employer only when work is available:

(ii)

the employer’s rosters or other similar systems:

(iii)

the reasonable expectations of the employer and the employee that the employee would work on the day concerned.

(d)

whether, but for the day being a public holiday, an alternative holiday, or a day on which the employee was on sick leave or bereavement leave or family violence leave, the employee would have worked on the day concerned.

(3A)

If the public holiday, alternative holiday, or day on which the employee was on sick leave or bereavement leave or family violence leave falls during a closedown period, the factors listed in subsection (3) must be taken into account as if the closedown period were not in effect.

(4)

For the purposes of public holidays, if an employee would otherwise work any amount of time on a public holiday, that day must be treated as a day that would otherwise be a working day for the employee.

Section 12(1): amended, on 1 July 2019, by section 259(1) of the Family Violence Act 2018 (2018 No 46).

Section 12(1): amended, on 1 April 2019, by section 23(1) of the Domestic Violence—Victims’ Protection Act 2018 (2018 No 21).

Section 12(3)(d): added, on 1 April 2011, by section 7(1) of the Holidays Amendment Act 2010 (2010 No 126).

Section 12(3)(d): amended, on 1 July 2019, by section 259(1) of the Family Violence Act 2018 (2018 No 46).

Section 12(3)(d): amended, on 1 April 2019, by section 23(2) of the Domestic Violence—Victims’ Protection Act 2018 (2018 No 21).

Section 12(3A): inserted, on 27 November 2010, by section 7(2) of the Holidays Amendment Act 2010 (2010 No 126).

Section 12(3A): amended, on 1 July 2019, by section 259(1) of the Family Violence Act 2018 (2018 No 46).

Section 12(3A): amended, on 1 April 2019, by section 23(3) of the Domestic Violence—Victims’ Protection Act 2018 (2018 No 21).