Taken from the book: A Guide to The Employment Act and its Related Legislations, By Martin Gabriel, © HRmatters21
Your Entitlement to Public Holidays (Sec 88 of The Employment Act) This article only applies to those who are protected by the Employment Act and Managers not earning more than $4,500 (basic pay) per month.
There are 11 days paid public holidays in a year.
An employee is entitled to paid holidays once he is in service. Unlike annual leave, childcare leave, sick leave or maternity leave, where there is a qualifying period, there is no qualifying period for public holidays. For example, an organisation that offers a contract of service to an employee which indicates his start day as 1st January will have to pay him for that day even though it is a public holiday. Therefore if the organisation wants to save a day’s worth of employees pay, all they need to do is change the start day to 2nd January and by doing so, they would not need to pay the employee for that public holiday. After all, to the organisation it makes no difference as the new employee would not show up on the 1st of January as it is a designated public holiday (New Year’s Day). It’s basically a technical issue. With regard to productivity, there isn’t any difference. However, in terms of cost, it’s one day’s gross rate of pay which benefits the employee.
Holidays (Sec 88)
(1) Every employee shall be entitled to a paid holiday at his gross rate of pay on a public holiday that falls during the time that he is employed, subject to the following:
(a) by agreement between the employer and the employee any other day or days may be substituted for any one or more public holidays;
(b) if any public holiday falls on a rest day, the working day next following that rest day shall be a paid holiday; and
(c) if any public holiday falls on a day when the employee is not required to work under his contract of service, the employer may either pay the employee for that holiday at his gross rate of pay or give the employee a day off in substitution for that holiday.
Consumption of public holiday paid to employees is to be paid at gross rate of pay.
If a public holiday falls on a rest day (usually Sunday), that day is still a rest day and the next working day will be a public holiday.
If a public holiday falls on a non-working day (i.e. Saturday which is contractually a non-work day for some employees. This is not rest day which is usually a Sunday). One day off to be given in-lieu or pay one day’s gross rate of pay.
If an employee is required to comes back to work on a public holiday, and there is no replacement, he gets paid (plus) one day’s basic pay in addition to the gross rate of pay for that holiday, – Sec 88(4)
Any other substitution of the day can be mutually agreed.
Employers will be allowed the additional option to grant time-off-in-lieu to managers and executives who are required to work on a public holiday. This is an alternative to paying the employee an extra day’s salary at the basic rate of pay and the gross rate of pay for that holiday, or mutually agreeing to substitute the public holiday for any other day.
Managers and Executives
Managers and executives are entitled to time-off-in-lieu only if the employer had required the employee to work on the public holiday. The employer and employee should mutually agree on the number of hours of work on the public holiday. If an employee chooses to work on a public holiday on his own accord, there would be no time-off-in-lieu for the employee.
Assuming that he was asked by his employer to work on a public holiday, his compensation are as follows:
Sec 88(4A) – Notwithstanding subsections (1) and (4), where an employee who is employed in a managerial or an executive position is required by his employer to work on any public holiday to which he would otherwise be entitled under subsection (1), the employee shall be paid the gross rate of pay for that day and may be given the following, in-lieu of a day off in substitution for that holiday or an extra day’s salary at the basic rate of pay:
(a) part of a day off on a working day comprising such number of hours as may be agreed between the employee and his employer; and
(b) in the case where there is no such agreement –
(i) part of a day off on a working day comprising 4 hours if the employee worked on that holiday for a period not exceeding 4 hours; or
(ii) a day off on a working day if the employee worked on that holiday for a period of more than 4 hours.
To paraphrase the above provision, if you are in a managerial or executive position earning a basic pay of $4,500 or less, your employer may grant you time off in-lieu for working on a public holiday. The time off should consist of a mutually agreed number of hours. If there is no mutual agreement on the duration of time off, your employer can decide on one of the following:
- Pay an extra day’s salary at the basic rate of pay for one day’s work.
- For working four hours or less on a holiday, grant time off in-lieu for four hours on a working day.
- For working more than four hours on a holiday, grant a full day off on a working day.
Payments to Include Holidays (For Female Employee on Maternity Leave) – (Sec 77)
- The payment referred to in Sec 76 (length of benefit period for maternity) shall be paid for every day of the benefit period, including holidays, but not any day during the benefit period on which the female employee takes no-pay leave.
- Nothing in this section shall be construed to require an employer to pay to a female employee an extra day’s salary for a holiday which falls within the benefit period. When a female employee is on maternity leave of up to 12 weeks (or 16 weeks), whatever holidays that fall within the benefit period will be considered as paid. The employer is not required to pay any additional amount of wages.
- For example, if a staff is on maternity leave from 1 February – 25 April (12 weeks), whatever holidays that are within this period will be counted as paid holidays. Assuming she earns $2,000 for a period of four weeks, and February contains two days of public holiday. For the month of February which is equivalent to four weeks, she still receives $2,000 and the two days of public holiday would have been considered as paid. The employer need not pay her an extra amount for the two days of public holiday nor owe her the two days of public holiday.
Holiday Forfeiture
Sec 88(3) – An employee who absents himself from work on the working day immediately preceding or immediately succeeding a public holiday or any day substituted therefor under subsection (1) without the prior consent of his employer or without reasonable excuse shall not be entitled to any holiday pay for that holiday.
If an employee is absent on a working day immediately before or after the public holiday without his employer’s consent or proper reason, he will not be entitled to public holiday pay (gross rate) – Sec 88(3). The payroll officer should then be mindful to deduct two days’ pay at gross rate, as the employee was absent for a day either preceding the public holiday or after the public holiday. This includes the pay deducted for the public holiday itself.
88(2) – Notwithstanding subsection (1), no employee shall be entitled to holiday pay for any public holiday which falls on a day when the employee is on leave of absence without pay granted by the employer at the request of the employee.
Employees that apply for no pay leave within a range of dates that is before and after the public holiday would not be entitled to paid holiday as described by Sec 88(2). For example, if an employee applies for unpaid leave from Monday to Friday and Wednesday happens to be a public holiday, he would not be entitled to paid holiday for Wednesday. In other words, management would deduct five days of gross rate of pay, and not four days.
By Martin Gabriel, Senior HR Consultant, HRmatters21
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