Working at Christmas or made to take leave? Ho Ho Hum

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Depending on the industry and workplace, employees often have to manage their annual leave because of workplace needs such as being required to work on public holidays or use their annual leave because of a business slow down. As such variations can be confusing, what are the rules and what can employers require over the festive season?

Working on public holidays

Section 114 of the Fair Work Act 2009 (Cth) (Act) provides that employees are entitled to be absent from work on a day or part day that is a public holiday.

On the other hand, an employer can ask an employee to work on a public holiday if the business needs to be operational on such days. If such a request is made, the employee may refuse if the request is unreasonable or the employee’s reasons are reasonable.

The Act provides a number of factors to be taken into account when determining if the request or the refusal are reasonable. These include:

• the nature of the employer's workplace and the nature of the work performed;
• the employee's personal circumstances, including family responsibilities;
• whether the employee could reasonably expect the employer might request work on the public holiday;
• whether the employee is entitled to receive overtime payments or penalty rates, or receives remuneration that reflects an expectation of work on the public holiday;
• the type of employment of the employee (for example shiftwork);
• the amount of notice given by the employer when making the request, or the amount of notice given by the employee when refusing the request.

Requirement to take annual leave

Modern awards and enterprise agreements may include terms requiring an employee to take paid annual leave in particular circumstances but only if the requirement is reasonable.

Employees who don’t come under an award or agreement may be required to take a period of paid annual leave but again, only if the requirement is reasonable.

A reasonable requirement may be where a business is closed for a short period. An example of this might be between Christmas and New Year.

Another example could be where an employer asks an employee to take unpaid annual leave. In this case, and effective from 1 May 2023, the shutdown provisions in 78 modern awards were varied by a decision of the Fair Work Commission. While an employee covered by one of these 78 awards may be directed (with written notice) to take a period of annual leave for which the employee has an accrued entitlement, an employer cannot require an employee to take unpaid leave or annual leave in advance during a shutdown period without the employee’s agreement. If an employee does not agree to take unpaid leave or annual leave in advance, the employer must continue to pay the employee. In that instance, the employer may identify useful work for the employee to perform during the shutdown rather than paying them to perform no duties.

Take away messages

Employers should review their practices in respect of requesting employees to work public holidays or directing them to take annual leave.

If you are unsure of your obligations, please contact your relevant Human Resource consultants.

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