Christmas is fast approaching, and you are already dreaming about lazy days on the beach. But before you pack your suitcase, what about dealing with those Christmas leave requests? At LegalVision, employees and employers often ask us about the rules surrounding annual leave around the Christmas and New Year period. 

Some typical questions we receive are:

  • Can I force my employees to take unpaid leave during a shutdown?
  • What if my employee does not have enough accrued leave but doesn’t want to take unpaid leave either?
  • What do I do if I require my employees to work the Christmas period including public holidays?
  • Do I need to pay a levy for public holidays my employees work?

We will answer all these questions in our Christmas special!

1. What are my Rights and Obligations Concerning Forced Shutdowns and Annual Leave?

In certain circumstances, you can request that employees take annual leave. You can also deny requests for leave where you require the employee to meet the needs of the business.

Firstly, you should check whether an award or an enterprise agreement covers your employee. These will determine whether you can force the employee to take annual leave during a shutdown. If not, you should then consult your employment agreement with the employee to see whether there is a relevant policy around shutting down during the Christmas and New Year Period.

If you have no work for your employees, or your office shuts down, you can direct your employees to take annual leave. The process will then be a matter of negotiation with the employee as to whether they take unpaid or paid leave during that period.

2. What if My Employee Has Not Accrued Sufficient Annual Leave?

If your employee has not accrued sufficient annual leave, then you should consult the award or enterprise agreement relevant to the employee as this will determine the process by which the employee can take annual leave.

If an award or enterprise agreement does not cover the employee, then you can request that the employee takes the annual leave as unpaid leave or that they use their annual leave in advance. If they do not agree to either of these options, then you are required to pay their normal salary for that period.

When calculating annual leave over the Christmas and New Year period it is important to remember that for permanent staff, if they would typically work the public holiday you must count that day as a public holiday rather than a day of annual leave.

3. What are the Official Christmas and New Year Public Holidays?

This table sets out the relevant public holidays for the Christmas and New Year Period 2016/2017 in Australia:

Saturday 24 Dec 2016 Christmas Eve (from 7pm-Midnight) South Australia only
Sunday 25 Dec 2016 Christmas Day National (except South Australia and Victoria)
Monday 26 Dec 2016 Boxing Day National / Proclamation Day (South Australia)
Tuesday 27 Dec 2016 Christmas Holiday Additional Day
(additional holiday as the public holiday falls on a weekend)
National
Saturday 31 Dec New Year’s Eve (from 7pm-Midnight) South Australia only
Sunday 1 Jan 2017 New Year’s Day National
Monday 2 Jan 2017 New Year’s Day
(additional holiday as the public holiday falls on a weekend)
National

4. Can I Force My Employees to Work a Public Holiday?

Many industries require employees to work public holidays. For example, retail workers for the boxing day sales or caterers for NYEs parties. It is essential you understand your employees’ rights around public holidays and your obligations as an employer.

First, confirm what award or enterprise agreement applies. For example, the General Retail Industry Award will likely cover retail workers, and the Hospitality Industry (General) Award 2010 or Restaurant Industry Award 2010 will likely include caterers and hospitality workers.

Once you have confirmed their status, you should also know the different requirements for full-time, part-time, and casual employees. Under awards, there are penalty rates for working public holidays that you will be required to pay if your employees work these days. Some awards may include flexibility such as using days in lieu or other options instead of payment for the public holiday worked. If your employees are award free, then the process for this may be set out in the relevant employment agreement. For casual employees, they will only be paid the penalty rates if they work that particular day.

5. Can my Employee Refuse to Work a Public Holiday?

From the outset, an employee has the right to be absent from work on a public holiday. However, as an employer, you may request that the employee does work the public holiday. The employee may refuse the request if the request is unreasonable or if the refusal is reasonable.

The factors for determining reasonableness are set out in section 114 of the Fair Work Act 2009 (Cth). For example, these include:

  • The nature of the work and the employee’s status (e.g. full-time, part-time, casual);
  • The personal situation of the employee;
  • How much notice the employee received;
  • Whether you expected your employee to work a public holiday; and
  • Other relevant matters.

6. Can I Terminate an Employee for Refusing to Work?

As an employer, you do not have an automatic right to terminate an employee if they refuse to work a public holiday.

Steven Pietraszek v Transpacific Industries Pty Ltd T/A Transpacific Cleanaway [2011] FWA 3698 addressed this issue. The case considered a situation where an employee did not work Christmas and Boxing Day even though his employer had requested that he do so. The employer then terminated him for not showing up for these days of work.

The Commissioner held that the employer’s request was reasonable but also that the employee’s refusal was reasonable. In reaching its decision, the Commissioner considered the employee’s personal circumstances, such as a family situation and belief that he would not be asked by the employer to work any public holidays. The Commissioner held that there was no valid reason for termination and that the termination was unreasonable under the Fair Work Act 2009 (Cth).

The Commissioner made an important note that the employer did not ask the employee for the reasons that he was refusing to work the public holidays. The Commissioner pointed out that if the employer had asked, the outcome might have been entirely different. You should consider any refusal to work a public holiday in the context of section 114 of the Fair Work Act 2009 (Cth) before taking any disciplinary action or dismissing the employee.

Key Takeaways

When dealing with issues around employees taking annual leave and working public holidays, there are steps you can take to ensure that this time of the year is peaceful!

  • Know your employee’s status: This includes understanding their work status, any applicable awards, enterprise agreements and pay rates. It is important to pay the correct entitlements to avoid having to back pay entitlements or fines from Fair Work Australia.
  • Acknowledge your employee’s rights: Understanding your employees’ rights with having to work public holidays (including refusing requests to work) will make the process smoother and avoid issues later on.
  • Have a well-organised system for counting annual leave days taken and accrued: Many software systems can now manage this process for you automatically.

If you have any questions about your rights and obligations as an employer over the Christmas and New Year Period, get in touch with our employment lawyers on 1300 544 755.

Edith Moss

Next Steps

If you would like further information on any of the topics mentioned in this article, please get in touch using the form on this page.