Navigating public holidays

by 15 Dec 2011

The upcoming spate of public holidays may mean turkey, presents and fireworks for some - but for many Australian organisations it will be business as usual.

According to Fair Work Ombudsman (FWO), employers must consider the following factors when asking an employee to work on a public holiday:

  • The nature of your business (including its operational requirements)

  • The nature of the work performed by your employees

  • Your employees’ personal circumstances, including their family responsibilities

  • Whether your employees could reasonably expect that you might request them to work on the public holiday (for example, your business is open each year on the same public holiday)

  • Whether your employees are entitled to receive overtime payments, penalty rates or other compensation for work on the public holiday

  • Uour employees’ type of employment (for example, whether they are full-time, part-time, casual or a shift worker)

  • The amount of notice you have given your employees in advance about working on the public holiday

  • Any other relevant factors

The employer cannot rely on one single factor, but needs to consider all of the relevant circumstances.

An employee may refuse a request to work if they have reasonable grounds. Employers may wish to speak to their employer association or seek legal advice if an issue arises.

On the other side of the issue, many organisations also decide to shut down over the Christmas period, such as between Christmas and New Year.

When considering a shutdown, employers much check the terms in their employee’s awards, enterprise agreement or other industrial agreement that allows them to require employees to take paid annual leave during a shutdown period. An employer may also require an employee who is not covered by an award or agreement to take a period of paid annual leave.

What’s considered a ‘reasonable requirement’ to take annual leave?

The following factors are set out by FWO as relevant when determining if a requirement from an employer to take leave is ‘reasonable’:

  • the needs of both the employee and the employer's business 

  • any agreed arrangement with the employee 

  • the custom and practice in the business 

  • the timing of the requirement or direction to take leave 

  • the reasonableness of the period of notice given to the employee to take leave.

While each employer needs to look carefully at their own circumstances, it is likely that a requirement to take annual leave during a shut down over Christmas and New Year can be considered ‘reasonable’.

What if an employee doesn’t have enough annual leave to cover the shutdown?

This can sometimes happen if someone has just started with the business and hasn’t had time to accrue all the annual leave necessary. For instance, a person who started on 10 December will not have accrued a week’s annual leave by 24 December.

There are a few possible outcomes:

  1. The employer can credit the employee with annual leave in advance. The employee could then be required to take that advanced leave during the shutdown. This is subject to the reasonableness factors set out above.

  2. The employee could agree to take unpaid leave.

  3. If the employer decides not to advance annual leave, and the employee doesn’t agree to take unpaid leave, we consider that the employee is entitled to be paid during this period. This pay must be in accord with the terms of their award, enterprise agreement and their contract of employment.



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