Planning ahead for the Christmas-New Year period

For many workplaces, the Christmas-New Year period brings a combination of public holidays, annual leave requests and changes to normal operating arrangements. While some businesses choose to temporarily close, others remain open and require employees to work throughout the holiday season.

Whether a workplace is shutting down or remaining open, planning ahead can help employers and employees avoid misunderstandings and ensure the holiday period runs smoothly during what is often one of the busiest times of the year.

If a business plans to shut down

Many businesses temporarily shut down all or part of their operations over the Christmas-New Year period and require employees to take annual leave during the closure.

The rules governing shutdowns depend on whether employees are covered by the National Employment Standards (NES), a modern award or an enterprise agreement.

Award-free employees and the NES

Employees who are not covered by a modern award or enterprise agreement are covered by the NES rules regarding directions to take annual leave.

Under the NES, an employer may require an employee to take annual leave if the requirement is reasonable. The Fair Work Act specifically recognises that requiring annual leave during a temporary business shutdown, such as over the Christmas-New Year period, may be reasonable.

Modern awards

Most modern awards contain provisions dealing with temporary shutdowns.

Although the wording varies between awards, common requirements include:

• providing employees with written notice of the shutdown
• ensuring employees have sufficient annual leave accrued to cover the shutdown period
• complying with any award-specific requirements, and
• ensuring the direction is reasonable.

Many awards require at least 28 days' written notice of a shutdown, although some awards require a longer notice period. It is therefore important to check the specific award that applies before announcing a shutdown.

Enterprise agreements

Enterprise agreements often contain their own shutdown provisions, notice requirements and leave arrangements.

As these provisions can differ significantly from both the NES and modern awards, employers should carefully review the applicable agreement before implementing a shutdown.

What if an employee does not have enough annual leave?

A common issue during Christmas shutdowns is that an employee may not have enough accrued annual leave to cover the entire shutdown period.

Possible options include:

• annual leave taken in advance by agreement
• unpaid leave by agreement
• allowing the employee to work during the shutdown period
• the use of rostered days off, where permitted, or
• the use of accrued time off in lieu, where available and permitted.

Any agreement regarding leave arrangements should be documented in writing.

If a business remains open

Many businesses continue operating throughout the Christmas-New Year period, particularly in retail, hospitality, healthcare, transport and other essential services.

In these workplaces, planning ahead often involves managing public holiday staffing requirements and annual leave requests.

Can employees be required to work on a public holiday?

Under the Fair Work Act, an employer may request an employee to work on a public holiday if the request is reasonable.

An employee may refuse the request if the refusal is reasonable.

Factors that may be relevant when assessing whether a request or refusal is reasonable include:

• the nature of the workplace and the employee's role
• the employee's personal circumstances, including family responsibilities
• the amount of notice provided
• whether the employee will receive penalty rates or other compensation, and
• any operational requirements of the business.

Check applicable entitlements

Employees who work on public holidays may be entitled to penalty rates, overtime payments, substitute days off or other entitlements depending on the applicable award or enterprise agreement.

Employers and employees should therefore check the relevant industrial instrument before the holiday period begins to ensure that rostering and payroll arrangements are correct.

Managing annual leave requests

The Christmas-New Year period is often one of the most popular times of the year for employees to take annual leave.

Where multiple employees request leave at the same time, employers may need to balance business requirements with employee preferences. Clear communication about staffing needs, shutdown arrangements and leave approval processes can help reduce misunderstandings.

Employers should also ensure that decisions regarding leave requests are made consistently and in accordance with any applicable award, enterprise agreement or workplace policy.

Key takeaways

• Whether a workplace is closing down or remaining open, it is important to plan ahead for annual leave, public holidays and staffing arrangements.
• The rights and obligations of employers and employees during the Christmas-New Year period will often depend on the NES, any applicable modern award and any enterprise agreement.
• Raising questions and discussing arrangements early can help avoid misunderstandings and ensure the holiday period runs more smoothly for everyone.
• The Fair Work Ombudsman’s website contains information about rules and entitlements during the end-of-year holiday season.