Rules and entitlements during the end-of-year holiday season

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Published 4 November 2022 | Updated 10 November 2022

Free webinar on rights and obligations for working and employing during the holidays

We’re holding a free webinar to help employers and employees understand their workplace rights and obligations during this holiday season.

The webinar will be held on 8 December 2022 at 10 am and at 6 pm AEDT.

For more information, and to register, go to Webinars.

As the end-of-year holiday season approaches, employers and employees need to start planning how their businesses will operate during this time.

Many businesses get busier and may need their employees to work more hours and on public holidays. Other businesses may shut down (also known as a ‘close down’) or reduce their staff numbers.

Find out about the rules and entitlements during the end-of-year holiday season that may affect you.

Requiring an employee to take annual leave during a shutdown

An employer can direct their employees to take annual leave while the business has shut down if their award or registered agreement allows it.

Most awards have rules about how and when an employer can direct their employees to take leave. An award may require an employer to give their employees a minimum amount of notice to take annual leave. An award may also provide that a business can only close during certain periods.

Each award and agreement is different, so employers should check theirs to make sure before they give employees any directions to use annual leave.

Example: Minimum amount of notice of a shut down

Joe is a full-time employee at a business that manufactures food products, including cheeses and dips.

Joe’s manager knows that December is a busy time for the business, so they schedule a shut down for the first 2 weeks in January.

The business is covered by the Food, Beverage and Tobacco Manufacturing Award. Joe’s manager check the award and see that they need to give their employees at least 4 weeks notice of the shut down.

In the final week of November, Joe’s managers notify Joe and the rest of the employees that the business will close from 2 January to 16 January and they will need to take annual leave. This is more than the 4 weeks notice required under the award.

If no award or agreement applies, employers can only direct the employee to take annual leave if the direction is reasonable.

For more information, see:

Employees without enough annual leave to cover a shutdown

If the award or agreement allows it, employees can agree with their employer to take:

  • annual leave before they’ve accrued it
  • unpaid leave.

Awards and agreements without shutdown rules

Employers can’t direct their employees to take annual leave during a shut down if their award or agreement doesn’t have rules allowing the direction.

However, employees can agree with their employer to take annual leave (including before they’ve accrued it) or unpaid leave during the shut down.

Unless it’s allowed under an award or agreement, employers can't require their employees to take annual leave before they’ve accrued it or to take unpaid leave.

Find out more about the Rules for taking annual leave.

For more information, see Not working on public holidays.

Working during a shutdown

If an employee continues to work when a business shuts down, they should receive their normal pay.

For any public holidays during the shut down, employees should still be given the day off without loss of pay or they should be paid the public holiday rates as per their award or agreement.

Working overtime or on a public holiday

Employers can ask their employees to work overtime or work on public holidays if the request is reasonable. An employee can refuse a request to work if they have reasonable grounds.

Whether this request is reasonable depends on several things, including:

  • the needs of the business
  • the role and responsibility of the employee
  • the employee’s personal commitments, like family or caring arrangements
  • how much notice the employee gets about the extra hours
  • what the employee’s contract says.

When requesting that an employee work on a public holiday, employers need to consider all relevant circumstances.

Example: Reasonable request to work on a public holiday

Sam is a store manager for a business that sells personal electronics such as TVs and computers.

As the business is in the retail industry, Sam’s employer wants to open on Boxing Day to run a big promotion. Sam’s employer has asked her to work on Boxing Day.

Sam considers the request to be reasonable and agrees to work on Boxing Day. Sam understands that working on a public holiday is common for a manager in the retail industry.

If an employee works overtime or on a public holiday, their award or registered agreement may give them additional entitlements such as:

  • penalty rates
  • a different day off
  • extra annual leave.

For more information, see:

Paying employees who don’t work on a public holiday

When a public holiday falls on a full-time or part-time employee’s usual work day, employers need to pay them their minimum pay rate for their usual hours. This applies even when an employee is on paid annual leave during a shut down.

The minimum pay rate doesn’t include any loadings, overtime or penalty rates that they usually get for working that day. An employee’s roster can't be changed to deliberately avoid this payment.

For more information, see Not working on public holidays.

Resources for young workers and students

The holiday season often sees young workers and students in the workforce for the first time.

If you’re a young worker or student, you may be wondering about minimum working ages, how to prepare for your first day and what your pay and entitlements should be. Check out our Young workers and students section.

If you’re an employer, read our Employing young workers best practice guide.

More information

For a list of the public holidays over Christmas and New Year in your state or territory, see Public holidays.

If you’re covered by an agreement, you can find it on the Fair Work Commission’s website.