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5 things to remember about working (or not working) over Christmas

Emily Shoemark

09 Dec 2020

Topics

  • Business services
  • Employment Law

With the Christmas period upon us, we always see questions about what employers can and can’t  do in relation to their staff over Christmas. For some businesses this is a slow period where the business shuts down, but for others is the busiest time of the year.

Here are our employment law team’s 5 top things for employers to remember leading up to the   festive season:

1. Can I ask staff to take annual leave over the shutdown period?

Don’t assume you can just ask employees to use their leave during Christmas shut down. An employer can direct staff to take annual leave over a Christmas shutdown period only if:

  • The applicable award or enterprise agreement allows a direction to take leave. Often there is a notice period that the employers have to give, so it is important to check carefully the terms of your award or agreement
  • There is an employment contract in place which either allows the employer to direct staff to take leave, or mandates that all staff must use their annual leave during any Christmas shut down period.

2. What if an employee does not have enough leave to cover the shutdown period?

An employer and employee can always reach agreement how an employee is paid if a lawful direction has been made to take annual leave over the Christmas shutdown, but does not have enough leave accrued. The employee may be able to take leave before it has accrued (so effectively owe the employer annual leave), take leave at half pay or take leave without pay.

3. Do staff get paid extra if they work over Christmas and New Years?

Except for the public holidays, if a workplace remains open then the pay rate for staff will remain the same as any other time of the year. The employer should check where the public holidays fall (as these change from year to year), and ensure penalty rates are paid if work is done on one of those days.

4. What if all my staff want to take leave for Christmas, but the business stays open?

Essentially this is an issue about managing expectations and having in place the right policies to avoid clashes.

The first thing to check is the applicable award, as different industries will have different conditions in this regard. Secondly, the type of employment will be relevant – eg full-time, part-time or casual. Casual employees are not entitled to leave, but also are not usually committed to work set hours or certain days of the week.

If you have an employment contract in place, it is a good idea for a term of the contract to state that annual leave can only be taken with agreement of the employer. You may also consider putting in place policies to cover what happens when a number of employees want to take leave at the same time – for example, a first in best dressed policy. If it is expected that staff will be expected to work at certain times, including over Christmas, then as much notice as possible should be given.

5. Can I direct staff to work on Christmas day?

As a general rule, under the National Employment Standards employees cannot be forced to work on Public Holidays. An employer can give an employee a direction to attend work, but whether that is a lawful direction will depend on whether the direction was reasonable in the circumstances.  An employee can refuse the request, but only if they have reasonable grounds to do so.

Whether a request to work on Christmas Day is reasonable will depend on:

  • the employee’s personal circumstances,
  • whether the employee will get more pay (eg under an Award penalty rates are likely to be payable)
  • the needs of the workplace and the type of work the employee does
  • whether the employee’s salary includes work on a public holiday
  • whether the employee is full-time, part-time, casual or a shift-worker
  • how much notice the employee was given about working
  • the amount of notice the employee gives that they refuse to work.

How can we help?

If you have any questions about managing your staff over the Christmas period, whether your business ramps up or shuts down, please do not hesitate to contact our Business Services team on 02 6285 8000 or by email.