Rules and entitlements for the end of year season: public holidays, overtime and more

Rules and entitlements for the end of year season: public holidays, overtime and more

by Freya Lucas

December 17, 2021

With the end of year fast approaching, many early childhood education and care (ECEC) facilities will need employees to be flexible, working more or fewer hours, and some on public holidays. 

 

For other businesses, the end of year means a closure period or a reduction in staff numbers. To clarify the rules, The Sector has compiled the information below based on guidance from the Fair Work Ombudsman

 

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 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.

 

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.

 

There is more guidance in the following links: Working on public holidays, When overtime applies.

 

Paying employees who don’t work on a public holiday

 

When a public holiday falls on a full-time or part-time employees usual workday, 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 shutdown.

 

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.

 

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 shutdown, 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.

 

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. For example, some awards require an employer to give their employees four weeks’ notice to take annual leave.

 

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 shutdown if their award or agreement doesn’t have rules allowing the direction.

 

However, employees can agree with their employer to take annual leave (including in advance of their accrual) or unpaid leave during the shutdown.

 

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.

 

More information

 

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

 

For information relating to coronavirus, go to Coronavirus and Australian workplace laws.

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