Can they make me take leave over Christmas if we’re closed? Understanding the rules

Many early childhood education and care (ECEC) services, and the support office functions which assist them, look forward to the end of the year, a time when for some “Christmas Closure” is a reality – but what are the legalities? Can an employer force their team members to use their annual leave when a service or business is closed? 

Sam Nottle, a Senior Associate at employment law firm JewellHancock recently prepared a piece for job searching website SEEK, an extract of which (contextualised to ECEC) appears below. Find the original here. 

If our service is shut, do I have to use my annual leave? 

For people employed under an award, or an enterprise agreement, Ms Nottle said, employers can direct an employee to take annual leave during a shutdown period.

“Best practice would be to check the award or enterprise agreement, as it might include a required notice period (e.g. four weeks) to be given to the employee,” she added.

For people who are not employed under an award or an enterprise agreement may require an employee to take a period of paid annual leave in circumstances that are reasonable. 

“A requirement to take annual leave would be reasonable if the employer’s enterprise is being shut down for a period, say between Christmas and New Year,” she continued. “It would be best practice for an employer to provide notice to the employee of at least a month.”

What if I used all my leave already? Do I still get paid?

If a service is closed and an employee does not have enough annual leave accrued, “it may be the case that the modern award or enterprise agreement provides for a direction to take unpaid leave,” Ms Nottle said, adding that she would advise employers to refer to the relevant provisions.

If the award or enterprise agreement doesn’t address this issue or if the person is an award or enterprise agreement-free employee and the employment contract contains nothing on the issue, it’s unlikely that they can be forced to take unpaid leave for the period. 

“The employee would need to be paid their ordinary rate of pay during the shutdown period,” Ms Nottle said.

Do I have to work on a public holiday? What about Christmas Eve? 

Employers are allowed to request an employee to work on a public holiday, but only if that request is reasonable. 

In an ECEC context, the vast majority of services are closed on public holidays, however there may be exceptions, such as services which operate within hospital environments, where workers are also required to be present at all times. 

An employee can refuse such a request if the request from the employer is not reasonable or the refusal from the employee is reasonable. Section 114 (4) of the Fair Work Act determines what’s reasonable.

“The criteria are broad and in most circumstances, it would be reasonable for an employee to refuse to work the public holiday,” Ms Nottle said. “For example, a refusal to work on a public holiday by a full-time employee is likely to be a reasonable refusal, taking into account all the individual circumstances.”

It’s worth noting that a full-time employee must still receive their usual salary for the public holiday even if they reasonably refuse to work that day. “Casual employees are not entitled to be paid if they reasonably refuse work for that day,” she added.

For more information about staffing and shutting down over Christmas and the New Year, visit Fair Work. For the original coverage of this story please see here. 

Information provided in this article is general only, does not constitute legal advice and should not be relied upon as such. Original publisher SEEK provides no warranty as to its accuracy, reliability or completeness. Before taking any course of action related to this article you should make your own inquiries and seek independent advice (including the appropriate legal advice) on whether it is suitable for your circumstances.