Many businesses, particularly those in the retail and travel sectors, experience an increase in trade over the Christmas holiday period. However, for many other businesses, work slows down, and it is not uncommon for employers to shut down during this period. Questions are often asked about taking leave during a Christmas shutdown.
Taking annual leave
Most employees are covered by an Award or an Enterprise Agreement, which sets out annual leave entitlements. As a general rule, only full-time and part-time employees are entitled to paid annual leave.
The Award or Enterprise Agreement may specify the situations in which an employer can require leave to be taken. For example, it might specifically say that an employer can require employees to take annual leave during a Christmas shutdown. Alternatively, it might be more general, and say that annual leave is to be taken subject to the reasonable needs of the employer’s business. Employers must give the required notice to employees about an upcoming shutdown (usually between four weeks and three months), even if the employer regularly has a shutdown at a particular time of the year.
If the Award or Enterprise Agreement does not say that an employer can require employees to take leave, then the employer has no power to do so. In that case, the usual rule about annual leave applies: it is to be taken at a time agreed by the employer and employee, and the employer must not unreasonably refuse an employee's request.
What if I don’t have enough paid annual leave?
If you don’t have enough annual leave to cover the full period of the shutdown, then the usual position is that your employer must allow you to take unpaid leave. However, depending on the Award and Enterprise Agreement which covers your employment, you may be able to take annual leave in advance as an alternative.
What about public holidays?
Annual leave is not deducted when you are away from work on a public holiday. If the public holiday falls on a day which you would otherwise be working, then you should be paid for that day; if not, then you are not entitled to be paid.
Can I save my annual leave for later?
If you wish to save up your leave to use at another time of the year (for example, for an extended holiday), you should talk to your employer about your plans at an early stage. You may be able to reach agreement about how your leave is taken. For example, your employer may allow you to work during the Christmas shutdown, if there is a “skeleton staff” in the office. If your Award or Enterprise Agreement allows for it, you may be able to "purchase" extra leave (usually limited to Government employees). You might also ask if you can take unpaid leave during the Christmas shutdown in order to save your paid leave for later.
In reaching agreements about leave, as with any other employment issue, it is important to be clear about what you want, to deal respectfully with your employer, and to keep an open mind. Always consider whether your employer might have very good reasons for its decision about your leave. Remember, employment is a two-way relationship that sometimes requires give and take. Be willing to compromise and find solutions that you can live with.
If you think your employer is being unreasonable about your request for leave, or if you need any other advice about your employment rights, contact us on 8125 7000 to speak to one of our employment law specialists.