Australia: 7 Deadly Sins of Employers – Managing Leave Over the Christmas Period


Christmas is just around the corner which hopefully means that you are getting a much deserved break before 2013 sets in. But what about managing your employees' leave over the Christmas period? This update sets out the 7 deadly sins of employers over the Christmas period when making decisions in relation to leave.

Sin 1 – Failing to give employees the required notice of an employer's intention to shut down over the Christmas period

Employers should be aware that a number of modern awards and enterprise agreements contain strict notice and procedural requirements that employers must comply with if they wish to require an employee to take paid annual leave during a period of shut down. For example, employees covered by the Clerks – Private Sector Award 2010, Commercial Sales Award 2010, Hospitality Industry (General) Award 2010 and the Banking, Finance and Insurance Award 2010 must be given at least four weeks notice of an annual shut down.

If an employer fails to provide its employees with notice of its intention to shut down and the requirement that they take annual leave for the period, an employer may be penalised for failing to comply with procedural requirements and may be fined up to $33,000 per breach.

Employers should check the provisions of the specific modern award(s) or industrial instruments that apply as the notice periods differ.

If no modern award or enterprise agreement applies to an employee, the Fair Work Act 2009 (Cth) (Fair Work Act) allows an employer to require an employee to take a period of annual leave, but only if the requirement is reasonable. The Fair Work Act does not specify what is reasonable, however it does give an example that the employer shutting down its business between Christmas and New Year may be reasonable. The direction to take annual leave must be reasonable, having regard to the reasonableness of the period of notice given to take the leave, the needs of both the employee and the employer's business, the custom and practice in the business and any agreed arrangement with the employee.

Sin 2 – Not providing notice in writing of the shutdown period and requirement to take paid annual leave

Employers are advised to provide employees with written notice of the shutdown period and the requirement for employees to take paid annual leave in order to evidence compliance with the Fair Work Act. This can be done, for example, by way of a notice to employees with their payslip and/or an organisation wide email to employees.

Sin 3 – Terminating an employee's employment with notice inclusive of approved leave over the Christmas period

If an employer dismisses an employee from employment and the period of notice runs over the Christmas period where an employee has approved leave, employers should be mindful that the notice period cannot run concurrently with approved leave because to do so is to deprive the employee of their right to paid leave.

The recent decision of Wanders v Richards Mining Services Pty Ltd [2012] SAIRC 46, confirmed that an employer cannot avoid liability for approved leave that coincides with a notice period. In that case, the employer dismissed an employee giving him four weeks notice in December of last year. The notice period coincided with the employer's forced shutdown period and the Christmas/New Year public holidays. The Court found that the employee had been deprived of his annual leave entitlement as it had been incorporated into the notice period.

Sin 4 – Unreasonably requiring an employee to work on a public holiday

The Fair Work Act provides that an employer may request an employee to work on a public holiday if the request is reasonable (s 114(2)). The employee may refuse a request if it is unreasonable or their refusal to work is reasonable (s 114(3)).

Section 114(4) sets out a number of factors that are to be taken into account in determining whether a request or refusal of a request is reasonable including:

  • The nature of the employer's workplace or enterprise and the nature of the work performed by the employee.
  • The employee's personal circumstances (including any family responsibilities).
  • Whether the employee could reasonably expect that the employer might request work on a public holiday.
  • Whether the employee is entitled to receive overtime, penalty rates or other forms of compensation for, or a level of remuneration that reflects an expectation of, work on the public holiday.
  • The type of employment of the employee (ie full-time, part-time, casual or shiftwork).
  • The amount of notice in advance of the public holiday given by the employer when making the request.
  • In relation to the refusal of a request, the amount of notice in advance of the public holiday given by the employee in refusing the request.

Sin 5 – Inappropriately disciplining an employee for refusing to work on a public holiday

If an employer takes disciplinary action against an employee for refusing to work on a public holiday, there is a risk that an employee may commence proceedings against the employer. If an employee is dismissed on the basis of that refusal, an employee may commence proceedings alleging that the refusal did not constitute a valid reason for dismissal. If some other form of disciplinary action is taken an employee may argue that adverse action has been taken against him or her on the basis that he or she has a workplace right to refuse to work on a public holiday or to refuse to work unreasonable overtime under the Fair Work Act or to make a complaint or inquiry in relation to their employment.

For example, in Brown & Premier Pet [2012] FMCA 1089, the Federal Magistrates Court found that the employer contravened the general protections provisions of the Fair Work Act when it dismissed an employee because he refused to work regular overtime on weekends and public holidays.

In that case, the employer introduced mandatory rostering arrangements that were to apply to all employees at its Brisbane fish room to include routine maintenance work on non-trading days including weekends and public holidays. The employee tried to negotiate time off in lieu if he worked weekends and this was refused by the employer. The employer subsequently terminated the employee's employment.

The Court found that the employee had a workplace right not to work unreasonable overtime under the Fair Work Act's National Employment Standards (NES) and that the employer had not satisfied the onus to show that it did not dismiss the employee for insisting on that right. The Court ordered that the employee be reinstated.

Sin 6 – Underpaying employees for public holidays

The NES provide that employees (not including casuals) are entitled both to a day off work on a public holiday and to payment on their day off (s 114–116). "Public holidays" are defined in s 115 of the Fair Work Act to include Christmas Day, Boxing Day and New Years Day. Under the NES, employees are entitled to the day off; however, their employer may request them to work, so long as the request is reasonable (refer to Sin 4 above).

Under the Fair Work Act, an employee who is absent from work on a public holiday is entitled to be paid for his or her ordinary hours that would have been worked at their base rate of pay, excluding incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates or any other similar separately identifiable amounts. This payment entitlement under the Fair Work Act, does not apply to part-time employees whose hours do not include the day of the week on which the public holiday occurs, or casual employees who are not rostered on to work the public holiday.

An employee who works on a public holiday may be entitled to penalty rates or other compensation set out in an applicable award or enterprise agreement. Employers should ensure that they compensate their employees in accordance with the relevant modern award or enterprise agreement in place.

Sin 7 – Failing to pay leave loading on annual leave entitlements on termination of employment

Sometimes modern awards and enterprise agreements don't specify that annual leave loading must be paid when an employee is paid in lieu of an accrued entitlement to annual leave on termination of employment. However, employers should be aware that the Fair Work Ombudsman's position is that employees must always be paid their annual leave loading (if lawfully required) on termination even if not specified in the award or agreement. This view is taken because of the requirements of the NES which state that on termination employees must be paid what they would have been had they taken the leave.

Employers should be mindful that not all employees are entitled to be paid annual leave loading.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.