Christmas Close Down Basics – What do I need to know?

With the calendar ticking over to December comes the inevitable question of the Christmas close down. But what are the rights of an employer to require employees to take leave over a Christmas close down period?  Like most industrial relations issues, the answer is, “it depends”.

Award and Enterprise Agreement Free Employees

If your employee is not covered by a Modern Award or Enterprise Agreement, section 94(5)(b) of the Fair Work Act 2009 (Cth) applies. It states that an employer may compel an award or agreement free employee to take a period of paid annual leave provided the requirement is “reasonable”. Fortunately, the Act includes examples of when the requirement to take a period of paid annual leave may be reasonable and they include a situation where the business is being shut down over the Christmas to New Year period. Providing employees with suitable notice (e.g. 4 weeks or more) would also be reasonable.

Employees Covered by a Modern Award

If your employee is covered by a Modern Award, Christmas close downs will be addressed in some but not all instances.

The Award Does Have a Christmas Close Down Provision

For instance, the Children’s Services Award 2010 contains a provision which allows a business to compel employees take leave over the Christmas period, providing at least 4 weeks’ notice is given (clause 24.4). It also gives the employer the power to compel unpaid leave be taken in the case of an employee without sufficient accrued paid annual leave to cover the Christmas close down period.

Similarly, the Health Professionals and Support Services Award 2010 includes a provision (clause 31.4) allowing an employer to temporarily close a dental or medical practice and direct an employee to take paid annual leave during all or part of the period.  The direction must be reasonable.  The clause says that if an employee does not have sufficient accrued leave to cover the period, they may be required to take annual leave in advance where such requirement is reasonable.

The Award Does Not Have a Christmas Close Down Provision

If the award does not have a provision allowing the employer to direct them to take annual leave during a close down period, then all an employer can do is request that the employee take the time off as paid annual leave.  However, the employer has no power to require the employee to do so. Most employees are unlikely to want to work over the holiday period, but these issues nevertheless arise fairly frequently within businesses around this time of year.

ES Can Help

Employer Services can help you to understand the correct procedures for a Christmas close down and can advise on any annual leave questions which arise as a consequence.  Call us, email us, or try live chat with your questions.