A Guide to Employee Entitlements Over the Holiday Period

It’s beginning to look at lot like Christmas! For many of us, this means holidays and taking a well-earned break. For others, it’s more about cashing in those public holiday checks and gearing up for the Christmas craze.

Whatever might be the case for you, this blog has you covered. We’ll be discussing requests and directions for annual leave, public holidays and JobKeeper to help both employers and employees navigate the holiday season.

Leave directions during a shut down

It may be the case that an employer wishes to close a business over the Christmas period. Whether an employer can lawfully direct an employee to take annual leave during this shutdown depends on the award or registered agreement.

Most awards contain rules which regulate this, including the Retail Award, which stipulates employers must give their employees 4 weeks’ notice before directing them to take annual leave.

If the applicable award does allow an employer to send employees on annual leave, they can do so even where the employee does not have enough leave accrued. In this case, it will be taken as unpaid leave unless they can negotiate taking annual leave in advance.

Where there are no rules in the award or agreement and arrangement cannot be reached, an employee cannot be forced to take unpaid leave and they will need be paid their normal rate during the shutdown.

Annual Christmas leave requests

It is often the case that employers receive an increased number of Christmas leave requests from their staff over the holiday season. Despite this, s 88(2) of the Fair Work Act 2009 provides that they will need to have a reasonable basis for denying a request.

The following criteria are relevant considerations in determining whether a request is reasonable:

  • the needs of the employee and an employer’s business
  • Customs and practices in the business
  • any agreement made with an employee; and
  • the timing and period of notice given.

Employees will need to ensure they follow any process for requesting Christmas leave set out in either their employment contract, internal policy, modern award or enterprise agreement.

Working public holidays     

Under section 114 of the Fair Work Act 2009, employees are entitled to be absent from work on a public holiday.

Depending on the applicable award, employees may also be entitled to receive penalty rates for working a public holiday.

Despite this, an employer can only request an employee to work a public holiday if it is not unreasonable. This depends on:

  • the type of employment
  • the nature of the workplace
  • the employee’s personal commitments
  • whether the employee  will be entitled to receive penalty rates or other compensation
  • notice given about the additional hours
  • notice given by an employee when refusing a request.

Section 89 of the Fair Work Act 2009 further stipulates that an employee is not taken to be on annual leave on a public holiday. This means that when public holidays fall on when annual leave is being taken, the employee will get extra annual leave. If it falls on their usual workday, they will need to be paid their minimum rate of pay which does not include loadings, overtime or penalty rates.

Depending on the award, some employees will receive additional entitlements.

JobKeeper employees

Employers with employees on JobKeeper will need to pay them whichever is higher between the JobKeeper payment and their usual pay for work performed. This applies to any annual leave they may entitled to.

Those on JobKeeper during a Christmas shutdown will also have their public holiday pay included in calculations for their usual pay if they would normally have worked the public holiday or would have otherwise be entitled to time off without any loss of pay.


It is important both employers and employees are aware of the particular terms of your employment contract, award and enterprise agreement to determine employee entitlements over Christmas/New Year.

If in doubt, it is always best to talk to a trusted legal advisor.

If you need advice in relation to your employee entitlements, contact our experienced employment lawyers at enquiries@butlers.net.au or call (02) 4929 7002.