With the end of 2018 fast approaching many businesses make the decision to shut down over the holiday period. A forced Christmas shut down can sometimes be contentious as it can place a financial burden on employees and their families. This is especially so if they don’t have adequate leave banked. So can an employer force an employee to take their annual leave over a Christmas shut down?
An employee can be directed to take annual leave during a shut down if their employment award or registered agreement allows it. Most awards have rules about when an employer can direct an employee to take leave. Some will stipulate notice periods which must be provided to employees. If the notice period isn’t adhered to then the employee may have the right to be paid their ordinary pay rate during the shut down.
If an award or agreement doesn’t have rules about taking annual leave during a shut down, an employer can’t force an employee to take leave. This doesn’t prevent an employer and employee mutually agreeing to the leave.
Some awards or agreements will require an employee to take unpaid leave or annual leave in advance of accrual if they don’t have enough annual leave banked up to cover the shut down.
If an employee isn’t covered by an award or agreement, the employer can direct them to take annual leave if the direction is reasonable.
If a public holiday falls during an employee’s annual leave, they need to be paid for the public holiday, not the annual leave. This means that an employee should be paid the base pay rate for that day and it shouldn’t affect the annual leave balance.
You can check if your award allows an employer to direct an employee to take annual leave by using this tool on the Fair Work website. If you need further advice, our team of solicitors can assist you.
From the team at Dore & Webb Lawyers, we wish you a very Merry Christmas and a safe and Happy New Year.
This post is general information only. It is not a substitute for legal advice from a lawyer. If you have a legal issue, you should always contact your lawyer to obtain advice that is relevant to your circumstances.
