With Christmas fast approaching and after two years of higher than usual sick leave and annual leave brought on by the pandemic, it is important for both employers and employees to revisit their respective obligations and rights as the Christmas holiday period approaches.

Let’s explore what you need to know regarding annual leave during the Christmas period.

Can businesses refuse annual leave requests?

Annual leave is one of the workplace rights contained in the National Employment Standards (“NES”) which generally applies to all employees under the national workplace relations system.

The Fair Work Act 2009 (Cth) (“the Act”) provides that paid annual leave may be taken for a period agreed between an employee and his or her employer and that the employer must not unreasonably refuse to agree to a request by the employee to take paid annual leave. As the legislation does not define what ‘unreasonably’ is, this may raise concerns for businesses, particularly in the hospitality and retail industries, where the Christmas period is especially busy.

In the decision of Australian Workers’ Union, The v Manildra Stockfeeds Manufacturing Pty Ltd & NSW Sugar Milling Co Op Ltd t/a Sunshine Sugar [2018] FWC 4833, an employee requested to take annual leave but had their request denied on the basis that it was during the principal operational months and that an ‘all staff on deck’ policy was essential to operations.  In that case, what determines the ‘reasonability’ of an employee’s request is largely the basis of the business’ operational requirements. The Fair Work Commission found against the employee which highlights the importance for businesses to have a clear and accessible company policy regarding annual leave. Considerations that would further determine whether a request is reasonable include the period of notice given and the proposed leave period.

Mandated annual leave and forced shutdowns:

While some businesses may refuse leave during the Christmas break, many businesses request employees take leave. As many businesses shutdown or reduce operations completely over the Christmas period, employees may be forced to take leave. Although employers are entitled to force employees to take leave, the request must be reasonable. In determining what constitutes a ‘reasonable request’, the Fair Work Commission considers factors such as the needs of the business, the needs of the employee, and the period of notice given to the employee.

In addition, most employees’ rights are set-out in a modern award, which differ considerably by industry.

For example the Clerks – Private Sector Award 2010 outlines that an employee can be directed to take leave but must have 4 weeks’ notice, whereas the Plumbing and Fire Sprinklers Award requires 8 weeks’ notice.

In many cases, employers are generally able to mandate annual leave, provided the request is reasonable.

If this article has raised any concerns for you or your organisation please do not hesitate to contact WGC Lawyers’ Employment Lawyer, John Hayward, on (07) 4046 1124, for advice specific to your circumstances.

This article was prepared with the assistance of Rhys Mapstone, law student.

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John Hayward
WGC Lawyers