Can you make staff take annual leave at Christmas?

The National Employment Standards (NES)* permit an employer to direct an employee to take paid annual leave if the requirement is reasonable. Requiring staff to use some of their accrued annual leave for a shutdown between Christmas and New Year would be considered reasonable in most cases. But like everything, there are always exceptions.

And then there is the question of what to do with employees who do not have any accrued leave entitlements. Can you make them take unpaid leave during the shutdown period?

The answers to these conundrums (and more) lie in the terms of the Modern Award, Enterprise Agreement or Employment Contract the staff are employed under.

Staff covered by a Modern Award or Enterprise Agreement

Many modern awards and registered agreements have provisions regarding Christmas close-downs. These clauses often have very specific requirements, and employers who fail to comply can be penalised by Fair Work.

To avoid this risk when allocating leave, first check whether the relevant award:

• Stipulates minimum notice requirements for the shutdown. In other words, find out how far out you need to communicate with staff about a Christmas close-down.   Surprisingly this can range from 4 weeks to 3 months in some instances;
• Permits an employer to make an employee take leave without pay if they do not have sufficient leave accrued;
• Provides for paid annual leave ‘in advance’ as an option.

Award-Free Staff

As there are no specific provisions with regards to annual close-downs within the National Employment Standards (NES), employers should look to the terms of the Employment Contract when staff are not covered by an award.

If the employment contract has not addressed annual close-downs, it would still be advisable for an employer to:

• Work within the guidelines of any HR policies relating to leave;
• Give award-free staff reasonable notice of the need to take leave at Christmas;
• Consider offering award-free staff leave ‘in-advance’ where they do not have sufficient accrued entitlements;
• Be mindful of what has been accepted practice in the past.

* The National Employment Standards (NES) are 10 minimum employment entitlements that have to be provided to all employees