Do I have to work on Christmas? Or use up leave if work shuts for the holidays?

Whether you’re an employee counting down the days until your break, or an employer trying to keep a business open over Christmas – what are the rules about working these holidays?

And if your workplace shuts over the holiday period, can you or your staff be made to use up leave?

Here’s what the law says.

Do I have to work on Christmas? Can I say no?

Your boss must ask you.

If you’re an employee, you have a legal entitlement not to work on a public holiday. If your boss asks you to work, you can say no if you have a reasonable reason to refuse the request.

The employer’s request for you to work also has to be reasonable – for instance, if they’re running an emergency room, which needs to be open 24/7. But the employee’s personal circumstances are relevant too.

There was an important court ruling about this earlier this month.

Mining giant BHP was ordered to pay 85 miners $A84,000 in compensation, after it made them work Christmas and Boxing Day in 2019 without giving them a chance to say no.

Among the miners forced to work was a single mother without family help, who said she had to go to “demeaning and heartbreaking” lengths to find a babysitter for her two daughters, 11 and 15, on Christmas Day.

What that court case made clear is that rostering people on, then expecting or even suggesting that’s the end of the matter, does not meet the requirements of the Fair Work Act.

If you’re the employer, you need to have a conversation about it, or produce a draft roster, with employees given the opportunity to indicate if they would not like to work. You can’t just roster and forget it.

I’m single and don’t have kids. Can I still say no to work?

If you’re being asked to work, the same rules apply to you as to parents or others.

Is your employer’s request reasonable? Are you in the kind of industry that needs to operate on a public holiday?

What are your personal circumstances and responsibilities? Is there additional compensation beyond your normal pay, such as penalty rates?

It may be easier for someone with kids to argue they have caring responsibilities on a day like Christmas, when alternative childcare is mostly closed.

But if the children can be safely cared for by someone else, it doesn’t necessarily elevate a parent above a single person – who may have other responsibilities, such as caring for parents, or personal circumstances including their own mental wellbeing.

So the right to refuse to work on a public holiday on reasonable grounds doesn’t just belong to parents; it belongs to everybody covered by the Fair Work Act.

Which public holidays do the rules apply to?

The Fair Work Act lists the public holidays these rules apply to:

• January 1 (New Year’s Day)
• January 26 (Australia Day)
• Good Friday
• Easter Monday
• April 25 (Anzac Day)
• the King’s birthday (this date depends on the state or territory you’re in)
• December 25 (Christmas Day)
• December 26 (Boxing Day)

Plus any other public holiday declared in your state or territory, unless it’s excluded by regulations.

Is this true for everyone in Australia?

The majority of Australians are covered under the Fair Work Act, with some exceptions, including state public servants outside of Victoria, some council workers and certain private sector employees in Western Australia.

If my work shuts over Christmas, can I (or my staff) be made to use up leave?

Generally speaking, yes. But find out if you’re covered by an award or enterprise agreement, as it’s usually spelled out clearly there.

But if you don’t have a modern award or enterprise agreement, the Fair Work Act notes that one of the times of year it may be reasonable to make people take leave is when:

the employer’s enterprise is being shut down for a period (for example, between Christmas and New Year).

If you don’t have enough paid leave to cover a shutdown period, you can come to an agreement with your employer for other options, such as:

• using accrued time off
• annual leave in advance, or
• leave without pay.

Is there a minimum notice period to be asked to work or take leave?

There’s no set time period under the National Employment Standards, though there may be in your award or agreement.

But if the request to work or take leave is very late, it becomes less “reasonable” than early notice. That’s taken into account under the Fair Work Act too.

So if you’re an employer, the more advance notice you give people when asking them to work over these holidays, or about taking leave, the more chance you have of it being seen as a reasonable request under the law.