Don’t get wrapped up in trouble: Employer obligations over the 2025-26 festive period

As the festive season approaches, employers should be aware of their legal obligations in respect of managing working arrangements. This includes considering whether the workplace should be closed over the festive season (often referred to as a ‘shutdown period’), and where the workplace remains open, ensuring employees are paid correctly for the upcoming public holidays.

Further to our previous article on navigating holiday shutdowns and leave entitlements (see here), please see below an overview of the key employment law considerations.

Can employers require an employee to use their leave entitlements over the shut down?

Employers are only able to direct award/ agreement covered employees to use their annual leave during a shutdown period where the applicable industry award or enterprise agreement specifically allows for it. Where the applicable award or enterprise agreement does not specify any requirements regarding shutdowns, then employers cannot direct employees to use their annual leave during that period, unless the employee agrees to do so.

For award/ agreement free employees, employers can direct employees to use their annual leave during a shutdown, however, only where that direction is reasonable under the National Employment Standards.

If an employee does not have enough leave to cover the shutdown period, the relevant award/ enterprise agreement should be considered, noting that generally an employer can only require an employee to take annual leave in advance or take unpaid leave with their agreement.

Can I require my employees work on a public holiday?

Under the NES, an employee is entitled to be absent from work on a public holiday, unless their employer has made a reasonable request for the employee to work on that public holiday.

Employers may reasonably request that employees work on a particular public holiday, and in doing so must give employees a genuine opportunity to respond. However, employees may refuse that request on reasonable grounds (for example, due to their personal circumstances/ carer responsibilities etc).

What can go wrong?

In a recent decision, the Federal Court fined BHP’s in-house labour hire company $15,000 and ordered compensation be paid to employees who were unreasonably required to work 12.5 hour shifts across Christmas and Boxing Day.

Employees’ names were drawn out of a hat, and those who were selected had to work. This included a single mother, who had to leave two young daughters at home and pay for a babysitter on Christmas Day. The Full Court found that BHP did not make a request within the “ordinary meaning” of the word. This means that the employee has “a choice as to whether he or she will agree or refuse to work on the public holiday”.

Ultimately, each of the employees were compensated between $800 and $2400 for BHP’s actions. The case demonstrates that a ‘request’ is just that – employers cannot require employees to work on a public holiday without reasonable grounds.

What payments need to be made on a public holiday?

Where a workplace remains open and does not shutdown, employees who perform work on a public holiday and are covered by an enterprise agreement or award may be entitled to penalty rates.

Where a workplace is closed, then permanent employees are entitled to be paid their base rate of pay for the ordinary hours they would have worked on that day, had it not been a public holiday. Casual employees are not entitled to any payment for a public holiday they do not work.

Which public holidays should I be aware of?

To confirm the upcoming public holidays in your state or territory, please see the table below.

If your business or organisation requires assistance with navigating the requirements of shutdowns, please contact HR Legal’s experienced team today.