Christmas can be a stressful and costly time of year for employers. Managing rosters, minimizing public holiday penalties, and ensuring you have sufficient staffing to meet service requirement can be a lot to consider. It can be easy to get caught out with unexpected costs over the Christmas and New Year period when you are not fully aware of your payment obligations.

Here are a few things to consider when planning staffing over the period.

1. Penalty Rates – When Do They Apply?

This year, Christmas Day falls on a Wednesday and Boxing Day on a Thursday. For employees covered by an award or enterprise agreement, a penalty rate may be applicable for the hours worked on the public holiday/s. Penalty rates vary from award to award and agreement to agreement, some including the causal loading and some not.

It is critical that you understand if your employees are covered by an award or an agreement in order to know what public holiday penalties apply.

2. Right to a Paid Day Off

Separate to the entitlement to penalty rates for work on a public holiday under awards and enterprise agreements, is the entitlement to a paid day off under the Fair Work Act 2009. This entitlement may fall on different days to those that penalty rates apply to under an award or agreement.

In the case of national system employees, where they are absent from their employment on a public holiday, they must be paid their base rate of pay for any ordinary hours they would have worked on that day. Where an employee is absent from work on a public holiday due to authorised annual leave or paid personal/carer’s leave, the employee is taken not to be on annual or paid personal/carer’s leave on that day. Instead, the day is treated as a public holiday, and paid as such.

State system employees that are not required to work on a day solely because it is a public holiday, are entitled to be paid as if they were required to work on that day.

3. Roster Changes

Most awards and enterprise agreements contain notice requirements for making changes to rosters. In some cases this can be up to 4 weeks notice. So it is important to plan well ahead if you are considering altering the usual rostered hours for staff over the Christmas period and to check any binding industrial instrument (i.e. award or agreement) for obligations when making such changes. In some cases, failure to meet the notice or consultation requirements may result in a breach and place a business at risk of fines. Additionally, where insufficient notice is given, some awards and agreements will require penalty rates to be paid for unplanned shifts.

4. Right to Request & Right to Reasonably Refuse Work on a Public Holiday

National system employers have the right to request employees work on a public holiday. However, employees have the right to refuse to work where the request is unreasonable or the refusal is reasonable. In each case, the reasonableness must be considered in light of grounds prescribed in the Fair Work Act 2009. These include family responsibilities, personal circumstances, the nature of the workplace or enterprise, whether compensation would be afforded for work performed on the public holiday and the amount of notice provided by either party to work or not work etc.

Employees are not required to produce evidence confirming the ground(s) on which they claim reasonable refusal to work. As a result, it may be difficult to prove the refusal was unreasonable and necessitate payment for the day off where they would ordinarily work that day.

For further information on any of the above, please contact the Employee Relations Advice Centre on (08) 9365 7660 or email

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