Working at Christmas or made to take leave? Ho Ho Hum
Posted on December 04, 2025
Many employees enjoy a break over the Christmas and New Year period.
Depending on the industry and workplace, employees may be told they are required to work on public holidays or are required to use their annual leave because of a business shut down. So, what are the rules and what can employers require over the festive season?
Working on public holidays
Section 114 of the Fair Work Act 2009 (Cth) (Act) provides that employees are entitled to be absent from work on a day or part day that is a public holiday.
However, an employer can request an employee works a public holiday. If a request is made, the employee may refuse the request if the request is not reasonable or the refusal is reasonable.
The Act provides a number of factors to be taken into account when determining if the request or the refusal are reasonable. These include:
- the nature of the employer's workplace and the nature of the work performed;
- the employee's personal circumstances, including family responsibilities;
- whether the employee could reasonably expect the employer might request work on the public holiday;
- whether the employee is entitled to receive overtime payments or penalty rates, or receives remuneration that reflects an expectation of work on the public holiday;
- the type of employment of the employee (for example shiftwork);
- the amount of notice given by the employer when making the request, or the amount of notice given by the employee when refusing the request.
In 2023, the Full Bench of the Federal Court found[1] 85 mine workers in central Queensland were unlawfully required to work on Christmas Day and Boxing Day.
In November 2025, the Court ordered[2] compensation to the employees and a pecuniary penalty payable to the Union.
The mine operated 365 days per year. The employees’ contracts provided “you may be required to work on public holidays and payment for this expectation has been incorporated into your existing remuneration”. The Court found the annual salary exceeded the amount payable to the employees under the Award, even if they had worked 10 public holidays in the year (which was unlikely given the seven days on, seven days off roster).
The Full Court determined the company breached the Act because it required rather than requested the employees work the public holidays. The Court considered that while an employer can have a roster that includes public holidays, it must ensure employees understand the roster is in draft until the employees indicate they accept or refuse the allocated public holiday shift, unless the request to work was made (and accepted) before the roster was finalised.
Requirement to take annual leave
Modern awards and enterprise agreements may include terms requiring an employee to take paid annual leave in particular circumstances but only if the requirement is reasonable.
Award/agreement free employees may be required to take a period of paid annual leave but again, only if the requirement is reasonable.
A requirement may be reasonable if the enterprise is being shut down (for example between Christmas and New Year).
Effective from 1 May 2023 the shutdown provisions in 78 modern awards were varied by a decision[3] of the Fair Work Commission. While an employee covered by an award that has a shutdown provision may be directed (with written notice) to take a period of annual leave for which the employee has an accrued entitlement, an employer cannot require an employee to take unpaid leave or annual leave in advance during a shutdown period without the employee’s agreement. If an employee does not agree to take unpaid leave or annual leave in advance, the employer must continue to pay the employee. In that instance, the employer may identify useful work for the employee to perform during the shutdown rather than paying them to perform no duties.
Take away messages
Employers should review their practices in respect of requesting employees to work public holidays or directing them to take annual leave.
Need assistance?
Please contact our workplace relations team if you require any advice or assistance with understanding employee entitlements over the festive season.
[1] Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51.
[2] Mining and Energy Union v OS MCAP Pty Ltd (No 3) [2025] FCA 1372.
[3] 4 yearly review of modern awards—Plain language—Shutdown provisions [2022] FWCFB 246.
