The holiday season is upon us. Many of you may hope your employers will pay cash bonuses, implement salary increases, and, most importantly, approve leave during the holiday period.
While you cannot force your employer to do any of the above, you should expect them to at least seriously consider leave requests, even if they fall in a blackout period.
A blackout period is a period during which a business prevents its employees from taking annual leave. These periods usually coincide with major holidays when businesses are busiest. As a result, businesses may want to implement a blackout period to ensure they have adequate staff.
For many retail, hospitality and tourism businesses, the Christmas and New Year period from December to January is one of the peak trading periods.
Blackout periods are entirely lawful and often necessary in the retail industry. However, to ensure that a blackout period is lawful, the company must have a leave policy that sets out reasonable requirements for the blackout period. This is because the National Employment Standards (NES) requires employers not to unreasonably refuse leave requests. Otherwise, a failure to grant annual leave without good cause, there is a risk of disputes or claims being made.
An employment lawyer can help employers draft a leave policy or procedure to minimise the risk to their business.
Here are the relevant public holidays for the Christmas leave period and New Year 2022/2023 in Australia:
| When | What | Where |
| Saturday 24 Dec 2022 | Christmas Eve (from 7pm-Midnight) | South Australia and Northern Territory only |
| Sunday 25 Dec 2022 | Christmas Day | National |
| Monday 26 Dec 2022 | Boxing Day | National / Proclamation Day (South Australia) |
| Saturday 31 Dec 2022 | New Year’s Eve (from 7pm-Midnight) | South Australia and Northern Territory only |
| Sunday 1 Jan 2023 | New Year’s Day | National |
The Fair Work Act 2009 (Cth) does not specifically address blackout periods at work. However, this does not mean that they are automatically legal or illegal.
The Fair Work Act 2009 (Cth) does provide that any request for leave must be made in consultation with the employer. The employer can only refuse your request if the refusal is reasonable. However, what is reasonable must be assessed on a case-by-case basis.
As part of leave entitlements for full-time and part-time employees, you are entitled to at least four weeks of annual leave per year (part-time employees receive four weeks equivalent to their work week).
All these leave days accumulate, and you can carry over the remaining leave from year to year.
Even during a blackout period, you should not be afraid or discouraged to apply for leave during this time.
If you want or need to use leave, apply for it!
Check beforehand whether an award or an enterprise agreement applies to you. This will determine whether you can force the employer to take annual leave during a blackout period.
If you do not have an award or an enterprise agreement, you should consult your employment agreement to see if there is a policy around shutting down during the Christmas holidays.
You have the right from the outset to be absent from work on a public holiday, and your employer can only request you to work on a public holiday.
Consequently, you may refuse the request if the request is unreasonable or if your refusal is reasonable.
Here are some factors that determine reasonableness:
Although you have the right to be absent from form on a public holiday, your employer can force you to work since many industries require you to work on public holidays.
To find out if your employer can force you to work on a public holiday, you need to check your status: what award or enterprise agreement applies to you. You can start your search using the “Find My Award” tool from the Fair Work Ombudsman.
For example, the General Retail Industry Award applies to retail workers, and the Hospitality Industry (General) Award 2010 or the Restaurant Industry Award 2010 applies to caterers and hospitality workers.
Under the modern awards, your employer must pay penalty rates to you for working on public holidays. However, some awards may include flexibility, such as not paying for the holiday but replacing it with days off or other options.
If you are not covered under an award, you should check your employment agreement as this may be set out there.
If you are a casual employee, you will only receive the penalty if you work on that particular day.
The employer does not have the automatic right to terminate you if you refuse to work on a public holiday.
Once your employer asks you to work on a public holiday, you may refuse. However, your refusal must be reasonable. Otherwise, your employer can terminate you for unreasonable refusal to work.
The case Steven Pietraszek v. Transpacific Industries [2011] dealt with this issue.
The case involved an employee who did not work on Christmas Day and Boxing Day despite being told to do so by his employer. The employer then terminated him for not showing up for work on these days during the holidays.
The Commissioner held that the employer’s request was reasonable. But also, that the employee’s refusal was reasonable. In reaching his decision, the Commissioner took into account the employee’s circumstances, such as his family situation and his belief that he would not be asked by the employer to work on the holidays. The Commissioner found no valid reason for the dismissal, and the termination was unreasonable under the Fair Work Act 2009 (Cth).
The Commissioner noted that the employer had not asked the employee why he refused to work on public holidays. Had the employer asked him, the outcome might have been very different.
If your refusal is reasonable, your employee cannot take disciplinary action or dismiss you. However, if your refusal is unreasonable, your employer may have the right to terminate you.
A recent Fair Work Commission (FWC) decision highlights the importance of correctly managing workers’ annual leave requests: Adriana Stevens v Horsley Park Supermarket Pty Ltd T/A Carlo’s IGA Horsley Park [2017] FWC 4626.
In this case, the employee was dismissed from her job as a duty manager in a supermarket after she failed to turn up for work because she was on an overseas holiday, even though her request for leave had been refused. The employer argued that she had abandoned her employment. While the employee argued that the rejection of the request for annual leave was unreasonable.
Section 88(2) of the Fair Work Act 2009 (Cth) provides that “the employer must not unreasonably refuse to agree to a request by the employee to take paid annual leave”.
While dealing with the matter, the FWC has established the following guidelines for dealing with annual leave requests:
Once an employer receives a request for annual leave from an employee, he must review and decide on the request within a reasonable time frame and notify the decision to the decision.
The reasonableness of the time frame depends on the circumstances of the request.
The employee should do the right thing to the employer and inform them as early as possible. This will give the employer time to consider the request and make the necessary plans to cover the employee’s absence if annual leave is approved.
In this case, the employer received the employee’s request for leave for 10 April 2017 on 12 January 2017. The employee did not receive a decisive response until 22 March 2017 – about 10 weeks later.
The FWC found that the employee had given a significant amount of notice, which gave the employer “an enhanced opportunity to make arrangements to cover the absence”.
The fact that the employer knew that the employee had made arrangements to travel abroad and that she risked losing $4,000 if she did not travel obligated the employer to “communicate unequivocal refusal in a timely manner.”
It is reasonable for a business to consider its operational needs when refusing to authorise leave. For example, many retail companies block out the Christmas and New Year periods as “non-leave” periods to ensure sufficient employees are available.
In this case, the employer had imposed a holiday blackout for the Easter season in April. The employer tried to argue that he had a reasonable basis for refusing the request for annual leave and instructing the employee to turn up for work – a reasonable and lawful instruction that the employee did not comply with.
The FWC acknowledged that “a decision to refuse a request for annual leave which is based upon genuine, sound business reasons would not usually be held to be unreasonable.”
However, the late response meant that the refusal had become unreasonable due to the delay, and the employee had no choice but to advise that she could not attend work during that period.
As with most other employment issues, a refusal to approve annual leave must be documented and communicated to the employee as soon as possible and in a manner that the employer considers appropriate.
In this case, the employer argued that the lack of written approval between 12 January 2017 and 22 March 2017 (when he communicated the refusal verbally) should have been taken as a refusal of the employee’s request.
The FWC rejected this argument, stating that the employer should have ensured that “unequivocal documentary communication of any decision to reject any application for annual leave is made in a timely manner.”
The FWC also criticised the employer’s conduct in attempting to inform the employee of the possible termination of her employment by sending letters to her home despite knowing that she was overseas – an act that the FWC described as a disingenuous attempt to justify the dismissal.
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