Employment changes regarding Shutdowns and Public Holidays


The Fair Work Commission (FWC) has made amendments to 78 modern awards as a part of its four yearly review. The amendments state that employers can no longer direct employees, who are subject to one of those 78 modern awards, to take annual leave or unpaid leave during a shutdown period if their leave balance is insufficient.

Essentially, an employee will now need to agree to take unpaid leave, and in circumstances where they do not agree, the employer will be required to find work for them or pay them during the shutdown period.  It is important to note however, that where an employee has sufficient accrued annual leave to cover the entirety of shutdown period, then that employee must take the accrued leave as directed by the employer.

Finally, some employers may have the right to direct an employee to take unpaid leave during a shutdown period where this right is underpinned by an enterprise agreement or employment contract. However, employees who are covered by one of the 78 modern awards will be subject to the new changes.

Public Holidays

In late March 2023, the Full Court of the Federal Court made the determination that a BHP labour hire company contravened section 114 of the Fair Work Act 2009 (Cth) (the Act) and the National Employment Standards by requiring employees to work on public holidays.  Section 114 of the Act provides that “an employer may request an employee to work on a public holiday…” but only if that request is reasonable.

It was determined that employers cannot simply just roster employees to work on public holidays and must instead request that they do so.  However, an employer can still require an employee to work on a public holiday in circumstances where the employee’s refusal was unreasonable due to:

a) the nature of the work to be undertaken;

b) the employer’s expectations being reasonable;

c) the type of employment which the employee is subject to; and/or

d) the level of pay being offered.

Therefore, employers should ensure that requests are made to employees to work on public holidays and that those requests provide an explanation as to why it is reasonable, while also inviting a response from the employee. In addition, any refusal by the employee in response should be taken into consideration by the employer.

Lastly, it should be noted that this decision was handed down on 28 March 2023 and may be subject to an appeal.