A shutdown is when a business temporarily closes during slow periods of the year, such as Christmas and New Year. It is also called a “close down”.
If the business requires employees to attend work during the shutdown period, they should be paid as normal.
Employees do not have to attend work on any days during a shutdown that are public holidays.
When a public holiday falls on a full-time or part-time employee’s usual work day, employers need to pay them for the ordinary hours they would have normally worked.
The minimum pay rate doesn’t include any loadings, overtime, or penalty rates that they usually get for working that day unless their award, enterprise agreement or contract gives them additional entitlements. In some cases, you may have a contractual obligation to pay certain allowances if they form part of the employee’s salary.
What happens if a public holiday falls during an employee’s annual leave?
If a public holiday falls during an employee’s annual leave, it needs to be paid as a public holiday and not as annual leave. It should not be taken off the employee’s annual leave balance.
Public holiday entitlements are determined by where the employee is based for work.
It is important to know when public holidays are to be observed because employees can get different entitlements on these days.
Public holidays can vary between the states and territories.
Here is a summary of the public holidays for each State or Territory (over the festive season):
| NSW | VIC |
| Monday, 25 December 2023 – Christmas Day Tuesday, 26 December 2023 – Boxing Day Monday, 1 January 2024 – New Year’s Day NSW – Public Holidays | Monday, 25 December 2023 – Christmas Day Tuesday, 26 December 2023 – Boxing Day Monday, 1 January 2024 – New Year’s Day VIC – Public Holidays |
| QLD | WA |
| Sunday, 24 December 2023 – Christmas Eve (Part day PH from 6pm to 12 midnight) Monday, 25 December 2023 – Christmas Day Tuesday, 26 December 2023 – Boxing Day Monday, 1 January 2024 – New Year’s Day QLD – Public Holidays | Monday, 25 December 2023 – Christmas Day Tuesday, 26 December 2023 – Boxing Day Monday, 1 January 2024 – New Year’s Day WA – Public Holidays |
| TAS | SA |
| Monday, 25 December 2023 – Christmas Day Tuesday, 26 December 2023 – Boxing Day Monday, 1 January 2024 – New Year’s Day TAS – Public Holidays | Sunday, 24 December 2023 – Christmas Eve (Part day PH from 7pm to 12 midnight) Monday, 25 December 2023 – Christmas Day Tuesday, 26 December 2023 – Boxing Day Sunday, 31 December 2023 – New Year’s Eve (Part day PH from 7pm to 12 midnight) Monday, 1 January 2024 – New Year’s Day SA – Public Holidays |
| ACT | NT |
| Monday, 25 December 2023 – Christmas Day Tuesday, 26 December 2023 – Boxing Day Monday, 1 January 2024 – New Year’s Day ACT – Public Holidays | Sunday, 24 December 2023 – Christmas Eve (Part day PH from 7pm to 12 midnight) Monday, 25 December 2023 – Christmas Day Tuesday, 26 December 2023 – Boxing Day Sunday, 31 December 2023 – New Year’s Eve (Part day PH from 7pm to 12 midnight) Monday, 1 January 2024 – New Year’s Day NT – Public Holidays |
As a reminder! Employees have a right to be away from work on a public holiday. Employees should be given the choice to work on a public holiday or not.
As per section 114 of the Fair Work Act, an employee is “entitled to be absent” on a public holiday. The Act also states that employers can request employees to work on a public holiday, but the request must be reasonable.
An employee can refuse a request to work if:
- the employee has reasonable grounds or
- the request is unreasonable.
| Employers should check if they need to manually adjust their payroll system to ensure paid leave (like annual leave) isn’t incorrectly deducted during a public holiday not worked. |
Recent Court Decision
A recent court decision highlights the fact that employers cannot “require” an employee to work on a public holiday and must first request the employee to work on the public holiday.
The Full Court handed down it’s decision on CFMMEU v OS MCAP Pty Ltd [2023] FCAFC 51 on 28 March 2023.
BHP’s in-house labour-hire company had included the Christmas and Boxing Day public holidays for 2019 as part of the normal roster for several employees, which effectively was seen by the union (and the court) as “requiring” the employees to work on a public holiday in breach of section 114 of the Fair Work Act. The court found that there was no official request for the employees to work on the public holiday, and therefore the employees had no option to refuse such a request. BHP applied to the High Court to appeal the decision, but this request was refused.