Christmas / New Year Business Shutdown and Award Staff Leave Changes 

Many businesses could be effected by the Fair Work (FW) Commission and new clauses and changes to the shutdown provisions applied from the 1st of May 2023.  

This means the traditional break over Xmas and New Years and instructing employees to take their annual leave or unpaid leave over this time maybe an issue in your workplace if your business shuts down over this period.  

There are 78 awards including Clerks, General Retail, and Miscellaneous Awards that have been changed and employers must review thoroughly any shutdown terms and conditions they have with their employees.  

Employers can during a temporary shutdown :   

1. Direct employees to take accrued annual leave during this period 
2. Are required to give 28 days’ written notice of the shutdown (or less time if the majority of the employees agree)  
3. Give reasonable directions to take annual leave 
4. Allow the following – if an employee doesn’t have enough annual leave to cover them – these employees might be able to take annual leave in advance or take leave without pay by written agreement.  

The new model in the FW Award changes do NOT allow employers to direct employees to take unpaid leave. This means employers must :  

• during the year ensure their employees have sufficient leave to cover the shutdown periods, or, 
• make agreements that the employees can take annual leave in advance or leave without pay to cover the shutdown period.  

Employers cannot direct employees to take unpaid leave and might have to give to employees who are covered by the changes in the 78 awards and who have not sufficient annual leave accrued either:  

1. work; or
2. pay the employee for the break period in which the employee doesn’t have enough leave to cover them.  

If your employees are not covered by one of the 78 awards that have changed, then employees still need to have “reasonable” requirements to take unpaid leave in a temporary Christmas – New Years shutdown (see section 94 of FW Act). Annual leave in advance can still a possible consideration.  

Although the new changes in the FW Act Award is aiming for mutual understanding and agreement on taking leave over the Christmas / New Year shutdown period, employers and business need to ensure they are complying with the Fair Work Act 2009 (Cth). 

If you are unsure of this please contact me at performance Advantage via our website ( About Us – Performance Advantage, or by clicking the blue button below), email us at 

suzanne@performanceadvantage.com.au or call us on 0408 897 079.