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An employee’s right to have paid leave on Christmas Eve has been upheld by the NSW Industrial Relations Commission

A long standing arrangement for Newcastle City Council staff to have a half-day of paid leave on Christmas eve has been found to be a condition of their employment, unable to be unilaterally revoked by Council.

In 2013 Newcastle City Council tried to implement a change to the traditional leave arrangements for staff on Christmas eve, removing the right to a paid half-day of leave.

The change was challenged by the NSW Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union.

In proceedings before the NSW Industrial Relations Commission the Union submitted that the holiday was “an established custom and practice” that formed an implied term of the contract of employment and therefore could not be varied by the employer without consent.

Commission Deputy President Harrison agreed, stating that the half-day of paid leave was “a customary usage which has long standing within Newcastle City Council employment and is imported into the contract of employment”.

The paid leave arrangement had been in place for 30 years and as such, had become “crystallised custom and practice forming part of the employees’ rights and entitlements”. 

In order to become an implied term of a contract the term in question must be uniform, reasonable, capable of certainty and well known. Commission Deputy President Harrison found that the long standing entitlement to this half-day of paid leave met all of these requirements and ordered that the leave be granted on the same terms as had applied in the past.

For more information on your rights at work contact Peter Moore at Brazel Moore Lawyers on (02) 4324 7699.

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