Christmas holidays are fast approaching, and most businesses will either continue operating, reduce operations or completely shut-down. When deliberating on how to manage the workforce during this time, employers should consider the following:
- Providing Appropriate Notice: most awards require the employer to provide at least 28 days written notice if it intends to shut down over the Christmas period.
- Requesting Employees to Work: An employer may need to make a reasonable request for employees to work on the upcoming public holidays if their business will be operating over the holidays. Employees can reasonably refuse that request.
- Christmas Parties: Businesses intending to have social gathering such as Christmas parties should prepare for such events by providing clear policies and procedures of acceptable conduct during such socials.
Workplaces closed over Christmas and New Year
Most Modern Awards (78 Awards) contain a model annual shutdown clause. This model clause allows the employers to direct employees to take annual leave during annual shutdown period, provided that the following prescriptive requirements are met:
- Employers must provide affected employees with a 28 days’ written notice, if you intend to shut down all or part of your operations for a particular period and you require employees to take paid annual leave during that period. The notice period can only be less than 28 days if this is agreed between you and majority of the relevant employees. If any new employee starts after the 28 days’ notice period, you must give that new employee the notice as soon as practicable after the employee is engaged.
- Employers of award free employees and awards that do not contain the model clause can direct employees to take paid annual leave during the shutdown period, but this direction must be in writing and must be reasonable.
- If an employee does not have enough accrued annual leave to cover the shutdown period, you and the employee can agree in writing that the employee will take a period of unpaid leave. You cannot direct any employee to take unpaid leave.
- If an employee does not have enough leave, you can offer them annual leave in advance to cover the shutdown period. Any agreement about annual leave in advance must be in writing and must record the amount of leave being taken in advance along with the date on which the leave will be commence.
- If your employee does not agree to take unpaid leave or annual leave in advance of its accrual, you’ll then need to pay them their ordinary wage or salary during the shutdown. This can, of course, be exceptionally expensive, particularly if the business has no income while it is closed.
For Award free employees or Awards that do not contain annual shut down provisions, we recommend that you consider including a direction, in relation to taking annual leave during future shutdowns, when you conduct reviews on employee contracts.
The NES allows an employer to direct an award/agreement free employee to take annual leave, provided that the requirement is reasonable. A note in the NES suggests that a direction to take annual leave could be reasonable if the business is being shut down for a period, such as Christmas and New Year period.
Unlike the modern award clauses, the NES do not contain prescriptive requirements like a particular period of notice. However, the length of notice provided to an employee is likely to be considered if there is any dispute about the reasonableness of the direction.
Where an enterprise agreement applies to an employee, any direction to employees to take leave must comply with the terms of the enterprise agreement.
Workplaces Open over Christmas and New Years
Businesses that will remain open over the holidays and therefore require employees to work over the period should consider that they must reasonably “request” the employees to work on a public holiday and cannot just roster the employee to work without making this request. This process is compulsory, regardless of whether an employment contract or enterprise agreement applies.
Businesses need to ensure that employees understand that:
- they have the opportunity to refuse public holiday shifts; and
- relevant operational circumstances which result in a requirement to work being reasonable are clearly set out
In practice, this can be achieved by communicating with employees you wish to allocate public holiday shifts before the roster is finalised or communicating that employees allocated to work on a public holiday on a roster can indicate whether they accept or refuse that allocation.
Employees can refuse the request to work on a public holiday if their refusal is reasonable.
Where a request is reasonable and the employee’s refusal is unreasonable, then the employer may be able to direct the employee to work but we urge caution here and recommend you obtain advice before issuing such a direction.
Finally, when reviewing your contracts, you should consider including a provision foreshadowing that the employees may be asked to work on public holidays and may be required to do so where the request is reasonable.
Workplace Socials
It is that time of the year where many businesses are planning to have a social gathering to celebrate the year that was. It is also a good opportunity to remind employees of your workplace policies and procedures, particularly regarding the workplace events. BetterHR has a ‘Work-Related Social Functions Policy’ template that subscribers can tailor to their needs.
Below are some practical steps businesses can take when organising Christmas and New Year parties to ensure employee safety:
- Have a point of contact for the days’ event from the management team such as a partner or director, who will be happy to avoid or at least appropriately moderate their alcohol consumption on the day, and who will be primarily responsible for ensuring the day goes to plan.
- Remind employees of the acceptable workplace event conduct including the businesses’ workplace policy regarding the workplace social events.
- Ensure that the party is held at a safe, work-appropriate venue that is easy for the employees to access. If it is at a relatively public space, such as a bar, it may be a good idea to reserve a dedicated area which will remain within your control throughout the function.
- Set a clear time as to when the party officially ends. This will help establish that any celebrations outside the stated time are unsanctioned and unsponsored by your business should employees choose to continue staying at the venue or continue celebrating elsewhere.
- Give your employees enough notice and information regarding the Christmas party plans as soon as the business establishes them. This can be done during a staff meeting, through a memo, or even on a one-to-one basis with each of your employees for smaller organisations. Informing employees about the event early ensures that they have more than enough time to investigate transport options, check dietary requirements/options and raise any questions or concerns they may have well in advance.
- Following the above tips will provide your business with evidence of taking reasonable steps to provide a safe work event. However, if things do not go as planned and a complaint is made, no matter how minor or how serious it is, take immediate action in accordance with your workplace policies to address the complaint.
Need help with HR?
The BetterHR portal has letter templates and policy templates for annual leave in advance agreement and work-related social functions that subscribers can access and tailor to their needs in accordance with their subscription level.
BetterHR provides the HR advice, tools and advice that businesses need to manage people and compliance with confidence. If you are unsure of any matter relating to the above issues or any other HR or Employment Law issue, please contact the BetterHR experts to discuss.
