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Christmas is about 6 weeks away and employers need to prepare now for the holiday season.

Key considerations for employers are:

  • Employers may need to give employees written notice, which in most awards is currently at least 28 days, if it intends to shut down over the Christmas period.
  • Employers may need to make a reasonable request for employees to work on the upcoming public holidays if their business operates every day of the year.
  • Employees can reasonably refuse that request.
  • Preparing for workplace socials such as the Office Christmas Party.

Workplaces closed over Christmas

Earlier in 2023, the treatment of annual shutdowns was varied in 78 awards. If you are an employer affected by these changes, you must adhere to them. The changes included are as follows:

  1. You (the employer) 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.
  2. You can direct employees to take paid annual leave during the shutdown period, but this direction must be in writing and must be reasonable.
  3. 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.
  4. 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 commence.
  5. 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.

A number of Awards have been updated with these new provisions. Some of these include:

  • Clerks – Private Sector Award 2020
  • Hospitality Industry (General) Award 2020
  • Restaurant Industry Award 2020
  • General Retail Award 2020
  • Health Professionals and Support Services Award 2020
  • Business Equipment Award 2020
  • Building and Construction General On-Site Award 2020,
  • Professional Employees Award 2020

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.

Workplaces Open over Christmas

If you do not intend to close down over the holiday period and require employees to work out throughout the season including public holidays, it is important to note that, following an important decision this year, employers must “request” the employees to work on a public holiday. This process is compulsory, regardless of whether an employment contract or enterprise agreement applies.

An employer must reasonably request the employee to work on a public holiday and cannot just roster the employee to work without making this request. You will need to ensure that employees understand that:

  • either the roster is in draft requesting those employees who have been allocated to the public holiday work that they indicate whether they accept or refuse that allocation, or
  • the request is made before the roster is finalised.

This is why you should be taking steps now to identify which employees are needed to work over the public holidays, so that you can request those employees early.

Employees can refuse the request to work on a public holiday if their refusal is reasonable. For example, caring responsibilities and a lack of access to childcare may be relevant for determining if a refusal is reasonable.

If your request is reasonable and the employee’s refusal is unreasonable, then you may be able to direct the employee to work but we urge caution here and recommend you obtain advice before issuing such a direction.

If your employees accept a request to work on a public holiday, ensure that you pay the appropriate public holiday rates in accordance with an applicable modern award, enterprise agreement or contract of employment.

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

As you plan to hold your annual Christmas office parties, it is also a good time to remind employees of your workplace policies and procedures, particularly regarding workplace events. Some quick tips are as follows:

  1. Put Someone in Charge – appoint someone, such as a director or partner, 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.
  2. Establish Clear Expectations – take pro-active steps to remind your employees of the acceptable workplace event conduct including your workplace policy regarding workplace social events.
  3. Select the Venue Carefully – Make sure you select a venue that is safe, work-appropriate and easy to access for all members of your team. If you decide to use a relatively public space, such as a bar, you should make sure that you reserve a dedicated area which will remain within your control throughout the function.
  4. Set a Clear Timeframe for Your Event – Make sure everyone knows when your party officially ends. In other words, make the distinction between the end of your firm-sanctioned Christmas party and the start of unrelated shenanigans as clear as possible. You want to make it clear to everyone that, at a certain point, the event is no longer regarded as being employer-sponsored.
  5. Communicate Options Early and ClearlyBe sure to let your staff know your Christmas party plans as soon as possible. In a small firm, this can easily be done informally everyone during a staff meeting, or even on a one-to-one basis with each of your employees. Letting your employees know 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 with you well in advance.
  6. Deal with Complaints Quickly – If you have followed all of the above tips and something goes wrong, you can at least be safe in the knowledge that you did everything within your power to avoid the mishap. But no matter how minor or how serious the event in question is, make sure that you take immediate action in accordance with your workplace policies.

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