Less than 7 weeks until Christmas – what you need to be doing now

06 November 2023

We don’t want to cause panic amongst human resources staff, but with less than 8 weeks until Christmas, there are some very important steps you may need to take now in preparation for the Festive Season.

Open over Christmas?

If your business operates every day of the year, you will need staff to work on public holidays over the Christmas and New Year period. You may recall that an important decision was handed down earlier this year about the operation of the public holiday provisions in the Fair Work Act. This decision has been appealed but until that appeal is decided, you will need to go through a ‘request process’ if you want employees to work these public holidays, even if your employees have an employment contract or are covered by an enterprise agreement that requires them to work on a public holiday.

The decision made it clear that an employer must reasonably request the employee to work a public holiday and cannot do this simply by rostering the employee to work. This is where notice of the request is important.

For any public holiday you need an employee to work, you can request the employee to work, if the request is reasonable. For example, the fact that you have clients who need care on a public holiday and that you pay the employee a public holiday loading are factors which will likely make your request reasonable in the circumstances. Another factor that may make the request reasonable is the amount of notice the employee has of the request. This is why you should be taking steps now to identify which work is needed over the public holidays and notifying the employees who are being requested to work.

The employee can refuse the request 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.

Closed over Christmas?

Earlier this year, 78 awards were varied in relation to the treatment of annual shutdowns. If your employees are covered by one of these awards and your business is planning on having a shutdown period, you need to be aware of the following:

  1. 28 days before the shutdown period starts, you must give affected employees notice that 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 the majority of the relevant employees. If any new employees start after the 28 day notice period, you need to give that new employee 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 an employee can agree in writing that the employee will take a period of unpaid leave. You cannot direct any employee to take unpaid leave; and
  4. You can offer employees annual leave in advance if they do not have enough accrued leave to cover the shutdown period. Any agreement about annual leave in advance must be in writing and record the amount of leave being taken in advance and the date on which the leave will be commenced.

Amongst others, awards which have this new provision include the Building and Construction General On-Site Award 2020, Clerks – Private Sector Award 2020, General Retail Award 2020, Hospitality Industry (General) Award 2020 and Professional Employees Award 2020.

When reviewing your employment contracts, you may consider including a direction in relation to taking annual leave during future shutdowns.

This article was written by Zoe Weir, Partner, and Rochelle Airey, Special Counsel.

Zoe Weir

Partner | Perth

Rochelle Airey

Special Counsel | Perth

Subscribe to HWL Ebsworth Publications and Events

HWL Ebsworth regularly publishes articles and newsletters to keep our clients up to date on the latest legal developments and what this means for your business.

To receive these updates via email, please complete the subscription form and indicate which areas of law you would like to receive information on.

Contact us