Annual leave over the Christmas and New Year’s period can be difficult to manage. As this period fast approaches, now becomes an important time for employers to plan ahead for the shutdown period to notify its staff to take forced leave. Employers must ensure they meet any specific obligations under any relevant Award or Enterprise Agreement, otherwise the implications may be costly.
Most employees under an Award or Enterprise Agreement contain terms regarding annual shutdown periods and generally speaking at least four weeks’ notice by the employer is required. However, some Awards or Enterprise Agreement’s may contain a greater period of notice. Alternatively, employees that are covered by a separate employment agreement may have relevant provisions regarding the Christmas and New Year’s shut down period or it may be covered under a company’s policy. Familiarise yourself with the required notice period to ensure that it is done in time!
Where there is no mention of notice periods under the industrial instrument, the general rule under the Fair Work Act 2009 (Cth) (FWA) allows employers to direct their staff to take annual leave if the request is reasonable. For example, the employer’s enterprise being shutdown over the Christmas and New Year’s period is considered to be reasonable under the FWA. Factors taken into account to determine whether a direction by the employer is reasonable include:
(a) Needs of the business or employee;
(b) Prior arrangements between employer and employee;
(c) Timing of the notice given to the employee;
(d) Business’ past practices.
On the other hand, an employer may wish to direct employees to attend work over the Christmas period if it is a particularly busy time for the business or if a small number of employees are required to keep the business running (again it is important to check whether there is any mention of this under the industrial instrument). However, an employer must not unreasonably refuse an employee’s request to take annual leave over the Christmas and New Year’s shutdown period and again what is reasonable will depend on the circumstances.
To help you focus on your operations during this busy time of year, we can help manage the legal requirements with respect to the holiday period or employment obligations in general. Contact our Employment Team for assistance.
Article prepared by: Joey Tass – Associate, Sydney