Staffing Over the Holiday Season: What’s Legal and What’s Not?
The holiday season is a time of celebration, but for businesses, it often presents unique staffing challenges. From navigating employee leave to managing public holiday pay, understanding your legal obligations is crucial. Whether your business remains open or shuts down during the festive season, here’s a comprehensive guide to help you stay compliant and ensure a smooth operation.
Annual Leave During a Shutdown Period
For many businesses, especially those in industries like hospitality and retail, the holiday season might mean shutting down operations temporarily. In these cases, you can direct employees to take annual leave during the shutdown period, provided certain conditions are met:
- Award-Covered Employees: If your employees are covered by a Modern Award or enterprise agreement, you can direct them to take annual leave during a shutdown. However, this must be done reasonably, in writing, and with a minimum notice of 28 days
- Award-Free Employees: For employees not covered by an award or agreement, you can still request them to take annual leave during a shutdown. If they don’t have enough accrued leave, options such as unpaid leave can be agreed upon, but this cannot be mandated
- Notice and Reasonableness: Regardless of the employee’s status, the direction to take leave must be reasonable. For example, directing an employee to exhaust all their accrued leave for a lengthy shutdown may not be considered reasonable
Handling Insufficient Leave
When an employee doesn’t have enough accrued leave to cover the shutdown period, several options are available:
- Annual Leave in Advance: With mutual agreement, employees may take annual leave in advance
- Unpaid Leave: If both parties agree, the employee can take unpaid leave for the duration not covered by accrued leave.
- Work Availability: If no agreement is reached, and the business remains partially operational, the employee may continue to work during the shutdown and receive their normal pay
Public Holidays: Work and Pay Requirements
Public holidays during the festive season come with specific obligations and rights:
- Reasonable Requests to Work: Employers can request employees to work on public holidays, but this request must be reasonable. Factors like the nature of the job, the amount of notice given, and the employee’s personal circumstances play a role in determining reasonableness. Employees have the right to refuse if the request is unreasonable
- Public Holiday Pay: Employees who work on public holidays are generally entitled to higher pay rates, such as double-time-and-a-half, depending on their award or agreement. Even if an employee does not work on a public holiday, they are entitled to their usual pay for that day if it falls on a day they would normally work
Paying Attention to Public Holiday Weekends
When public holidays fall on weekends, pay rates can vary:
- Higher Penalty Rates: Often, employees are entitled to the higher of the applicable penalty rates. For instance, if Christmas Day falls on a Saturday, and an employee is eligible for both Saturday and public holiday rates, they are generally paid the higher rate
- Cumulative Benefits: Some awards or agreements may allow employees to receive both penalty rates, so it’s crucial to check the specific terms of the applicable award or agreement
Practical Tips for Employers
Navigating the holiday season’s legal requirements can be complex. Here are some practical steps to take:
- Review Employment Contracts: Ensure that contracts include clauses about holiday shutdowns and leave requirements.
- Communicate Clearly: Provide written notice well in advance if you plan a shutdown or if there are changes to the holiday work schedule.
- Check Relevant Awards and Agreements: Different awards and agreements have specific rules regarding leave and public holiday pay. Ensure you are compliant with the relevant provisions
For more detailed information on managing holiday staffing, employers can refer to resources provided by Fair Work Australia. Understanding these rules not only helps in staying compliant but also contributes to a positive work environment during the festive season.
As the holiday season approaches, ensuring you’re fully prepared can alleviate much of the stress associated with managing a business during this busy period. By understanding your legal obligations and communicating clearly with your staff, you can create a smoother and more enjoyable festive season for everyone involved.
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