The most important step is to check the conditions relating to your right to send employees on an annual close down. This will depend on the Modern Award or Enterprise Agreements that apply for your business and will outline the minimum required notice period to notify your employees.
Most Awards will contain terms which allow employers to send employees on an annual close down. This is usually subject to an employer giving affected employees at least four weeks’ notice, although an Award may require a greater period of notice. For example, the Building and Construction General On-site Award 2010, and Meat Industry Award 2010 requires an employer to give at least three months’ notice of a close down.
Other Awards that specify a set notice period can be found here.
If a Modern Award doesn’t contain a provision regarding annual close down, an employer cannot direct employees to take annual leave as an annual close down. The Fair Work Act states that paid annual leave may be taken for a period agreed between an employee and an employer. This means an employer must obtain the agreement of each affected employee for a close down to occur.
It’s important to comply with the notice periods as set out in the Award or Agreement. Awards have differing requirements regarding how the notice must be given i.e. whether notice needs to be provided verbally or in writing; however, in writing either via email or hard copy is best practice.
This e-guide provides employers with an overview of Australia’s Modern Award system, and explains the ten National Employment Standards that every business must follow. Download here.
Award or Agreement free employees
The Fair Work Act allows employers who may require an Award or Agreement employee to take a period of paid annual leave, but only if the request is reasonable. A ‘reasonable request’ would be if your business is due to shut down for a period during Christmas and the New Year.
Matters that can be agreed between the employer and an Award or Agreement free employee include:
- for paid annual leave to be taken in advance of accrual (when the period of the close down exceeds an employee’s annual leave balance)
- for a specified period of notice must be given before taking annual leave, e.g. four weeks’ notice, and
- the form of application for paid annual leave
The Fair Work Act lists the official days prescribed as a public holiday for the purpose of the National Employment Standards.
These provisions apply in conjunction with the public holidays declared under the relevant state or territory public holiday legislation. If a public holiday falls during a period of annual leave (such as an annual close down), the day is not considered annual leave where the public holiday falls.
The various public holidays over the Christmas - New Year period are:
- Christmas Eve – Monday 24 December 2018 (SA only from 7pm-midnight)
- Christmas Day – Tuesday 25 December 2018 (all states and territories)
- Boxing Day – Wednesday 26 December 2018 (all states and territories)
- New Year’s Eve – Monday 31 December 2018 (SA only from 7pm-midnight)
- New Year’s Day – Tuesday 1 January 2019 (all states and territories)
- Australia Day – Monday 28 January 2019 (all states and territories)
Understanding leave obligations can be a challenge for employers, particularly when it comes to public holidays.
This e-guide outlines employee entitlements for permanent, casual and shift workers to help business owners stay compliant: Download here.
Other periods of paid leave
Under the Fair Work Act if the period of a close down for annual leave includes a period of any other paid leave, such as a public holiday, personal/carer’s leave, compassionate leave or community service leave, an employee is not considered to be on paid annual leave for the period of the other leave. This provision applies to paid leave entitlements under the National Employment Standards.
Awards vary as to the form of notice required eg whether notice must be provided in writing or verbally, so it is best to consult the award that covers your employees to ensure you are following the correct process.
For help with providing notice, or for advice on managing staff over the Christmas and New Year period, contact Employsure on 1300 651 415.
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