Christmas HR - Employees' rights at Christmas time

Christmas can be a stressful time for small businesses, with the challenges associated with the busiest time of the year being exacerbated by staffing issues. This article takes a brief look at some general factors relating to employees’ annual leave, holidays, work hours and hiring temporary staff.

 Christmas Shut Downs

A lot of businesses outside of the retail industry shut down over the Christmas and New Year period, requesting employees to use some of their annual leave entitlements. This arrangement does not suit everyone, and some employees may claim that they cannot be forced to take annual leave because of an office shutdown.

 If an employee has unused annual leave available, their employer can require them to take annual leave during a shutdown, provided that their employment agreement that is registered with the Fair Work Commission or Modern Award allows for it. To give a sense of perspective, almost all employment agreements are ‘registered agreements’, including collective agreements, enterprise agreements and Australian Workplace Agreements.  Employment contracts need to at the very least meet the minimum requirements of the appropriate Modern Award and the National Employment Standards (NES). Awards and the NES will stipulate the minimum amount of notice and employer is obligated to give their employees in relation to a forced shut down.  The notice period varies by award but is normally between 4 weeks and 3 months.

 If the employee has exhausted their annual leave entitlements, the employer and employee can make a deal to cover the period of the shut down with unpaid leave or annual leave entitlements that have not yet accrued.

 However, if the employee doesn’t agree to either solution, they cannot be forced to take unpaid leave, meaning they may have to be paid their ordinary rate during the period of the shut down. This will depend on the terms of the registered agreement or Award. Basic details are available from the Fair Work Commission here.

 Work Hours

 Shift work employees may work significant extra hours during the festive season, meaning extra care must be taken to ensure that employees receive the work breaks and Rostered Days Off as required by the Fair Work Act.

 The registered agreement, Award or NES, covering the employee will establish minimum and maximum working hours in any day, week, fortnight or month, as well as the ordinary hours of work. The maximum allowable hours in a week will almost always be 38, but under certain awards, more than 38 hours may be worked as long as the average over a four-week period (or other defined week cycle) does not exceed 38 hours per week. Daily limits on allowable work hours still apply regardless of season. More industry-specific details can be found here.

Where employees work more than 38 hours in any one week, the time worked in excess of that limit may be reimbursed as a registered day off (to the value of the over time) to ensure that the average hours worked over a two, three or four week period does not exceed 38 hours per week. 

 Christmas Casual Employees

 Finally, it is important to remember that casual employees hired solely for the busy Christmas period are treated as regular casual employees.

 They are therefore subject to the same safeguards regarding shift length, weekly working hours, minimum hours per shift, and registered days off. And don’t forget the casual loading applied to wages to cater for the value of leave entitlements. This is normally a 25% loading, except where specified in the appropriate Award.

 When hiring Christmas Casuals, it may be prudent to include a statement in their employment agreement clearly stating the last date of the employer’s defined Christmas season, which would therefore be the last possible date on which a temporary employee would work.

If you need assistance interpreting and implementing your staffing obligations under the Fair Work Act, don’t hesitate to give Sync or Swim a call today!