Christmas–New Year period — employers’ checklist

Analysis

Christmas–New Year period — employers’ checklist

Many employers deal with particular kinds of workplace issues that appear to regularly occur during the Christmas–New Year period and summer school vacations.

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Many employers deal with particular kinds of workplace issues that appear to regularly occur during the Christmas–New Year period and summer school vacations.

With Christmas less than a few weeks away, it may be opportune to re-visit some of the more common employment-related problems that may occur during this period.

These issues include whether to close down during the Christmas–New Year break, identifying which days are public holidays, requests by employees for annual leave, work on a public holiday, and an increase in the rate of absenteeism.

With Christmas Day and New Year’s Day falling on a Sunday during this period, the matter of which day is declared a public holiday can create uncertainty for an employer.

Notice of termination

An employee who has been given notice of termination by the employer, or has given notice to the employer, is required to work out the notice period, except where prevented from attending due to illness or injury or when absent on authorised paid leave.

An employee who is absent during the notice period without reasonable cause may have wages deducted for the period of the unauthorised absence, however, the length of the notice period is not extended by the period of the unauthorised absence (ie the date of termination would remain unchanged).

Paid absences of annual leave, personal/carer’s leave, public holidays, long service leave, job search entitlement (where applicable), jury service and compassionate leave, etc, would count as part of the period of notice.

Industrial instrument — penalty rate

The declaration of a public holiday by a state or territory government determines the day on which an employee has a day off with pay where the day falls on an employee’s normal work day, as well as an employee’s right to reasonably refuse to work on a declared public holiday.

However, where work is performed by an employee on a designated holiday, the appropriate penalty rate for work performed on such a day is determined by the applicable industrial instrument (ie a modern award or enterprise agreement, or the employee’s contract of employment if the employee is award/agreement free).

Most industrial instruments prescribe a penalty rate of double time and a half for work performed on a public holiday (double time for continuous shift workers), although some instruments (eg Road Transport & Distribution Award 2010) may prescribe a higher penalty rate (triple time) for work performed on Christmas Day. Reference should be made to the applicable industrial instrument to determine an employee’s penalty rate for work performed on a declared public holiday.

Rostered day off (RDO)
 
Most industrial instruments allow a system of hours whereby additional hours are worked so that an employee receives a day off with pay over the roster cycle.

In most instances, this would mean a RDO every four weeks, although this will vary depending on the length of the period of the roster cycle. Generally, an industrial instrument provides that where a full-time employee’s ordinary hours include a RDO and such day falls on a public holiday, the employee is entitled to:
  • 7.6 hours pay at the ordinary rate; or
  • 7.6 hours of extra annual leave; or
  • a substitute day off on an alternative week day.

Continuous shift work

An industrial instrument may provide that a 7-day continuous shift worker whose ordinary working time includes public holidays but who is rostered off duty on a public holiday and who does not work shall have a day added to their annual leave or be paid an additional day’s pay to the weekly wage.

Close-down

It is common for a workplace to shut down its operations over the Christmas–New Year period because of a reduction in business activity in that particular industry or because the majority of employees request to take annual leave.

The NES does not provide for annual close down, except in the case of award/agreement-free employees (see s94(5) of the Fair Work Act 2009), although provision may be made in the applicable modern award. For example, the Manufacturing and Associated Industries and Occupations Award 2010 provides that an employer may close down the business for a period under the following circumstances:

  • the employer gives at least 4 weeks of notice of the intention to do so; and
  • an employee who has accrued sufficient leave to cover the period of the close-down, is allowed leave and also paid at the appropriate wage in accordance with the award; and
  • an employee who has not accrued sufficient leave to cover part or all of the close-down, is allowed paid leave for the period of which they have accrued sufficient leave and given unpaid leave for the remainder of the close-down; and
  • any leave taken as unpaid leave as part of a close-down also counts as service by the employee with the employer; and
  • the employer may only close down in two separate periods, although this arrangement can be changed by mutual agreement.
Reference should be made to the applicable industrial instrument to determine whether the employer can implement a close down of the business.

Annual leave requests

An employer may receive an increased number of requests for annual leave over the Christmas–New Year period. Under the Fair Work Act, an employer cannot unreasonably refuse to authorise an employee’s request to take annual leave, although any authorisation is subject to the ‘reasonableness’ test in s114 of the Act.

While it may be convenient for an employer to allow employees to take leave during this period, an employer’s refusal to allow an employee to take annual leave may be reasonable where the employee is required to perform plant maintenance or other essential duties while other employees are absent from work.

Refusal to work on a public holiday

Section 114 of the Fair Work Act states that an employer may request an employee to work on a public holiday if the request is reasonable.

Likewise, an employee can refuse to work on a public holiday if the employer’s request is not reasonable. In determining whether the employer’s request is reasonable, the following must be taken into account:
  • the nature of the employer’s workplace and the nature of the employee’s work
  • the employee’s personal circumstances
  • whether the employee could reasonably expect the employer might request work on the public holiday
  • whether the employee is entitled to receive overtime or other penalty payments that reflects the expectation to work public holidays
  • the type of employment of the employee (eg whether full-time, part-time, casual or shift work)
  • the amount of notice in advance of the public holiday given by the employer to the employee
  • the amount of notice given by the employee when refusing a request to work on a public holiday.
Declared public holidays

Section 115 of the Fair Work Act is applied in conjunction with state and territory laws which have declared or prescribed additional public holidays or substituted a day for a day that would otherwise be a public holiday.

A late gazettal by the Queensland Government should be noted — see below.

The following are the declared public holidays for each state and territory over the Christmas–New Year period for 2011–12:

Australian Capital Territory

Sunday, 25 December 2011 (Christmas Day)
Monday, 26 December 2011 (Additional holiday)
Tuesday, 27 December 2011 (Boxing Day holiday)
Sunday, 1 January 2012 (New Year’s Day)
Monday, 2 January 2012 (Additional holiday)

New South Wales

Sunday, 25 December 2011 (Christmas Day)
Monday, 26 December 2011 (Additional holiday)
Tuesday, 27 December 2011 (Boxing Day holiday)
Sunday, 1 January 2012 (New Year’s Day)
Monday, 2 January 2012 (Additional holiday)

Northern Territory

Sunday, 25 December 2011 (Christmas Day)
Monday, 26 December 2011 (Additional holiday)
Tuesday, 27 December 2011 (Boxing Day holiday)
Sunday, 1 January 2012 (New Year’s Day)
Monday, 2 January 2012 (Additional holiday)

Queensland

Sunday, 25 December 2011 (Christmas Day)
Monday, 26 December 2011 (Boxing Day)
Tuesday, 27 December 2011 (Additional holiday)
Sunday, 1 January 2012 (New Year’s Day)
Monday, 2 January 2012 (Additional holiday)

South Australia

Sunday, 25 December 2011 (Christmas Day)
Monday, 26 December 2011 (Additional holiday)
Tuesday, 27 December 2011 (Proclamation Day holiday)
Sunday, 1 January 2012 (New Year’s Day)
Monday, 2 January 2012 (Additional holiday)

Tasmania

Sunday, 25 December 2011 (Christmas Day)
Monday, 26 December 2011 (Additional holiday)
Tuesday, 27 December 2011 (Boxing Day holiday)
Monday, 2 January 2012 (New Year’s Day holiday)

Victoria

Monday, 26 December 2011 (Boxing Day)
Tuesday, 27 December 2011 (Christmas Day holiday)
Sunday, 1 January 2012 (New Year’s Day)
Monday, 2 January 2012 (Additional holiday)

Western Australia

Sunday, 25 December 2011 (Christmas Day)
Monday, 26 December 2011 (Additional holiday)
Tuesday, 27 December 2011 (Boxing Day holiday)
Sunday, 1 January 2012 (New Year’s Day)
Monday, 2 January 2012 (Additional holiday) 

It should be noted that Thursday, 26 January 2012 is the declared public holiday for Australia Day and will be observed on that day in each state and territory.

Source:
Paul Munro, IR Consultant.
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