Preparing for End-of-Year Closure & the Festive Season
As we enter into the festive season and businesses prepare to wind down for the year, we explore what you need to know about requiring employees to take leave during this period, and your obligations during work celebrations.
Business Shutdowns & Taking Leave
With the end of year and holiday season fast approaching, many are looking forward to some time off to celebrate, relax, reflect on the year that has been and plan for the new year ahead.
Around this time of year, business offices are usually closed, operations are shut down, and employees take a well-deserved break. At Norfolk Workplace Consulting, we are here to help you understand your rights and responsibilities as an employer when requiring employees to take time off during a shutdown.
It’s important to give employees a reasonable amount of notice of the business shutdown and their requirement to take time off during this period, so that they can plan for their breaks. Additional obligations around this also apply to award-covered employees.
There are a number of ways the notice can be provided, including:
via email or a letter to employees; and/or
as a company-wide notice, memo or bulletin.
We’ve developed a template Notice of Temporary Shutdown that you can use to notify your employees of the upcoming shutdown and requirement to take time off. If you’d like to access the Notice of Temporary Shutdown, click the link below.
Directing employees to take annual leave under a modern award.
Last year, the Fair Work Commission updated 78 modern awards to include new rules around directing employees to take leave during a shutdown. Are you across these rules?
Most modern awards allow an employer to direct an employee to take annual leave during a temporary shutdown period, provided certain requirements are met.
Notice period
To be able to direct an employee to take annual leave during a temporary shutdown period, you must provide the appropriate amount of notice in writing of the temporary shutdown period and direction to take annual leave.
While most awards (under the Annual Leave provisions) require an employer to provide 28 days’ written notice (or any shorter period agreed between the employer and the majority of relevant employees), some awards require a longer notice period.
For example, unless a shorter period has been agreed to between the employer and the majority of relevant employees, an employer must provide two months’ written notice to employees under the Building and Construction General On-site Award 2020.
If you’re not sure which award(s) cover your employees, we recommend contacting our team for advice.
If the required amount of notice is not provided to employees, it may impact your ability to direct them to take annual leave under the relevant modern award.
The requirement to take annual leave must be reasonable
To be able to direct employees to take annual leave during a temporary shutdown period, the requirement to take annual leave must be reasonable.
The reasonableness of the direction will depend on the circumstances. For example, it may be unreasonable to require an employee to take four weeks’ annual leave during a temporary shutdown period.
If you’re not sure which Awards cover your employees, we recommend contacting our team for advice.
Leave without pay by agreement only
The updated rules in most modern awards have made it clear that employers cannot direct an employee to take leave without pay during a temporary shutdown period.
Most awards do, however, allow you and an employee to agree to take leave without pay during a temporary shutdown period.
If an employee has exhausted their annual leave accrual and does not agree to leave without pay during the temporary shutdown period, they are likely entitled to be paid their usual wages during this period.
Other options
Other options that may be available under the applicable modern award include:
Agreeing to annual leave in advance; or
Using accrued time off in lieu (TOIL).
Directing award-free employees to take leave
Under the Fair Work Act 2009 (Act), an employer has more discretion in how they direct an award-free employee to take annual leave. Effectively, an employer may require an employee to take annual leave under the Act, but only if the requirement is reasonable.
The Act provides examples of where the requirement to take annual leave may be reasonable, which include when the employer's enterprise is being shut down for a period e.g., between Christmas and New Year.
Depending on the circumstances, there may be other considerations in determining whether a request to take annual leave is reasonable. If you are unsure, please reach out to us for guidance.
The Act does not allow an employer to direct an award-free employee to take leave without pay. If an employee does not have sufficient annual leave accrued, you may consider, if applicable, an agreement to take:
leave without pay;
annual leave in advance; or
TOIL.
Work celebrations & out of hours conduct
Around this time of year, many businesses organise celebrations and parties for their employees, which gives employees and employers the chance to have fun, connect, and celebrate. Unfortunately, this time of year can also be an HR nightmare and can leave employers dealing with conduct issues, complaints and even claims.
Workplace celebrations are generally considered an extension of the workplace, meaning that employers and employees can still be held responsible for any inappropriate or unlawful conduct that occurs at a work-related function.
To help mitigate these risks, it is important that employers are proactive in setting out clear expectations, reminding employees of their obligations, and promoting responsible behaviours.
Considerations for mitigating risks include:
Choose a safe and accessible venue
It may be appropriate to inspect your chosen venue in the lead up to your work-related function to identify any potential WHS hazards and if it is accessible for all staff (e.g., if there are accessibility ramps or lifts for staff who struggle using stairs). Consider how remote the venue is, and how employees will get to and from the venue.
Choose an appropriate theme
If you choose to have a themed party, ensure that it is appropriate and avoid themes that are likely to cause offence. Clearly communicate appropriate dress codes to employees.
Encourage responsible alcohol consumption
If you provide alcohol at your events, ensure that you have non-alcoholic beverage options and enough food available. You could consider limited drink vouchers per guest or require guests to purchase their own drinks.
Have a clear end time
Specify when your event will conclude and encourage employees to make their way home when the event ends.
Consider transport
If the venue is more remote, or if there is alcohol provided during your event, consider how employees will get home. You could consider organising a bus, arranging designated drivers, or pre-ordering taxis/ride share to transport employees to and from the venue.
Gift-giving
If there is gift giving, e.g. “Secret Santa”, make it clear to employees that gives should be appropriate and that gifts that are likely to cause offence should be avoided. Consider setting a price limit for gifts. Employees should not feel obliged to participate, and it should be made clear to them that participation is optional.
Designate a party manager(s)
Ideally this is an existing manager or leader. This person will monitor the event, provide assistance and address issues that arise during the event. This party manager should abstain from drinking alcohol during the event, or limit their consumption to avoid intoxication, to ensure that they can respond effectively and appropriately to any issues or provide assistance where necessary.
Review policies and remind employees of their obligations
Review policies and provide relevant policies to employees as a reminder before the event (such as your Code of Conduct and Respectful Behaviour policies). Prior to the event, make it clear to employees that they are still required to abide by your policies and must conduct themselves in a manner that is appropriate, consistent with these policies, and aligned to your company’s values.
We have developed a template email to employees with guidelines for work-related functions, which can be accessed below.
If issues or complaints arise, address them promptly
If any issues arise during your work-related function, they should be addressed promptly. If an employee is behaving in a manner that is unsafe or inappropriate, their behaviour should be addressed immediately and, if necessary, they should be directed to leave the function (with assistance provided for transport home as required).
Any disciplinary matters arising from the event should be conducted confidentially and fairly, and any complaints from employees should be treated seriously.
In the unfortunate event that issues do arise (such as a complaint or allegations of misconduct), we recommend seeking advice from our team. Depending on the nature of the issue, an investigation may be appropriate, in which case it is imperative that the matter is correctly managed and risk is mitigated from the outset.
Norfolk Workplace Consulting’s experienced and licensed investigators can help you navigate the risks associated with disciplinary matters. Our investigators offer independent, thorough workplace investigations, ensuring that your sensitive workplace matters are handled with professionalism and integrity.
If you have questions about any of the above, please do not hesitate to contact us.