Employers often have to deal with unique workplace issues relating to the Christmas–New Year period and summer school holidays. So, with Christmas just around the corner, it is opportune to re-visit some of the more common employment-related issues that can occur.
Industrial instrument determines 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).
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 (as per s94(5) of the Fair Work Act), although provision may be made in the applicable modern award.
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’ 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 Section 114 of the Fair Work Act 2009. 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 2009 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.