As most of us gear up for a well-deserved break from work to rest and spend time with family and enjoy plenty of good food, for those of us responsible for managing staffing levels and employees, it can also be a complex and costly period.

Whether you’re shutting down over the break, running a skeleton crew or even if it’s the busiest time of year for your business, proper forecasting of your staffing levels to meet your operational needs is critical to ensuring that you can enjoy some time to relax over the break.

With that in mind, here’s a few key things to remember in the lead up to the holiday break.

Leave and Christmas Shutdown Issues

Earlier this year, the Fair Work Commission introduced new shutdown rules in 78 Modern Awards. Employers no longer have the right to direct employees to take a period of unpaid leave over the shutdown period. Previously, if the employee had insufficient annual leave to cover the entirety of the shutdown period, they could still be directed by the employer. Now, employers can direct employees to take paid annual leave during a temporary shutdown, so long as the direction is ‘reasonable’. The changes apply to permanent full-time and part-time employees and does not apply to casual employees.

If you’re shutting down operations over the festive season or through January next year, you must provide at least 28 days written notice to employees of the intended shutdown period.

What if an employee does not have enough annual leave accrued?

The employee and the employer can agree that the employee:

·        take annual leave in advance; or

·        take unpaid leave.

Where an agreement cannot be reached, the employer:

·        can choose to allow the employee to work (if practicable); or

·        agree to pay the employee their entitled wages.

Employers must check their relevant Award(s) for specific requirements.

Can employers direct an employee to use excessive leave?

In some cases, you can direct employees to utilise excessive accrued leave entitlements, including annual leave, rostered days off (RDOs) or excessive amounts of Long Service Leave. There are considerations around such directions, and employers will need to check the relevant policy or Award(s) before directing employees to take excessive leave.

Public Holidays

In South Australia, 7pm till 12 midnight on Christmas Eve (24th) and New Year’s Eve (31st) are deemed public holidays and therefore public holiday penalty rates apply for work performed by employees covered by an Award or potentially an Enterprise Agreement. Christmas Day falls on a Monday, Boxing Day / Proclamation Day (26^th) falls on a Tuesday and New Year’s Day falls on a Monday this year. For industrial purposes, the Sunday provisions contained in an Award or Enterprise Agreement will generally prevail over the public holiday provisions unless stated otherwise.

New Positive Duty and Expected Behaviour at Work Functions

Many of us will get to enjoy workplace festivities in the lead up to the Christmas holiday period. While these are fantastic events, it’s important to monitor behaviour at workplace Christmas parties or work endorsed activities. Under the Sex Discrimination Act 1984 (Cth), employers have a positive duty to take reasonable and proportionate steps to eliminate poor conduct at Christmas functions. From 12 December 2023, the Australian Human Rights Commission’s powers of investigation and enforcement with respect to the positive duty will commence. This is all the more reason to be prepared and is just in time for many workplace Christmas events!

What reasonable and proportionate steps can employers take to eliminate risks?

Employers must educate and reinforce expectations, making it clear to employees what respectful behaviour looks like. Outlining these expectations and the need to comply with workplace policies, such as through a behaviour email or refresher training, prior to festivities is highly recommended. Employees should be reminded that the event does not grant permission for actions they would not otherwise do in the workplace.

If free alcohol is provided, employers should consider the length of time that it is provided as well as the sanctioning of ‘pre-drinks’ and ‘after parties’ not being endorsed by the employer. At the event, have at least one ‘responsible manager’ who can identify, monitor and address issues such as behaviour of staff, alcohol consumption and any safety issues that may arise.

Employers “should give consideration to whether the location they choose for work functions is one which all employees feel comfortable attending. They should also give consideration to whether the service of alcohol is necessary or even an appropriate element of work-related events given the poor judgement often associated with the consumption of alcohol. If alcohol is a necessary element of the event [the employer] should ensure that its employees are safe during the course of the event, that there is a clear conclusion to the event and that the safe departure of employees is facilitated” (John Keron v Westpac Banking Corporation [2022] FWC 221). Thorough preparation, effective communication prior to the event, enforcement of appropriate behaviour during the event and (if needed) prompt resolution of any problems or complaints after the event can ensure a successful event.

Secret Santa

While Secret Santa gift exchanges are generally seen as harmless and a fun activity, there is a possibility that gifts may cause offence, either unintentionally through the giver’s ignorance or with a deliberate intention to intend. Such a potentially hostile working environment can give rise to various issues. For instance, the recipient of an inappropriate gift might perceive it as a form of bullying, potentially leading to claims or harassment or discrimination. Employers may consider communicating expectations regarding gifts by sending out a written reminder or memo to employees.

Mental Health Support

The holiday season can often bring heightened stress, with potential increases in workloads, family commitments, and expenses. Employees may not always want to speak up, but proactively addressing mental health and taking the time to check in and provide resources, can foster a more positive workplace environment. It is important to recognise that not everyone will want to celebrate or engage in work events, and that’s perfectly acceptable. 

If you have any questions preparing your business for a shutdown period, please contact Cecilia White and the team at Perks People Solutions.