End of Year Countdown!

End of Year Countdown!

With only 21 days until Christmas, the silly season is well and truly underway.  While this is often a joyous time for many, it can also be stressful managing annual leave expectations.  For some employers, the Christmas period is a time to take a break and recoup while for others this is the busiest time of the year.

Regardless of whether your business is shutting up shop or whether you are trading during the Christmas mayhem, below are a few common questions that we frequently receive regarding managing employees during the Christmas period.

1. Do I have to pay my employees for public holidays (even if they are on annual leave)?

 The short answer is yes, if the public holiday falls on a day the employee would have ordinarily worked!  If the employee would ordinarily have worked on a public holiday but for the business being closed on the public holiday or if the employee is on annual leave at the time of the public holiday, then you will need to pay the employee at their ordinary rate of pay and no deduction should be taken off their annual leave balance.  If your business is trading on a public holiday, you should refer to the relevant modern award or industrial instrument to ensure your employees are paid in accordance with the applicable public holiday penalty rates. If you are located in Queensland, South Australia or the Northern Territory you should also be mindful of part-day public holidays such as the newly introduced Christmas Eve public holiday in Queensland. You may also want to consider whether the public holiday may be substituted in accordance with the applicable modern award and/or industrial instrument.

2. Can I direct my employees to take annual leave for a Christmas shut down?

 You will need to review the relevant modern award or the applicable industrial instrument to determine whether it allows for the employer to direct employees to take annual leave as part of a close down of its operations.

Many modern awards contain a clause which allows an employer to direct an employee to take annual leave by giving notice in writing advising of the company’s intention to shut down for a period of time, such as the Christmas period. You should check the applicable modern award or industrial instrument to determine if and what minimum notice period is required.

In the event that a modern award or industrial instrument does not specify whether the company can shut down for a period of time, you cannot direct an employee to take leave.  You may, however, reach an agreement with an employee to take annual leave, such as annual leave in advance or unpaid leave during the shutdown period.  An employee cannot be forced to take unpaid leave, so if you cannot reach an agreement with the employee, you will need to pay the employee at their ordinary rate of pay for their ordinary hours during the shutdown period.

If your employees are award free or are not covered by any other industrial instrument, you can direct them to take annual leave if the direction is reasonable.

If you are unsure whether or not you can direct your employees to take annual leave or if your business is subject to the shutdown provisions, we suggest that you seek advice prior to issuing such direction to ensure that you do not breach your obligations at law.

3. Can an employer refuse an employee’s annual leave request?

 Yes, an employer can refuse an employee’s request for annual leave, provided that the refusal is reasonable in the circumstances. For example, if the Christmas period is a busy time for your business and you require the employee to work and cannot accommodate their leave in the roster, it may be reasonable to refuse an employee’s request for annual leave.

If you are unsure how to manage your employees during the Christmas period or if you have any questions regarding public holidays, annual leave requests or shut down periods, you should get in touch with our office!

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