gearing up to shut down for 2023: is your business ready?
start planning for your Christmas and New Year shutdown period
TL;DR: Following recent changes in the law, for some employees, you may not be able to direct them to take unpaid leave (you now require their agreement).
With the big retailers already selling Christmas merch 🎅🏻 (it seems to be happening earlier every year, right?), it’s a timely reminder to start planning your business’ Christmas and New Year shut down period.
For award-covered employees
If your employees are covered by one of the 78 applicable modern awards, you can no longer direct employees to take unpaid leave during a shut down (the rules changed on 1 May 2023 🔔).
Moving forward, you will need an employee’s agreement for them to take unpaid leave during a shutdown period.
Additionally, you need to check the applicable modern award for the notice period required ahead of the shutdown period (typically its 28 days’ written notice). ⏳
If your employees don’t have enough annual leave to cover the Christmas and New Year shut down period, you need to check the applicable modern award for requirements/restrictions around managing leave during this period (including excessive annual leave).
If the employee does not agree to take leave during the period, they will be entitled to payment during this period.
For award-free employees
You may direct award-free employees to take a period of paid annual leave during the Christmas and New Year shutdown, if the requirement is ‘reasonable’.
Typically, with trading/operations ceasing over the Christmas New Year break, a direction to take annual leave will be considered reasonable. You should, however, always provide sufficient written and verbal notice and consider the needs of your employees when issuing a direction.
Lastly, don't forget to check with what your employment contract provides (i.e. unpaid leave by agreement).
👉🏼 your action items
With the recent changes, now is a good time to review your leave policy, to ensure it is still compliant.
Whether you engage award/enterprise agreement-covered employees or not, start planning communications for the Christmas and New Year shut down period. We also suggest getting line managers involved in workforce planning and managing staff leave. To comply with the 28 time notice period requirement, these comms will need to go out in the next week.
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This information has not been prepared with your specific circumstances in mind, and may not be suitable for your business. This information is provided for your reference only and does not constitute the provision of legal advice or other professional advice by in house nous. By relying on any information on this website, you assume all risk and liability that may result.
