Do you intend to shut down operations over the Christmas and New Year period this year?
If so, now is the time to start thinking about likely shut down dates and double checking your obligations in relation to employee entitlements during the shutdown.
Unfortunately, many employers mistakenly believe that:
This is not always the case.
The rules and requirements regarding periods of shutdown differ depending on the modern award or enterprise agreement that covers the particular employee.
Whilst some instruments contain provisions regarding annual shutdowns, this is not universally the case – and in situations where an award/agreement does not expressly provide an ability for an employer to direct an employee to take leave during a shutdown, in most cases the employer will not be able to do this.
In addition, where an employer is permitted to direct employees to take annual leave during a shutdown:
For employees that aren’t covered by an enterprise agreement or a modern award, you can only direct the employee to take leave if the direction is reasonable in the circumstances. Relevant considerations include:
The long and the short of it is, the situation regarding shut downs is sometimes a little complicated.
Employers should take steps NOW to:
Kristin Ramsey is a Director at Hynes Legal and heads up the firm's Employment and Workplace Relations team. She predominately acts for medium sized businesses in the hospitality, retail, health, fitness, franchising, engineering and aged care industries.
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