The office Christmas party and Christmas New Year shutdown are two areas that need to be treated sensitively by employers and employees.
Safe Christmas Party tips
The office Christmas party season will soon be in full swing again. Employers should be careful not to let celebrations get out of hand. A few practical steps can help prevent any embarrassing incidents, disciplinary action and potential litigation:
1. Employees should be reminded in advance that workplace policies continue to apply and responsible behaviour is expected;
2. A finishing time for the office party should be made known beforehand;
3. One or more senior persons should be nominated to monitor the behaviour of staff at the party and intervene if unacceptable behaviour is occurring or about to occur;
4. Food and non-alcoholic and low-alcoholic drinks should be readily available and there should be a limit on the amount of alcohol available;
5. A safe means of transport such as a taxi should be arranged for any employees who have had too much to drink or who, if it is late at night, live a significant distance from the venue;
6. Good humoured pranks should be discouraged as they can all too often go wrong;
7. Supervisors should be alert to the risk of over familiar behaviour and inappropriate/insensitive talk;
8. An assessment of safety risks should be undertaken if the employer is hosting the party themselves. Alternatively, enquiries should be made to ensure a host venue has a safe environment and a good safety record;
9. It should be made clear that “after parties” are discouraged and not sanctioned by the employer;
10. If any incidents do occur, they should be addressed as soon as practicable after the party.
Christmas shutdown leave
Many businesses close down for the Christmas/New Year break. It is often assumed that employees can be directed to take annual leave over this period. Well, there is more to it than that. Any direction to award covered employees must comply with applicable award requirements. Recent amendments to a number of awards mean that 28 days written notice of the shut period must be given. A shorter period can be agreed between the employer and a majority of employees. A direction to take annual leave over a temporary shutdown period must be in writing and “reasonable”. For example, a shutdown for the whole of January probably will not be reasonable. This award based direction is not subject to the requirement to keep an annual leave balance of at least 4 weeks as is the case for excessive annual leave accrual directions.
What happens if an employee has insufficient or no annual leave to cover the shutdown period? Employees may agree but cannot be forced to take annual leave in advance. Employees may agree, but cannot be forced to take leave without pay over this period. Employers should be mindful of annual leave balances when agreeing to annual leave throughout the year. Otherwise, thought may need to be given to what work can be undertaken by an employee over the break. Employers and employees should be conscious that a dispute can be lodged with the Fair Work Commission if these requirements are not complied with. It is important to check the requirements of the applicable industrial award.
For non award employees, an employer can require an employee to take a period of paid annual leave but only if the requirement is reasonable. A shutdown between Christmas and New Year will generally be regarded as reasonable. Non award employees may agree in writing to take paid annual leave in advance but issues may arise if this ever needed to be repaid by the employee due to the restrictions on deductions in the Fair Work Act. A contractual clause requiring unpaid leave in the alternative may be helpful but practically, employers should still be mindful of annual leave balances during the year to make sure employees have a sufficient balance to cover the Christmas/New Year period. Employees should be mindful of these requirements when taking leave throughout the year.
Please contact us if you would like any further information or help.
Merry Christmas and Best Wishes for the New Year