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Planning a Christmas or New Year shutdown? Now is the time to make sure your employee notice is sorted.
Shutdown rules vary depending on the award that applies, so now is a good time to check the requirements and get the necessary notice out.
Most modern awards now include a standard shutdown clause, and the 28-day notice rule applies to awards like the Manufacturing and Associated Industries and Occupations Award, the Health Professionals and Support Services Award, the Clerks Private Sector Award, and the Professional Employees Award. Under these, a business intending to temporarily shut down all or part of its operations generally needs to give affected employees at least 28 days’ written notice of the shutdown period.
This applies even if you’ve run the same shutdown every year for years. Long-standing practice on its own doesn’t meet the notice requirement, so it’s worth treating this as something to formalise properly each year rather than something that looks after itself.
A specific note for building and construction clients
The Building and Construction General On-site Award requires a longer notice period than the standard 28 days. Employers under this award need to give two months’ written notice, and the shutdown can only be timed in conjunction with the Christmas and New Year period. For a typical Christmas closure, notice needs to go out in October to stay compliant, not November. If this is your award, this means acting now to meet your obligations.
A specific note for community services, disability and waste sector clients
The SCHADS Award and the Waste Management Award don’t include a shutdown clause at all, and they’re two of a number of awards that are silent on this rather than the only ones, so it’s worth checking your own award rather than assuming coverage either way. There’s no award-based right to direct staff to take annual leave over a Christmas closure under these awards. If you want to run a shutdown, you’ll need to reach agreement with affected staff directly, both on the shutdown itself and on them using annual leave (or another arrangement) to cover it, rather than issuing a one-sided direction.
If your employment contracts already include a clause about leave during a shutdown, that’s a useful starting point but not a substitute for this. Whether such a clause holds up on its own is genuinely unsettled, so it’s still worth getting the employee’s agreement in writing closer to the time.
Working from an enterprise agreement?
If any of your staff are covered by an enterprise agreement rather than an award, the 28-day model clause doesn’t apply to them. You’ll need to check the specific shutdown or leave provisions in that agreement instead, as they can differ from the award requirements.
What this means in practice
You’ll need to put the shutdown dates in writing to affected employees, within the notice period that applies to your award.
Any direction to use paid annual leave during the shutdown also needs to be in writing, and it needs to be reasonable.
Employees can only be directed to use leave they’ve actually accrued. Directing someone to take unpaid leave or leave in advance to cover a shortfall isn’t something you can do unilaterally, though you can still agree to it with them directly.
Not every award works the same way, so it’s worth confirming what applies to you rather than assuming the standard 28 days is universal.
Not every award works the same way, so confirm what applies to you rather than assuming the standard 28 days is universal. The Fair Work Ombudsman’s page on directing staff to take annual leave during a shutdown lets you select your industry and award to see the rules that apply.
If a new employee starts within the notice window, they’ll need notice as soon as reasonably practicable after they start.
If you require an agreement communication to be drafted for your business per your award, connect with our team at hello@fullcirclehr.com.au or via 0402 974 775.