Dec 2017 Hospitality Review - Dig

Managing Christmas and NewYear Holidays

The Christmas-New Year period and summer school holidays raise the same dilemmas each year for members. With less than a month to Christmas, some of these issues may have already surfaced. Recent enquiries to the Tasmanian Hospitality Association include: • whether to close down during the Christmas-New Year break • public holidays (such as which days are holidays over the period); the effect they have on a period of paid annual leave, and payment for work on a holiday • requests by employees for annual leave, and • the right of an employer to direct an employee to work on a public holiday. The following is a summary of the provisions of the Fair Work Act in relation to these issues. Taking annual leave – close down An employer may be unsure of the right to close down a business over the Christmas-New Year period and send employee on annual leave. This can also cause employees to become disgruntled when no prior warning is given by an employer of a close down. While the Fair Work Act prescribes annual leave is to be taken for a period agreed to between an employer and an employee, it can be permissible for an employer to send employees, or a section of employees, on annual leave in certain circumstances. Award/Agreement-free employees In the case of award/agreement-free employees, the Fair Work Act (s94(5)(ii)) provides that a requirement to take paid annual leave may be reasonable if, for example, an employer’s business is being shut down for a period, for example between Christmas and New Year. The applicable modern award, enterprise agreement or contract of employment may contain terms that provide for an annual close down. Award-covered employees Most modern awards contain terms which allow an employer to send employees on annual leave under specific circumstances, such as a close down. Such terms, for example, are provided in Clause 34.3 Hospitality (General) AWARD 2010 which states an employer may require an employee to take annual leave as part of a close down by giving four weeks’ notice. As terms relating to annual close down may differ, such as the required period of notice, reference should be made to the applicable modern award to determine the conditions under which a close down may be taken. Annual leave requests An employer may receive an increased number of requests from staff for annual leave over the Christmas-New Year period. Under the Fair Work Act (s88 (2)), an employer cannot unreasonably refuse to authorise an employee’s request to take annual leave. With respect to the terms of a modern award or enterprise agreement (s93 (3)), in assessing the reasonableness of a requirement or direction to take annual leave, it is envisaged that the following are all relevant considerations: • the needs of both an employee and an employer’s business • any agreed arrangement with an employee • the custom and practice in the business • the timing of the requirement or direction to take leave, and • the reasonableness of the period of notice given to an employee to take leave. For example, refusing an employee’s request to take annual leave may be reasonable where an employee is required to perform core maintenance or safety or other essential duties while other employees are absent from work, or the employer’s business has closed operations because of business requirements. Declared Public Holidays The Fair Work Act (s115) is applied in conjunction with state and territory public holiday laws in determining which days are declared a public holiday, or part-day holiday, for the relevant state or territory. The following are the declared public holidays, and part-day holidays for Tasmania over the Christmas and New Year period 2017-18 and also includes Australia Day 2018:

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enquiries@tha.asn.au 03 6220 7300

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