Workplace law and the Christmas quiet

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The Christmas and new year period can be the quietest time of the year. But managing staffing needs (or lack of them) has some legislative limits. By PETER VITALE.

By Peter Vitale

IR law over christmas period

For many businesses, the Christmas and new year period can be the quietest time of the year. Managing staffing needs (or lack of them) has some legislative limits.


Businesses over the end-of-year quiet period can face the difficulty of having staff come to work with few productive tasks to occupy their time.

Some businesses can “soak” up this excess capacity or use it for housekeeping tasks, such as maintenance or stock take. But what happens if you really have very little for anyone to do?

Historically, many awards and industrial agreements gave the employer the option of directing employees to take annual leave during an annual close down period. Any employer considering this course should obviously understand exactly what their obligations are, for instance to give notice to employees.

But the Workplace Relations Act has two provisions that employers may find suitable for their circumstances.

For full time permanent employees who have more than eight weeks leave accumulated, an employer can require the employee to take up to 25% of the accrued leave.

Employers that have a shut down over the Christmas period, or indeed any other period of the year, can direct employees to take annual leave during this period, provided the employee has the leave accumulated.

Awards and agreements may provide for the employee to take leave which is yet to be accrued, so employers need to be wary which agreement, award or act applies (applying the “more generous” test under the Workplace Relations Act).

Labor IR law details emerge

More solid details are beginning to emerge about the Labor Government’s industrial relations legislative program. A cabinet meeting yesterday approved measures to begin implementing the Government’s industrial relations policy. The Rudd cabinet approved the preparation of legislation, for introduction into the Parliament in February, which would:

  • Prevent employers and employees entering into any further Australian Workplace Agreements. There has previously been speculation about when precisely the axe might fall on AWAs, but it appears that they will be around until the legislation passes both houses of Parliament. This includes a Senate still controlled by the conservative parties until 1 July 2008.
  • The Fairness Test, which has been the source of great administrative frustration for employers and employees, will be abolished and replaced by a “genuine no disadvantage test”. Whether this amounts to much more than cosmetic changes to the law remains to be seen. The trick for the Government will be to streamline the process.
  • The Australian Industrial Relations Commission will be given until the end of 2009 to streamline awards. The president of the AIRC, Justice Geoffrey Giudice, has already said that this timetable will be “tight”.


Peter Vitale, principal, CCI Victoria Legal


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