Earlier this year, a full bench of the Fair Work Commission issued orders to vary modern awards which had annual shutdown provisions in them.

Historically, when there is an annual shutdown (for example over the Christmas – New Year period), an employee who did not have sufficient annual leave to cover the closedown period was automatically placed on leave without pay for any days other than those covered. by annual leave or public holidays.

Awards generally also had a period of notice applying for employers to give  employees prior advice of the dates of the shutdown generally ranging from 4 weeks to 2 months depending on the particular award.

So what has changed?

From 1 May 2023, these modern awards provide that:

• Employers must give employees written notice of the period of the shutdown at least 4 weeks/28 days prior to the shutdown (at least 2 months prior in the case of employees covered by the Building and Construction General On-site Award 2020, the Electrical, Electronic and Communications Contracting Award 2020 and the Plumbing and Fire Sprinklers Award 2020)
• That notice must also be provided as soon as is reasonably practicable after engagement for any new employee commencing within that period of notice
• Employers must provide advice in writing to each individual employee who will have to take annual leave because of the shutdown directing them to take annual leave for that period (and employees have to comply with that direction so long as it is reasonable and in writing)
• An employee who does not have sufficient annual leave to cover the closedown period may agree in writing to take leave without pay or to take annual leave in advance to cover that period of the shutdown which is not covered by annual leave.
• If the employee does not have sufficient annual leave to cover the closedown and does not agree in writing to take leave without pay or annual leave in advance, the employer has the options to either provide the employee with work for the period not covered by annual leave and public holidays or to pay then for that period without any deduction from leave entitlements.

If the employee does not have sufficient annual leave to cover the shutdown and does not agree in writing to take leave without pay or annual leave in advance, the employer has the options to either provide the employee with work for the period not covered by annual leave and public holidays or to pay then for that period without any deduction from leave entitlements.

Dealing with the effects

We have prepared an Annual Leave Management Kit to help employers to deal with what is now a very complex area of administration of employee entitlements with strict rules regarding accrual of annual leave, additional entitlements for shiftworkers, cashing in of annual leave, directions to take excessive annual leave, agreements to take annual leave in advance and the above arrangements for annual shutdowns.

There is a general version and a Construction/Trades version that is geared to the longer notification time required under construction/trades Awards.

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The Hon Tony Burke, the Federal Minister for Employment and Workplace Relations, has announced pending changes to the Fair Work Act to provide greater job security for workers who are engaged as casuals, essentially overturning legislation passed by the Morrison Government a couple of years ago.

So what is the real story?

A few years back, there were a couple of cases in the Federal Court where decisions were made that, notwithstanding the fact that an employment arrangement was described as casual in the employment contract, it was not really casual if the employee was engaged on regular and systematic hours and had a reasonable expectation of continuing employment.

The Morrison Government legislated to overrule those determinations.

There was also a subsequent High Court decision that overturned those rulings determining instead that the contract had primacy in determining whether or not a working arrangement was casual in line with the new legislative provisions.

The proposed amendments are intended to return us to the situation where the arrangement is determined on the basis of its true nature in practice rather than just on what might be written into the contract. Minister Burke has dubbed it ‘the what’s really going on test’.

Casual conversion

Through the legislation passed by the Morrison Government, the National Employment Standards were amended to provide casual workers with a right to request conversion from casual employment to permanent employment subject to certain conditions and generally based on a consistent pattern of hours over at least 6 months during a continuing period of employment of at least 12 months.

Prior to this, many modern awards already included rights for employees to convert from casual employment after 6 months of continuous employment and these provisions have been around for decades so it isn’t anything new, just the mechanics and the rules can change.

It sounds like the proposed legislation might reduce the required period of continuing employment back to 6 months before an employee can request casual conversion.

A bit of middle ground

We already have some benchmarks in place on this stuff for access to the unfair dismissal jurisdiction. A casual employee can access this jurisdiction if they have been regularly and systematically engaged on a continuing basis and have a reasonable expectation of continuing employment if:

• they have been employed for at least 6 months in a business with 15 or more employees or
• they have been employed fora at least 12 months in a business with less than 15 employees 

  Do we really need to create a different set of rules and timeframes for determining whether an employee is a real casual or not? 

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  Give us a call on 1300 108 488 to arrange your free first consultation to see how we can help with advice and support on this or any other HR matter