Blackout periods and seasonal casuals: tips and tricks

While we may only be halfway through the year, it is generally time to start planning for seasonal periods and how to best cover increased staffing needs. The general solution businesses turn to is enforcing blackout periods for their permanent staff and engaging casuals to cover the busy months. In light of recent cases and proposed changes to legislation we examine the validity of these practices and provide some best practice tips.

Blackout periods

Earlier this year, the case of CFMMEU v OS MCAP Pty Ltd [2023] FCAFC 51 provided a firm reminder to employers that they cannot just roster employees on public holidays, but must first request that employees work public holidays. This case has raised questions around holiday periods and whether employers can enforce blackout periods to blanket deny annual leave requests to ensure they have sufficient coverage.

A recent decision has confirmed employers’ ability to have blackout periods. Within Barresi v Harris Scarfe Pty Ltd [2022] FWC 3293, an employee sought to request annual leave for 22 December 2022 to 30 December 2022. Being the Christmas period, the employer had a ‘blackout’ period in place where generally any request for annual leave would be refused. Resulting from the blackout period, the employee’s request for leave was denied.

The employee, via her union, raised a dispute to assert the refusal was unreasonable. The employee raised that she had made a timely request, that it was the only time her partner could take off, that it was her birthday, and that bookings had been made. The employer argued that the refusal was on reasonable business grounds, given the nature of the Christmas period and the staffing needs required. The Commission found in favour of the employer, holding:

The company has a “blackout period” of which the Applicant was well aware. As observed by Cambridge C, certain business operations have particular periods of high demand or activity during which leave requests would not usually be approved. A decision to refuse a request for annual leave which is based upon genuine, sound business reasons would not usually be held to be unreasonable.

Resulting, this means that employers can enforce blackout periods, however, if these periods include public holidays, then employers will still need to request employees work on those specific days.

Seasonal casuals

Casual employees can be a good method of supporting stores with staff over high-demand periods. As casuals are indeed casual, consideration needs to be had as to the flexibility of hours over the guarantee of having the person attending work. Just as employers can offer or cancel shifts, casual employees can accept or reject shifts. This generally drives a need to have a large and varied casual pool to account for those who may reject shifts.

In the same vein, employers may wish to have consideration as to whether casuals are truly the support they need, or if a temporary but permanent solution (such as a fixed-term part-time/full-time employee) is more appropriate. In this respect, some employers erroneously refer to casuals engaged for seasonal periods as ‘fixed-term casuals’ and/or setting fixed-term dates in their contracts. Generally, this comes with the risk of casuals not being viewed as casuals given it may appear that they have guaranteed work. If engaging employees as casuals, it is important that their contracts truly reflect a casual relationship.

Finally, is the question of what to do once the seasonal period is over. The option for employers is to either terminate the casual relationship or if they wish to retain the employee, keep the employee as a casual or offer them permanent employment. If employers retain casual employees, it is important to remember obligations that may arise and to monitor the hours worked, where a casual who works regular and consistent hours may need to be considered for casual conversion after 12 months.

Learn more

One way to ensure that you are meeting your obligations as an employer is by attending the ‘Christmas casual recruitment: Tips and tricks for engaging Santa’s helpers’ webinar hosted by NRA Legal’s experts on 8 August 2023 at 12:00pm. This webinar will provide practical insights into recruiting for the Christmas period, with opportunities to have your questions answered. Register here to secure your spot.