Staffing the silly season: Important considerations for employers

While other industries prepare to wind down for the year, things are only just starting to heat up for retailers across Australia.

As the festive season fast approaches, managers are encouraged to plan their rosters in advance to ensure their stores are adequately staffed to meet increased customer demand over the Christmas peak trade period.

In this article, we discuss the top three legal factors that managers, and HR professionals, should be mindful of when rostering employees across Christmas and New Year.

1. Temporary Closures

Like many modern awards, the General Retail Industry Award 2020 (Retail Award) contains provisions which dictate how an when an employer may direct an employee take annual leave over a period of temporary closure.

Where a business intends to temporarily shut down all or some of its operations over Christmas and New Year and requires affected employees to take annual leave during that period, clause 28.4 of the Retail Award stipulates that the employer must give the affected employees 28 days’ written notice of a temporary shutdown. It’s important to note that any direction to take annual leave must be reasonable.

2. Black Out Periods

It’s common for businesses to implement ‘black out’ periods throughout the year to ensure adequate levels of staffing across peak trade periods. Where a black out period has been designated by a business, employees are usually prohibited from taking annual leave.

While it is permitted to implement black out periods, section 88 of the Fair Work Act 2009 (Cth) (Fair Work Act) emphasises that employers must not ‘unreasonably refuse’ an employee’s annual leave request.

Unreasonable refusal of request for leave: Stevens v Horsley Park Supermarket Pty Ltd [2017] FWC 4626

In this case, an employee applied, in January 2017, to take annual leave during the employer’s Easter black out period (over 12 weeks prior to the leave commencing). Over the following months, the employee’s leave request was referred to a number of different managers, and at no point did the employer indicate that the employee’s request was denied. As such, the employee scheduled and paid for her overseas holiday to Thailand.

Just two weeks before the employee was due to go on her holiday, the employer advised the employee that her annual leave request was denied. Having already paid, the employee proceeded to take her holiday.

The employment relationship was ultimately brought to an end, with the employer arguing the employee had abandoned her employment. Although, the Fair Work Commission (Commission) later determined that the employee had been dismissed at the initiative of the employer.

In finding the dismissal to be unfair, the Commission explained that although the employer had implemented a black out period, it was still unreasonable to refuse the employee’s annual leave request, given the amount of notice provided and the employer’s failure to notify the employee that her request had been refused in a timely manner.

Reasonable refusal of request for leave: Barresi v Harris Scarfe Pty Ltd [2022] FWC 3293

In this case, the employee, in late August 2022, requested to take leave between 22 December 2022 and 30 December 2022 to celebrate her birthday with her daughter.

In early September, the employer refused the employee’s leave request citing that her request could not be honoured otherwise the business would have to honour all similar requests during their busiest trading period.

The employer argued that at the time of the application to the Commission, they didn’t have enough employees to cover the roster over the Christmas period and argued even if they hired more casual employees, they still needed experienced permanent employees to work their existing hours.

In upholding the employer’s decision to refuse the employee’s request for leave, Commissioner Lee stated that the reason for taking leave was not ‘significant’ enough to make the employer’s refusal unreasonable and that 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’.

3. Requests to Work Public Holidays

The case of Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd, handed down in early 2023, highlighted employers must request an employee to work on a public holiday and cannot simply roster them to work.

This landmark ruling came after BHP’s internal labour hire provider, OS MCAP Pty Ltd, was found to have breached section 114 of the Fair Work Act by requiring employees to work Christmas Day and Boxing Day, without prior consultation. The Federal Court highlighted that the National Employment Standards (which override contracts, modern awards, and enterprise agreements), mandate that employers make ‘reasonable’ requests to work public holidays.

In their decision, the judges affirmed that simply publishing a roster or drafting a clause within a contract stipulating that employees must work public holidays, will not constitute a request due to the ‘inherent power imbalance that exists between employers and employees’.

While employees can still be required to work on a public holiday, businesses are reminded that such a request must be reasonable given, among other things, the nature of the work, the notice provided to work, reasonable employer expectations, the type of employment, and level of pay.

Want to know more?

The National Retail Association is hosting a Christmas webinar on 19 November 2024 at 10:00AM (AEST) / 11:00AM (AEDT). Join Amy Lynes (Senior Workplace Relations Consultant) and Remy Atkinson (Lawyer) as they discuss how business can navigate the silly season compliantly, while avoiding common legal pitfalls. Register here.

Alternatively, if you have any questions about the contents of this article, please contact our Workplace Relations Hotline on 1800 RETAIL (1800 738 245).