The end of the year will be here before you know it, and although you likely have a long list of work to get done before then, here are some important reminders to ensure you are on top of your year-end responsibilities and you have a smooth start to the new year (HR-wise at least).
Christmas Closedown Requirements
If you are closing your office or business (or part of it) between Christmas and New Year or either side of this time you MUST notify the affected staff 28 days prior to your close date.
This is a new requirement under the Fair Work Act 2009. Even if you have a clause within your employment contract covering this, you should ensure you notify all affected staff of the exact shutdown dates (via email is acceptable).
If an employee doesn’t have enough paid leave to cover the shutdown period you can agree with them to either:
- Take leave without pay
- Offer annual leave in advance (ensure you have a payback agreement either in your employment contract or a separate document which gives their approval for you to take any negative leave balance out of their final pay in the event they terminate prior to rebuilding their balance out of negative).
Employees will be required to be paid for any public holidays during the shutdown period that fall on days they normally work.
Whilst Sex Discrimination laws have been in place for many years in Australia, the focus of the legislation has been to protect people from unfair treatment on the basis of their sex, sexual orientation, gender identity, marital or relationship status ensuring pay and equal employment opportunities, it also prohibits sexual harassment and requires the investigation of instances of sexual harassment if and when it occurs.
The new Respect@Work laws which take effect on 6 December 2023 and changes the wording of the legislation to introduce a positive duty on businesses to take all reasonable and proportionate steps to eliminate all forms of sexual harassment from their business. This also includes instances of sex discrimination, sex-based harassment, conduct that creates a hostile workplace environment, and victimisation.
Business owners and managers need to evaluate all parts of their organisation to ensure where there is a likelihood (or perceived likelihood) of sex based harassment, discrimination or victimisation, that actions are put in place to either eliminate, or significantly reduce it.
This will involve not just having a policy statement or clause in your employment contracts, but will be required to be imbedded into all parts of your business from induction, training, policy development, recruitment and promotion activities, along with your business culture.
There are some great resources at https://www.respectatwork.gov.au/ or contact GPHR for information specifically regarding your specific business needs.
End of Year Functions
Interestingly a number of companies are coming out and saying they will not be having a Christmas Party this year as the risks are just too high.
Others are now saying the Christmas Party is the perfect opportunity to showcase just how well you are meeting your Respect@Work obligations.
If you are having an End-of-Year event there are a few must do’s.
- Inform the team in advance of what they can expect leading up to the end of the year in the office and details of the Christmas Party.
- Review and distribute your company code of conduct.
- Set behaviour expectations and responsibilities prior to the event reminding staff that as a work-sanctioned event and company rules remain in place.
- Remind staff of dress requirements
- Remind everyone that bullying and harassment and workplace health and safety obligations still apply regardless of where the party takes place OR where it ends up.
- Ensure your managers know their responsibilities to enforce the code of conduct and behaviour expectations, and what they need to do if things look like they are going ‘pear-shaped’. Your managers have additional responsibilities under the Workplace Health & Safety laws which will also be applicable at an end-of-year event.
- Remind all staff that failing to address issues or incidences that in the normal course of business would be seen as unacceptable could be construed as condoning such behaviour.
- Encourage staff to advise in advance whether they need assistance to keep their alcohol consumption in check (some medications amplify the effect of alcohol).
- Provide alcohol-free alternatives are available and check in with staff who have asked for support.
- Make sure if you are not at a licensed venue that alcohol is served responsibly and that binge drinking and drinking games are avoided.
- Ensure plenty of food is made available throughout the duration of the event.
- Have a safe transport plan for employees leaving the venue. Taxi vouchers, reimburse for Uber trips etc.
- Clarify that for those continuing the festivities to another venue, while not company sanctioned, it could still be considered ‘work-related’ for Harassment and Work, Health and Safety obligations.
It is also a good idea to send an email or text message to all staff the next day, wishing them a Merry Christmas and making yourself available for a debrief if they need it or to report anything they are not comfortable with.
Pre-2010 Agreements (‘Zombie Agreements’)
Any Enterprise Agreement created prior to 2010 automatically terminated on 7 December 2023 unless an application was made to the Commission to extend the default period for the agreement.
Many of these pre-2010 agreements have been replaced by another Enterprise Agreement, apply to businesses, worksites that no longer exist, or employees that no longer work for you. Most have clauses or coverage that no longer meet the Better Off Overall Test (BOOT) requirements applicable to new Agreements.
If you have one of these agreements and did not extend it, you need to consider any employee who works under the terms of this agreement and consider what their employment conditions are going forward. Many will automatically default to a Modern Award, and you will need to consider payroll impacts of the Award.
Remember that paying above minimum wage does not exempt you from the requirements under the Award unless it is clearly documented AND you have agreement from the employee.
The Fair Work Commissioner’s list of possible ‘zombie agreements’ can be found here.
New Rules for Fixed Term Contracts
From 6 December 2023, there are new rules for when an employee is engaged on a fixed-term contract and new rules if that fixed term is to be extended (or a consecutive contract offered).
A fixed term contract sets out a specific period of employment (a maternity leave contract for example may have a set period of 12 months, or the employment of someone for the completion of a specific project may have a deadline after which the contract will end).
Employees engaged under a fixed term contract must be given a Fixed Term Contract Information Statement (FTCIS) and if they are new to your business they should also be given the Fair Work Information Statement (required for all new employees).
There are 3 main rules regarding fixed term contracts:
- Time Limitations – a fixed contract cannot be longer than 2 years
- Renewal Limitations – cannot be extended or renewed more than once and the initial contract coupled with the extended period cannot be longer than 2 years
- Consecutive Contract Limitations – you cannot employ someone on a new fixed term contract if, the contract is mainly the same work as a previous fixed term contract or permanent position they held, particularly if there isn’t a substantial break in the employment relationship between the previous and new contracts.
There are some exceptions the to above conditions including where the employee under a fixed-term contract has specialised skills, is an emergency or essential worker or is paid above the high-income threshold. Those employed under a government-funded contract and/or are in a governance position may have exemptions on the time and/or renewal limitations. Apprentices and trainees, for example, are able to receive a fixed term contract equal to the length of their apprenticeship or training agreement.
If you have a special or interesting scenario or need and you are not sure whether these rules will apply to you, please get in touch with us.