Minister's warning on Christmas working hours

19/12/01 Employers should carefully consider their obligations and ensure their employees are correctly informed about working arrangements over the Christmas period, Consumer and Employment Protection Minister John Kobelke said today.

19/12/01
Employers should carefully consider their obligations and ensure their employees are correctly informed about working arrangements over the Christmas period, Consumer and Employment Protection Minister John Kobelke said today.
"Many employees in Western Australia are covered by an award or agreement that provides a penalty payment for working on public holidays," Mr Kobelke said.
"The Department of Consumer and Employment Protection is often asked about correct payments and working arrangements at this time of the year.
"Christmas Eve and New Year's Eve are not prescribed as public holidays, and this year they both fall on a Monday. The designated public holidays for the Christmas-New Year period are Tuesday, December 25 and Wednesday, December 26, and Tuesday, January 1, 2002.

"Employers should check the relevant award, industrial agreement, workplace agreement or contract of employment they have operating at their workplace to ensure that employees know their entitlements and the working arrangements for this Christmas period."
Mr Kobelke said that if employers had any doubts they should contact Wageline on 1300 655 266. The department's Internet site at http://www.doplar.wa.gov.au also provided information about wages and conditions of employment.
The department has prepared a useful guide to employment arrangements over this period, which is available from the web site.
Minister's office: 9222 9211
EMPLOYER GUIDE FOLLOWS:
RIGHTS AND OBLIGATIONS OVER CHRISTMAS/NEW YEAR
1. What days are public holidays over the Christmas/New Year period?
The Public and Bank Holidays Act 1972 (WA) provides for the following public holidays:

Christmas Day - Tuesday December 25, 2001
Boxing Day - Wednesday December 26, 2001
New Year's Day - Tuesday January 1, 2002
2. Can workers be required to take annual leave for a Christmas/New Year close down?
You can reach an agreement with your employees for them to take annual leave during a close down period. However, if there is no formal agreement such as an award, industrial agreement, workplace agreement or contract of employment which authorises a close down, an employer has no right to require an employee to take leave during a close down period.
Some awards have specific clauses that provide for an annual close down period. Examples include the Shop and Warehouse (Wholesale and Retail Establishments) Award, the Furniture Trades Industry Award and the Clothing Trades Award. Such clauses often require an employer to provide notice of their intention to place employees on annual leave or leave without pay.

    3. Can a worker require additional wages for working on New Year's Eve or a public holiday?
    Many employees are covered by awards, industrial agreements, workplace agreements or contracts of employment that provide for penalty rates for working on a public holiday.
    There is no general obligation to pay penalty rates for working on New Year's Eve. However, if an employee works after midnight and into January 1, 2002, there may be an entitlement to penalty rates for the public holiday. You will need to refer to the provisions of the relevant award, industrial agreement, workplace agreement or contract of employment.
    4. Can employees be required to work on New Year's Eve or a public holiday?
    Full-time and part-time employees
    You can roster full-time and part-time employees on to suit the requirements of your business, to the extent that you are authorised to do so under the relevant award, industrial agreement, workplace agreement or contract of employment.
    Casual employees
    Unless you have reached agreement for a casual employee to work on New Year's Eve or a public holiday, you cannot direct a casual employee to work.
    Casual employees are generally employed on a series of separate and distinct employment contracts. The law views these arrangements as finishing at the end of each period of employment, after which neither party has any further legal employment commitments to one another.
    In practice, many casual employees are engaged on a continuing basis. You may request that a casual employee work on New Year's Eve or a public holiday, but you have no contractual right to direct the employee. Similarly, the casual employee has no contractual obligation to comply with a request to work on New Year's Eve or on a public holiday.
    5. Can an employee be required to be on stand-by on New Year's Eve or on a public holiday?
    An employee can only be required to be on stand-by on New Year's Eve or on a public holiday where it is authorised under the relevant award, industrial agreement, workplace agreement or contract of employment.
    6. Is there anything an employer can do to increase the likelihood that an employee rostered to work on New Year's Eve or a public holiday will attend for work?
    There are steps that can be taken to encourage workers to attend for work on New Year's Eve or a public holiday. It is advisable for you to meet with your employees to discuss arrangements well in advance and you should ensure that both parties have a clear understanding of each other's expectations.

    Conditions of employment, including any penalty rates, will usually be contained in the relevant award, industrial agreement, workplace agreement or contract of employment. You also have the option of providing incentives for employees to ensure attendance on New Year's Eve or a public holiday, such as the payment of bonuses or additional time off in lieu.
    7. What happens if a worker fails to attend for work if rostered on New Year's Eve or a public holiday?
    Full-time and part-time employees could be found to have breached their contract of employment by failing to attend for work if rostered.
    The consequences of this action for the employee will depend on the individual circumstances, and would be subject to any relevant legal restraints (eg unfair dismissal laws). Whether dismissal is justified will depend on the particular circumstances of each case. An employer who may be contemplating dismissing an employee because of an absence on New Year's Eve or a public holiday, should consider seeking legal advice.
    For further information on State and Federal wage rates and employment conditions in the private sector you may wish to contact Wageline on 1300 655 266 or check the department's Internet site at http://www.doplar.wa.gov.au