To follow on from our original blog post on the changes to shut down provisions in the modern Awards, the changes mentioned have officially come into effect.

As of 1 May 2023, 78 Awards had a new clause inserted that changes the way businesses treat shut down periods (think, the time between Christmas and new year where you tell your employees you’re closing the doors for a well-earned rest).

Refresh my memory; what do the new rules mean?

At a high level, these changes mean;

• That employers may require employees to take paid annual leave during a period of temporary shutdown.
• Employers must provide their employees with at least 28 days of written notice of the shutdown (this may be reduced through agreement between employer and majority of impacted employees).
• The requirement to take annual leave during the shutdown must be reasonable.
• An employee who does not have a sufficient amount of paid annual leave to cover the whole period can form an agreement with the employer for other options for the days not covered by paid annual leave, including.
  • Using accrued time off (TOIL)
  • Annual leave in advance, or
  • Leave without pay

I’d like to stress that the above is a generalisation of the rules, and each Award may differ slightly.

Which specific Awards are impacted.

There are A LOT of Awards impacted by this inclusion, all of which are listed below (as per the Fair Work Ombudsmen website).

• Aboriginal and Torres Strait Islander Health Workers and Practitioners and Aboriginal Community Controlled Health Services Award
• Aircraft Cabin Crew Award
• Airline Operations–Ground Staff Award
• Alpine Resorts Award
• Aluminium Industry Award
• Ambulance and Patient Transport Industry Award
• Animal Care and Veterinary Services Award
• Aquaculture Industry Award
• Asphalt Industry Award
• Banking, Finance and Insurance Award
• Broadcasting and Recorded Entertainment Award
• Building and Construction General On-site Award
• Business Equipment Award
• Car Parking Award
• Cemetery Industry Award
• Cement, Lime and Quarrying Award
• Cleaning Services Award
• Clerks—Private Sector Award
• Coal Export Terminals Award
• Commercial Sales Award
• Concrete Products Award
• Contract Call Centres Award
• Educational Services (Post-Secondary Education) Award
• Electrical Power Industry Award
• Electrical, Electronic and Communications Contracting Award
• Fitness Industry Award
• Food, Beverage and Tobacco Manufacturing Award
• Gardening and Landscaping Services Award
• Gas Industry Award
• General Retail Industry Award
• Graphic Arts, Printing and Publishing Award
• Hair and Beauty Industry Award
• Health Professionals and Support Services Award
• Higher Education Industry—General Staff—Award
• Horse and Greyhound Training Award
• Hospitality Industry (General) Award
• Hydrocarbons Industry (Upstream) Award
• Joinery and Building Trades Award
• Journalists Published Media Award
• Legal Services Award
• Local Government Industry Award
• Manufacturing and Associated Industries and Occupations Award
• Meat Industry Award
• Mining Industry Award
• Mobile Crane Hiring Award
• Miscellaneous Award
• Nursery Award
• Nurses Award
• Oil Refining and Manufacturing Award
• Pest Control Industry Award
• Pharmaceutical Industry Award
• Plumbing and Fire Sprinklers Award
• Poultry Processing Award
• Premixed Concrete Award
• Professional Employees Award
• Racing Clubs Events Award
• Racing Industry Ground Maintenance Award
• Real Estate Industry Award
• Registered and Licensed Clubs Award
• Restaurant Industry Award
• Road Transport (Long Distance Operations) Award
• Road Transport and Distribution Award
• Salt Industry Award
• Seafood Processing Award
• Security Services Industry Award
• Silviculture Award
• Storage Services and Wholesale Award
• Sugar Industry Award
• Supported Employment Services Award
• Surveying Award
• Telecommunications Services Award
• Textile, Clothing, Footwear and Associated Industries Award
• Timber Industry Award
• Vehicle Repair, Services and Retail Award
• Water Industry Award
• Wine Industry Award
• Wool Storage, Sampling and Testing Award.

What should we do from here?

It is critical to understand which Award your employees fall under, to be able to understand the exact requirements. Don’t forget – you may have multiple Awards that apply so please check the rules in each of them. Since the introduction of the Miscellaneous Award, there are minimal situations where there won’t be Award coverage, so please do your due diligence and confirm if any coverage applies. (If you need help, we got you!)

From here, we recommend checking your internal documents – contract of employment, employee handbook, company policies – to ensure that your existing documents do not breach these new requirements.

You may also choose to pay careful consideration to annual leave requests throughout the year in order to manage the number of employees who may have low leave balances for any planned shutdown periods. Perhaps you may even consider sporadic auditing of leave balances to create early awareness of any low balances that may pose a risk.

Finally, we recommend investing in a suite of templates to help protect you from non-compliance with these new rules such as;

• A shut down notification template to go out at least 28 days in advance to notify employees of the exact dates;
• An agreement to take a period of unpaid leave template; and
• An agreement to take leave in advance template inclusive of a robust clawback clause allowing employers to without amounts from final pay in the event the employee doesn’t accrue the balance back

If you need any support with the development of the above documents or with checking your Award compliance, don’t hesitate to reach out to HR Gurus to make things simple!

Written by Maddie Bray – HR Guru