Confused about staffing rules over the holiday period?

The end of the calendar year, in many sectors, is a chance to wind down and have a break, however in early childhood education and care (ECEC), many services operate 52 weeks a year, closing only on public holidays.

In such a varied landscape, employers can become confused about rules and regulations around leave, payment, rostering and other elements. 

The advice in the piece below is based on feedback from Sam Nottle, Senior Associate at employment law firm JewellHancock. Employers are encouraged to cross reference the advice provided against their own policies and procedures, and should understand that the information below is general in nature, and not specific to their circumstances. 

This story was published by SEEK and has been adapted to suit the ECEC sector. Access the original story here. 

If we close, do educators have to use their annual leave? 

For those services who do have a closure period over the Christmas/New Year period, many wonder if employees can be made to take this time as annual leave, while many educators, who may have been saving their leave for holidays or events throughout the year, have the same question. 

Generally, for award or enterprise agreement employees, these agreements will allow you to direct an employee to take annual leave during a shutdown period, Mr Nottle said. 

“Best practice would be to check the award or enterprise agreement, as it might include a required notice period (e.g. four weeks) to be given to the employee,” he added.

The two most common awards in the ECEC sector are the Children’s Services Award and the Educational Services Teachers Award, while the Victorian Early Childhood Teachers and Educators Agreement (VECTEA) is also used. 

In most common awards and enterprise agreements, employers can require employees to take a period of paid annual leave “in circumstances that are reasonable”.

“A requirement to take annual leave would be reasonable if the employer’s enterprise is being shut down for a period, say between Christmas and New Year,” Mr Nottle says. “It would be best practice for an employer to provide notice to the employee of at least a month.”

What if they don’t have enough leave to cover the break? 

“If an employee does not have enough accrued annual leave, it may be the case that the modern award or enterprise agreement provides for a direction to take unpaid leave,” Mr Nottle advised, recommending that employers “refer to the relevant provisions.”

If the award or enterprise agreement doesn’t address this issue or if the person is an award or enterprise agreement-free employee and the employment contract contains nothing on the issue, it’s unlikely that they can be forced to take unpaid leave for the period. “The employee would need to be paid their ordinary rate of pay during the shutdown period,” he added. 

It’s worth noting that a full-time employee must still receive their usual salary for the public holiday.

For more information about staffing and shutting down over Christmas and the New Year, visit Fair Work. This story was published by SEEK and has been adapted to suit the ECEC sector. Access the original story here. 

Information provided in this article is general only, does not constitute legal advice and should not be relied upon as such. SEEK provided no warranty as to its accuracy, reliability or completeness. Before taking any course of action related to this article you should make your own inquiries and seek independent advice (including the appropriate legal advice) on whether it is suitable for your circumstances.