Australia: An employers guide to winning during the World Cup

Employment Update - World Cup edition
Last Updated: 7 September 2011
Article by John Hannan and Sean O’Sullivan

As a nation one of our biggest concerns regarding the impending Rugby World Cup is whether or not the All Blacks will win the cup.

For many employers, the tournament brings with it concerns about employee absenteeism, lack of productivity, and internet misuse.

Absenteeism

What can and should employers do about unexpected or unauthorised absences during September and October? Taking a reasonable and consistent approach with all employees can help employers avoid workplace murmurs of discontent whilst ensuring there are still enough staff on board to put the scrum down.

Conflicting annual leave requests

There will be many workplaces where several employees have requested annual leave for the same period of time for RWC activities. The employer has to choose which annual leave requests to grant and they cannot unreasonably withhold consent to an annual leave request. What is reasonable will depend on the needs of the organisation, as well as the employee's needs. Withholding consent on the basis that employee numbers would be unworkable is arguably reasonable. If a selection process is involved (between several employee requests) employers need to ensure that they do not use discriminatory criteria when making the selection.

Employers should organise their annual leave rosters now by asking employees to submit annual leave requests for the entire RWC period as soon as possible. You need to know who is in your starting line-up.

Increase in sick leave

In some workplaces there will be an increase in sick leave. Historically, employers could only request proof of sickness within three days if they had reasonable grounds to suspect that the sick leave was not genuine. Now there is no requirement for 'suspicion' so any employer can request proof of sickness within three days at the employers cost.

Employers should remind employees of their sickness policy and that unexplained absences will be treated as sin-bin offences. Should repetitive or suspicious sick leave become an issue, employers can deal with the employee in question through a disciplinary process - we recommend that employers keep good absence records as evidence.

Lateness and delays

There will be increased traffic congestion and public transport delays in some areas leading to punctuality problems. If a salaried employee arrives at work late (through circumstances beyond their control) there is very little the employer can do. However, for hourly paid employees, the general proposition is 'no work no pay' - an employer is not legally bound to pay such employees if they are not at work. Although an hourly paid employee has no right to be paid if they are prevented from getting to work on time, employers may want to exercise discretion with regard to one off incidents or genuine involuntary delays. To avoid any nasty mauls later employers should tell employees what is expected from the kick off.

Issues at work

For those employers who employ staff during game time (mostly evenings) lack of productivity may become an issue. Many employees will be trying to watch the game at work or follow the live scores by using the employer's network. Many employers will already have a network usage policy that limits personal use. Employers can take one of two approaches here - loosen their rules for the RWC or tackle a hard line from the outset and explain that there will be no flexibility.

How to deal with lack of productivity? Providing employees with a RWC policy in advance of the tournament makes it clear to employees where the 'touch lines' are. Employers need a set of rules they can refer to and rely on if they need to discipline employees.

This needs to be applied fairly and consistently.

Issues outside of work

What is the key message for employees about the current culture in your work place? Is there an accepted culture of binge drinking and knock-ons at work functions?

Employers who have employees attending games or related functions should set levels of expected behaviour from the outset. It is a good time for employers to generally consider the standards they currently set. If necessary, employers should promote change before or during the RWC by sending a clear statement to employees of the new expectations and policies.

Don't expect changes immediately though - that midnight haka might still happen.

Employers can discipline employees for misconduct outside the workplace. However, there does need to be a relationship between the conduct and the employment. It is not a question of where the conduct occurs but rather its impact on the employer.

Recruitment

Many businesses will need to recruit additional staff to cope with increased demands during the RWC - more numbers in the lineout.

Temporary workers' employment agreements need to reflect the true nature of the employment arrangements. Employees who work 'as and when required' need a casual agreement. Those working long regular hours for the duration of the RWC but not before or after, need a fixed term agreement. Getting the drafting right is imperative with these agreements - mistakes in drafting can lead employees to be deemed permanent even if that was not the employer's intention. No-one likes a penalty.

In addition to the correct form of agreement, employers do need to get the content right. Terms relating to wages, holidays, place of work, hours and duties are mandatory (amongst others). For casual workers, employers can pay out annual holidays on a 'pay as you go' basis (8% of gross earnings on top of their wages). This must be agreed in advance with the employee.

Overseas nationals may present themselves for temporary employment. An employer must not employ a foreign national who is not entitled to work in New Zealand or entitled to work for that particular employer. This applies whether or not the employer knows that that the foreign national is not entitled to work. An employer must show that they took reasonable precautions and exercised due diligence to check whether the foreign national was entitled to work in New Zealand. Don't let this one go to the Video Ref.

Public holiday

The final of the RWC is being played at 9pm on Sunday 23 October. Monday 24 October is a public holiday. Those employees who work past midnight on the night of the final will work into a public holiday which means that their work on the Monday must be paid at a minimum payment of time and a half. Only the time actually worked past midnight attracts the time and a half payment; the work up till midnight can be paid at the normal rate.

Employees can request to transfer the whole of a public holiday so that it covers an entire shift rather than part of one. Public holiday entitlements are then payable if the employee works that transfer day. However, the employer can have a policy in place preventing the transfer of public holidays to another day - we recommend that such a policy is clearly communicated to all staff.

Checklist

  • Ask employees to submit all annual leave requests for the RWC period now.
  • Circulate your absence policy and remind employees of your rules regarding sick leave.
  • If relevant, issue a policy regarding lateness and delays caused by RWC congestion.
  • Circulate your network usage policy to all staff and bring to their attention any changes you have made to accommodate the RWC.
  • Announce your expectations about productivity during games.
  • State your expectations about conduct outside the workplace.
  • Check the form and content of your casual and fixed term agreements and your recruitment processes regarding foreign nationals.
  • Check with payroll and HR how they are responding to queries from employees with regard to the public holiday on 24 October.
  • Issue a RWC policy to staff now that deals with the points above.

Now, when is kick off?

© DLA Piper

This publication is intended as a general overview and discussion of the subjects dealt with. It is not intended to be, and should not used as, a substitute for taking legal advice in any specific situation. DLA Piper Australia will accept no responsibility for any actions taken or not taken on the basis of this publication.


DLA Piper Australia is part of DLA Piper, a global law firm, operating through various separate and distinct legal entities. For further information, please refer to www.dlapiper.com

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