Producers in the film and television industries may be aware of recent changes to Broadcasting Recorded Entertainment and Cinema Award 2020 (BRECA) which affect how Christmas shutdowns and hiatuses are to be dealt with on Australian productions.
Producers should act quickly to put these arrangements in place if they haven’t done so already – 28 days’ notice is generally required (but see further below), and Christmas isn’t far away!
Historically, the industry practice has been that employers “direct” production employees to take leave without pay for a period over the Christmas break (commonly referred to as a “production hiatus”) and the BRECA did not expressly prevent employers from doing so. After all, many employees on a production are employed on a fixed term, project-by-project basis, and accordingly, they mightn’t have sufficient accrued leave to cover the entire production hiatus. If they nevertheless take paid leave over a production hiatus, they may end up with a small, or even negative, annual leave balance for the remainder of their contract’s term. In addition, an unpaid production hiatus assists with a producer’s cashflow, and the producer is able to avoid the administrative burden of calculating, in respect of each employee, annual leave entitlements and payments.
From 1 May 2023, the BRECA and many other awards were amended to include a new “Shutdown” provision, prohibiting employers from directing employees to take unpaid leave during an annual shutdown.
Checklist for producers
When planning a production shutdown, please note the following :
- Employees must be given at least 28 days’ notice of a production shutdown – a shorter notice period can only be given with the consent of a majority of affected employees, so timing is everything;
- If an employee has sufficient annual leave to cover the shutdown, the employer can direct the employee to take annual leave for the duration of the shutdown;
- Accrued time off in lieu of overtime worked prior to the shutdown may be paid in the place of annual leave (if applicable);
- If an employee does not have sufficient annual leave to cover the shutdown, they cannot be directed to take unpaid annual leave but must be given a choice between combining their accrued leave with leave in advance or unpaid leave;
- There may be individual circumstances where paid work may continue for part of the hiatus period at the employer’s discretion and provided that the work is necessary and useful;
- If an employee takes annual leave in advance and their employment ends with a negative annual leave balance, an employer can set off this amount against other entitlements owed to the employee;
- If an employee requests to take unpaid leave for the entire production shutdown, the employer can agree to this. However, this should not be done at the suggestion or request of the employer; and
- If an employee agrees to take annual leave in advance, this must be reflected in a written “Agreement to Take Annual Leave in Advance”, in the prescribed form.
If employees are covered under other Awards, please check each applicable Award for any variations to the above.