Q: What are my options when it comes to managing employees who don’t have enough accrued annual leave to cover the Christmas shutdown period?
A: It is preferable for the employer to seek the employee’s agreement to take annual leave in advance or unpaid leave during all or part of the shutdown period for which the employee does not have accrued annual leave.
If the employee refuses, the employer may be able to require or direct the employee to take annual leave in advance or unpaid leave during this period.
This will depend on the terms of any modern award or enterprise agreement that covers the employee or, if the employee is award/agreement-free, their contract of employment or applicable workplace policies.
Otherwise, the employee may be entitled to be paid their normal wages during the shutdown period for which they don’t have accrued annual leave.
In the context of the 4 yearly review of modern awards, the Fair Work Commission has, on its own motion, reviewed shutdown provisions in modern awards.
The resulting decision has the potential to significantly change many modern award clauses that deal with shutdowns.
The majority of a Full Bench of the Commission has provisionally determined that all existing shutdown provisions will be replaced with a model term that, among other factors, requires that any direction from an employer to take annual leave during a shutdown must be reasonable and removes the capacity for an employer to direct employees to take unpaid leave during a shutdown.
The Commission has issued draft determinations in relation to the 78 awards affected by its decision.
Last month, Ai Group filed a detailed Submission on behalf of our members contesting the Commission’s provisional determination, including the proposed removal of provisions concerning unpaid leave during a shutdown.
The Commission has not yet made any of the proposed variations to the modern awards, and Ai Group has submitted that this should not occur before Christmas.
In summary, it is important that employers closely examine:
- any applicable award or enterprise agreement,
- the employee’s contract of employment and
- relevant workplace policies.
It is also important to seek advice before issuing directions to employees in relation to taking accrued annual leave, annual leave in advance or unpaid leave during the Christmas shutdown period.
If you have any questions or require advice in relation to your obligations or the 4 yearly review and proposed variations to existing shutdown provisions in modern awards, Ai Group Workplace Lawyers are here to help. Send us an email or phone 1300 55 66 77.