Can Employees Request To Take Annual Leave While On Jobkeeper?

The Fair Work Commission has released its first decision detailing what it considered to be an unreasonable refusal to take annual leave under the recent changes to the Fair Work Act.  Those changes include the ability for an employer to request an employee to take annual leave and that the employee can not “unreasonably refuse” the request.

In this case an employee with significant length of service and accrued annual leave balances refused a request to take annual leave.

The Commission found that the refusal was unreasonable and the employee must now take the leave.

The particular circumstances here are that the employee had significant amounts of annual leave accrued, and that although she claimed that she had booked and paid for holidays which would be adversely affected by this request, she had not complied with the annual leave policy of her employer.  Therefore there was no “agreement” to grant the previously approved leave that the employer was reneging on.  

The decision included the following passage:

“[38] It is Ms McCreedy’s submission that in all of the circumstances, including but not limited to:
(a) her lengthy period of service and annual leave accrual;
(b) her medical condition;
(c) her desire to take future holidays that have largely been paid for;
(d) the consideration that some holidays had been approved but have now been cancelled due to the pandemic;
(e) the consideration that she had recently requested annual leave be approved and it has not yet been approved;
(f) the very large size of VRTP and its solid financial position;
(g) the inherent unfairness that casual employees receiving JobKeeper payments are not, to her knowledge, disadvantaged;
(h) the inherent unfairness that employees receiving JobSeeker payments, as opposed to Jobkeeper payments are not requested to take annual leave in the way that she is being requested 

she has not unreasonably refused the request of VRTP”.

The Commissioner then went on to reject all of these points as not being relevant in her circumstances.  It should also be noted that the Commission specifically rejected a notion that the amounts being paid to employees under JobKeeper may be higher than what they would normally be paid for their rostered hours and this would be part of the consideration.  

It is not clear if this decision is being appealed so we will have to wait for further clarification, however I think given the circumstances, the following would be a reasonable understanding moving forward:

1.      Requesting employees to take annual leave for a part of a week at their full rate of pay (even if this means they still get no more than the JobKeeper amount) is not unreasonable and it is important to note that the “reasonableness” of the request is not a relevant point.

2.     Employees with accrued leave will not be able to “reasonably refuse” such a request UNLESS they have previously requested, and been granted, annual leave which would no longer be available to them as a result of the request;

3.     There has been no direction restricting the requests for employees to take leave to those who have “excessive accruals”, therefore all employees who have more than two weeks leave (10 working days) may be asked to take leave.

We have prepared a template letter which you can use to request employees take annual leave and uploaded it to the members only section of your website. If your a member and having any difficulties logging in, please contact Jacob on 07 3899 6100.