Employers have long-struggled to manage excessive annual leave accruals.
These latest changes mean ‘excessive’ annual leave accruals – defined as more than 8 weeks for most employees and 10 weeks for shiftworkers – can now be tackled head on.
Most – but not all – Modern Awards now contain a ‘model directed leave term’ which allows the employer to direct employees to take excessive annual leave. As with cashing-out of annual leave, strict rules apply:
- The employee and employer must firstly meet to discuss arrangements for eliminating the excessive leave
- If an agreement can’t be reached, the employer is entitled to direct the employee to take annual leave.
- The directed annual leave period must begin between 8 weeks and 1 year from the date the direction is issued by the employer
- The directed annual leave period must be at least one week long, and
- The employee must have at least six weeks of annual leave left after the directed leave period has been completed
Three further important points should also be noted:
- The employer’s direction cannot be inconsistent with any leave arrangements already in place. This includes any annual leave policies or procedures which apply in the workplace
- An employee can still request annual leave despite an employer’s prior direction, and the employer must disregard the direction when considering the employee’s new request, and
- If an employee has had an excessive leave balance for more than 6 months and the employer has not issued a direction, the employee can unilaterally take some of their leave.
- In this situation the same rules as mentioned above for employer-directed leave will also apply.
Phew! While all this might seem quite complex, the good news is that these changes are a positive – but long-overdue – step towards more flexible workplace regulation.
Source: David Bates, Managing Director, Workforce Guardian 9.8.2016
This article appeared in our December 2016 newsletter
