Recently, the Fair Work Commission made changes to the rules around annual leave contained in your Modern Award. Annual leave is an essential workplace entitlement and over the last 12 months, your union has been advocating for improvements to your rights when requesting and taking annual leave.
Where you have excessive leave, we strongly encourage you to sit down with your employer to work out an arrangement for taking leave that will suit you both. Remember, you are entitled to have a union delegate or representative present with you in those discussions so you can be sure you are getting everything you’re entitled to.
The changes that have been decided by the Fair Work Commission are rules that apply where you have not been able to reach any agreement with your employer about how to take your excessive annual leave.
Below is a summary of the changes.
New protections for employees where an employer is directing you to take excess annual leave
Under the new changes, from 29 July, 2016 new rules will come into place where your employer is directing you to take excessive leave. Excessive leave is defined as 8 weeks annual leave accrued (10 weeks for shift workers).
Before an employer can require you to take excessive leave, they must genuinely attempt to hold discussions with you about reducing your excessive leave. If your employer cannot come to an agreement with you about a plan to reduce your excessive leave, they can direct you to take leave but subject to the following rules:
- The direction must be in writing
- You cannot be required to reduce your accrued annual leave entitlement below 6 weeks
- You can’t be directed to take leave in less than one week blocks
- You must be give 8 weeks notice of when the leave is to be taken
- You can’t be directed to take leave which begins more than 12 month away
New rights for employees where you are requesting to take annual leave
New rules will come into effect on 29 July, 2017 that give employees new rights when requesting to take annual leave. Under the new rules, you have a new right to make an “employee request under a Modern Award”. This is particularly useful where your employer is being difficult in approving your annual leave.
To be eligible to make an “employee request under a Modern Award” you must meeting the following requirements:
- You have had at least 8 weeks (10 weeks for shift workers) of annual leave accrued for the last 6 months
- You must not have been given a notice to take excessive leave by your employer that would eliminate your excessive leave
In order for your “employee request under a Modern Award” to be valid, it must adhere to the following rules:
- It must not result in you having less than 6 weeks annual leave accrued
- It must be for a minimum of one weeks annual leave
- You must give 8 weeks notice
- The request must not be for leave which is more than 12 months away.
- It can’t be inconsistent with any other leave arrangements you have already agreed with you employer
If your “employee request” meets the above criteria, then the employer cannot refuse the request and must grant the leave.
Keep in mind that whether you have “excessive leave” or not, you always have the right to request Annual Leave, which the employer must not unreasonably refuse,. This new entitlement will assist where an employer continually refuses (borderline reasonably) resulting in an excessive leave being accrued.
New rules for cashing out of annual leave
Effective from 29 July, 2016, the Commission has introduced new rules for cashing out annual leave. Your union strongly recommends against cashing out annual leave because we believe that time away from work is a critical part of maintaining your wellbeing and being a productive employee.
Under the new rules, annual leave can be cashed out under the following circumstances only:
- it must be agreed by both the employer and employee
- the agreement must be in writing and signed by the employer and employee and entered into each time a period of leave is cashed out
- the amount of payment made for cashing out of the leave cannot be less than the amount had you taken the leave
- the agreement must not result in you having less than 4 weeks accrued annual leave
- You cannot agree to cash out any more than 2 weeks annual leave in any 12 month period
If you have any questions about these matters, we encourage you to contact the AMWU HelpDesk on 1300732698.