Directing an Employee to Take Annual Leave During the Pandemic
If your employer is experiencing a downturn as a result of the COVID-19 pandemic, they may ask you to take annual leave. Whether your employer can lawfully direct you to take annual leave, however, depends on your individual circumstances and the terms and conditions of your employment.
If you are employed under a registered agreement or an award, the conditions under which your employer can direct you to take annual leave will be contained in that award or agreement. These documents can be located on the Fair Work Commission website.
If you are not covered by a Modern Award or Enterprise Agreement, you may be required to take annual leave if the requirement is reasonable under the Fair Work Act.
If the business has a shutdown (or ‘close down’), where businesses temporarily close for a period of time (for example, the Christmas and New Year period), your employer may require you to take annual leave during this closure. The right of an employer to require you to take annual leave during a shutdown period is governed by an applicable award or registered agreement or, where no such instrument applies to your employment, by the Fair Work Act where such direction is reasonable.
Excess Annual Leave
Under certain awards, your employer can also ask you to take leave if you have accrued excess annual leave. An applicable award will define how much accrued leave will be deemed “excess” for which your employer may direct you to take leave. The employer’s right to direct you to take leave where you have accrued an excess amount is subject to them liaising with you to try to reach an agreement about taking the leave. The relevant award or agreement may also dictate how much notice of taking the leave your employer is required to give.
Coronavirus Award Variations
Some awards have been varied as a result of the coronavirus pandemic to help increase leave flexibility. Depending on your award, you make be able to take twice as much annual leave at half the normal pay. Your leave must start before 30 September 2020 for this variation to take effect (but may finish after this date).
You ought to be aware of the particular terms of your employment to determine whether you are required to take annual leave if directed by your employer. First and foremost, annual leave is something that is best negotiated and resolved between you and your employer.