Can your boss force you to take annual leave?

Can your boss ever require you to take annual leave? And what are your alternatives? (Source: Getty)

Workers have been forced to take pay cuts or reduced hours as a result of the havoc wreaked by Covid-19.

But if your boss tells you to take annual leave, do you have to? And is it even legal for them to ask?

• Also read: ‘Pandemic leave’ to save millions of jobs: Fair Work

• Also read: How JobKeeper staff could get sacked anyway

Generally speaking, there aren’t many situations where your boss can force you to take leave. According to experts, the most important thing is that both parties come to an agreement.

“The general rule is that employees and an employer need to agree on when annual leave is taken,” Maurice Blackburn principal and employment lawyer Daniel Victory told Yahoo Finance.

Before the coronavirus pandemic, there were already some circumstances under which an employer can ask employees to take leave; for instance, during the Christmas shut-down period.

And under some enterprise agreements and awards, bosses can ask you to take annual leave if you have excessive amounts of leave racked up, such as more than eight weeks.

But at the end of the day, outside of these circumstances, your boss can’t really force you to take annual leave.

“There are many terms and conditions around this that must be met, such as not requiring an employee to take less than one week of annual leave,” said Employsure senior employment relations advisor Erin Gaffney.

“It is important for employers to review their specific Award so they do right by their employee.”

Covid-19 has temporarily changed workplace laws

For people on JobKeeper, however, the situation looks a little different.

According to RMIT University business and law professor Anthony Forsyth, the pandemic has changed employers’ powers to direct workers to take leave in two main ways.

“First, some awards were varied very early on (by agreement between employers and unions) to facilitate this. For example, the Hospitality Award was changed to enable employers to require that an employee take annual leave on 24 hours’ notice; under the Clerical Award change, one week’s notice has to be given.

“Secondly, as part of the JobKeeper scheme, employers can ask an employee who is receiving JobKeeper payments to agree to take annual leave – and the employee must not unreasonably refuse that request,” Forsyth said.

“For employees who are stood down or had their hours significantly reduced, this means they would have to draw down on their accrued annual leave while on JobKeeper.”

The Fair Work Commission has overseen several disputes over this issue, and has generally backed up employers’ right to insist that workers on JobKeeper use their annual leave, dismissing workers’ complaints that they would rather save it for holidays in the future, Forsyth added.

The most important thing is to find out if you fall under certain awards and what your rights might be, he said.

“Overall, employees should be on guard and get information from the Fair Work Ombudsman or unions if requested to take annual leave right now.

“While employers’ ability to direct the taking of annual leave has been increased, this varies from one industry to another depending on the applicable award. And there may be different rules under an enterprise agreement that applies at their workplace,” Forsyth told Yahoo Finance.

Here’s what else you need to know

Other temporary workplace law measures you might need to know about are: unpaid pandemic leave, and double annual leave at half pay.

In early April, the Fair Work Commission introduced unpaid pandemic leave for 99 awards which involves two weeks’ unpaid leave if you’re required to self-isolate due to Covid-19.

Pandemic leave applies to full-time, part time and casual employees – there’s no need to accrue this type of leave, and you’re allowed to use pandemic leave before using annual leave.

Annual leave at half pay allows workers to take twice the amount of time off – but for half the pay. Here’s more about how that works.

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