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Aussie bosses can force you to take annual leave: Here’s how

·4-min read
Image of elevators, Melbourne's Flinders St Station
Can your employer force you to take annual leave without pay? In some circumstances, yes. (Source: Getty)

Australian employers can compel workers to take annual leave during lockdown in very specific circumstances, a workplace relations advice firm has said.

With half the country now in lockdown, businesses have been forced to shut their doors and employees have been unable to work. This period has led to questions and confusion about whether employers can order staff to take leave during lockdown periods.

If it’s in your contract, award or or agreement, then it’s possible, according to Employsure employee relations specialist Nicholas Hackenberg.

“As it stands, an employer can only direct their staff to take annual leave during a shutdown if their award or registered agreement allows it,” Hackenberg said.

“Some awards allow for it, but require the employer to give several weeks’ notice. In those first few weeks, the employer must pay their employee their normal wage,” he added.

“Other awards may not allow employers to force annual leave on staff. However, it can come into effect if a mutual agreement has been reached between them.”

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Running down leave balances is an alternative that employers might take in lieu of standing down workers. This way, workers still get paid, while businesses minimise their leave burden.

The JobKeeper wage subsidy introduced last year also gave employers extra powers to run down leave balances while they received the subsidy.

But the current lockdown payments don’t afford the same power to employers.

Woman in home office during Covid-19 lockdown
Workers can be stood down without pay during COVID-19 lockdowns. (Source: Getty)

‘Closedown’ vs ‘shutdown’

In situations like the closed period during Christmas and New Years, an employer can direct you to take annual leave, according to the Fair Work Ombudsman (FWO). This is called a ‘shut down’.

And the same is true if you’ve accumulated annual leave, too.

But there’s another scenario, called a stand down, where employees can’t do any work due to a natural disaster, like bushfires, floods or cyclones; because of equipment breakdowns; or because of industrial strikes.

Lockdowns do qualify as a situation where workers can be stood down, as it’s not the employer’s fault.

During stand downs, the FWO says the employee doesn’t have to be paid, but does accrue leave like annual leave in the regular way.

However, the employer is encouraged to explore every option – like remote working, changing rosters, and accessing leave – before employees are stood down.

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Certain awards also allow for two weeks’ unpaid pandemic leave. The FWO has more information on that here.

Whether you’re an employee or an employer, your best bet is to do some digging and find out for yourself.

“Employers confused as to what their obligations are should double check to see if their award or registered agreement allows them to direct employees to take annual leave,” said Hackenberg.

“This also includes those not covered by either. The general rule is an employer can only direct staff to take annual leave if that direction is considered to be reasonable.”

And it appears a lockdown-induced closure of the business would be considered reasonable.

“For example, it may be reasonable for your employer to ask you to take your annual leave, if your employer’s business is temporarily shutting down because of COVID-19,” stated Slater + Gordon Lawyers’ website.

The FWO has a message to bosses looking to stand down their staff: communicate.

“An employer should discuss and communicate any decisions they make about implementing a stand down with their employees,” the FWO website states.

But more broadly, outside of COVID-19 and Christmas shutdowns, you’ll have to agree to any leave that you’re taking, according to Slater + Gordon.

“Generally, there is no definitive guide for when your employer can and cannot ask you to take annual leave. Each case needs to be considered individually.”

Where to get help

If a workplace issue arises, the Fair Work Ombudsman generally wants employers and employees to have a crack at fixing the dispute between themselves first.

They’ve made a bunch of resources and tools available to help you solve common workplace problems.

But if that doesn’t work, you can ask for the FWO’s help, or make an anonymous report.

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