Ask Maddy: Can I be forced to take annual leave?

Can I be forced to take annual leave?

Generally, no. However, if you have ‘excess’ annual leave, the rules are a bit more complex.

How much annual leave is ‘excess annual leave’?

Any amount exceeding what you accrue in two years. So, if you are entitled to five weeks annual leave a year, any amount in excess of 10 weeks.

My annual leave is in hours, not weeks; how do I work that out?

For a full-time employee, just divide the hours by 38 to determine the number of weeks.

As a part-time employee, divide the annual leave hours by your average hours per week to estimate the number of weeks.

I have excess annual leave; what can happen?

Your employer may seek to confer with you and ‘genuinely try to reach agreement’ on how to reduce or eliminate your excess leave accrual.

What does ‘genuinely trying to reach agreement’ mean?

Your employer must provide you a reasonable opportunity to submit a leave plan to reduce the leave to not less than eight (8) weeks over the coming six months.

However, your employer cannot unreasonably refuse to agree to a leave reduction plan that includes saving leave for an extended vacation within 12 months of the date of agreement to the leave reduction plan.

Any ‘leave reduction plan’ must be in writing and signed by both you and your employer.

What if we cannot reach agreement?

Where your employer has genuinely tried to reach agreement with you (as above) but agreement is not reached (including because you refuse to participate), your employer may direct you, in writing, to take one or more periods of paid annual leave.

But your employer cannot direct you to take so much annual leave that you end up with less than eight weeks accrued annual leave, nor can they require you take a period of annual leave of less than one working week.

Your employer cannot require you to take a period of paid annual leave beginning less than eight weeks or more than 12 months after the direction is given; and the direction must not be inconsistent with any ‘leave reduction plan’ already agreed (see above).

Must I follow the direction to take annual leave?

Generally yes, however in some circumstances you may request to take a period of paid annual leave ‘as if the direction had not been given’.

If you have genuinely tried to reach agreement with your employer (as above) but agreement is not reached (including because the employer refuses to participate) you may give written notice to your employer requesting to take one or more periods of paid annual leave of up to one year’s accrual.

This applies if:

1. You have had ‘excess annual leave’ for more than six months at the time of giving the notice
2. You have not been given a direction to take annual leave that, when any other paid annual leave arrangements are taken into account, would eliminate your ‘excess annual leave’
3. You would not, if the leave was granted, have less than six weeks leave accrued
4. The leave must be in periods of one-week annual leave or more
5. The leave must commence no sooner than eight weeks or be more than 12 months after the notice is given.

Where you give written notice to your employer (as above), your employer must grant the paid annual leave request.

Disputes regarding excess annual leave

The ANMF, on your behalf, may refer a dispute about the following matters to the Fair Work Commission:

1. a dispute about whether your employer or you have requested a meeting and genuinely tried to reach agreement
2. a dispute about whether your employer has unreasonably refused to agree to your request to take paid annual leave
3. a dispute about whether a direction to take leave complies
4. a dispute about a leave reduction plan.