Our company policy allows us to pay annual leave to an employee if they run out of sick leave, even though the employee has not requested annual leave. We want to change the policy to include that the company will direct the employees to take annual leave, if they have not provided evidence for personal leave. Can we do this?
According to the National Employment Standards (the NES) contained within the Fair Work Act 2009 (the Act), annual leave can be used at any time when agreed between the employee and employer.
However, an employer directing an employee to take annual leave instead of personal leave without their agreement raises some issues.
As mentioned above, the Act provides that paid annual leave may be taken for a period agreed between an employee and an employer. Generally, an employer is unable to direct employees to take annual leave unless there are situations where the requirement to take annual leave is reasonable.
These situations are discussed further below.
Employers can direct employees to take annual leave in certain circumstances. For example, under the Manufacturing and Associated Industries and Occupations Award 2010 (Manufacturing award) an employer can direct an employee to take annual leave during an annual close down or if an employee has an excessive amount of leave accrued (more than eight weeks). There are requirements that an employer would need to comply with in these situations.
For award/agreement free employees, section 94(5) of the Act allows an employer to require an employee to take annual leave if the requirement is reasonable. Like the Manufacturing Award, for award/agreement free employees a requirement to take annual leave may be reasonable if the employee has accrued excessive amounts of annual leave or the enterprise is being shut down during, for example, the Christmas/New Year period.
If an employee has exhausted their paid personal leave entitlements, they may ask to be paid annual leave instead of going without pay for the absence. The employer is not able to direct an employee to take annual leave during this period if the employee does not want to.
An employer may require that an employee provides evidence for the taking of personal leave that shows they were unfit for work. If an employee does not provide evidence required for personal leave, then this could be considered an unauthorised absence. Rather than asking an employee to take annual leave in this situation, it would be appropriate to manage the issue of not providing the required evidence for personal leave.
An employer may be able to take disciplinary action against an employee on unauthorised leave on the basis that the employee failed to provide evidence as per their employer’s request.
If an employee fails to provide evidence for the taking of personal leave, but the employer allowed them to take annual leave instead, the employer may be unable to take disciplinary action against the employee, because the payment of annual leave would be seen as the employer authorising the absence.
For further advice about annual or personal leave please contact us orcall the Workplace Advice Line on 1300 55 66 77.
