Sisters In Law: Can my boss force me to take annual leave?

Through COVID-19 many Aussies have been forced to take leave but a lawyer says there are only two specific circumstances when that’s allowed.

Welcome to Sisters In Law, news.com.au’s weekly column solving all of your legal problems. This week, our resident lawyers and real-life sisters Alison and Jillian Barrett from Maurice Blackburn tackle your legal rights when it comes to taking forced annual leave.

QUESTION: I am being forced by my boss to take annual leave before the end of the month, even though I don’t have that much accrued and I wanted to save it for a holiday further down the track when my partner is available. I feel like I’m being pushed around, but I’m scared to fight back during these tough economic times. What are my rights when it comes to unfair leave policies? – Rafe, SA

ANSWER: We can’t give you a precise answer about your specific circumstances as it is not clear what type of industrial agreement you are employed under, whether your employer has qualified for JobKeeper payments and exactly how much annual leave you have accrued.

All of these things impact on what your employer is lawfully allowed to do when it comes to directing you to take annual leave.

The usual position regarding annual leave is that it should be taken by agreement between the employer and the employee. An employer cannot force you to take your leave.

There are, however, some exceptions to the general rule that you should be aware of as they may apply to your employment.

AWARD AGREEMENT

Some modern awards and registered agreements allow an employer to direct an employee to take annual leave in certain circumstances.

If your employment is covered by an award or agreement, you should review the document to check its terms.

There may be rules about when an employer can direct an employee to take their leave (eg if their leave balance is excessive), how much notice the employee should receive in advance of having to take the leave and how much leave they can be directed to take.

Whether an employer can force you to take annual leave depends on a few factors. Picture: iStock

If your employment is not covered by an award or an agreement, your employer can direct you to take annual leave only if their direction is ‘reasonable’.

Whether or not their direction is reasonable will involve a consideration of the matters above. So for example, if you were provided with two days’ notice to take two weeks leave, which would result in you having a leave balance of just one week, it may be seen to be unreasonable.

JOBKEEPER

If your employer has qualified for JobKeeper payments, you should be aware that changes made to the Fair Work Act allow JobKeeper qualifying employers to lawfully:

• Request an eligible employee to take paid annual leave (as long as they keep a balance of at least two weeks annual leave)

• Agree in writing with an employee for them to take annual leave at half their usual pay for twice the length of time.

Further, the employee has to consider the employer’s request to take annual leave and can’t unreasonably refuse it.

In short, if your employer is receiving a JobKeeper payment for you, you can’t unreasonably refuse their request to take annual leave, unless taking the leave results in you having an annual leave balance of fewer than two weeks.

It sounds like you are fearful of either being stood down or your employment being terminated if you don’t comply with your employer’s request to take annual leave.

If this occurs, we suggest getting advice quickly so you know where you stand.

This legal information is general in nature and should not be regarded as specific legal advice or relied upon. Persons requiring particular legal advice should consult a solicitor.

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