Sisters In Law: Can your boss force you to take annual leave?

An Aussie worker isn’t happy about being forced to take leave over Christmas, saying he wants to save it for when travelling is cheaper next year.

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 advise about your rights when it comes to being forced to take annual leave.

Question:

I work for a company that didn’t used to shut down over Christmas but this year they’re closing the office for two weeks and forcing everyone to take three weeks off.

I am really annoyed as it’s the most expensive time of year to go on holiday and I was hoping to save my leave to go away in 2023 when prices should be getting back to normal. Can they really force us to take three weeks off?

They are always whinging about people having accumulated leave and trying to force us to take it when it suits them. It’s our leave that we’ve earned and I’m sick of it! – Sebastian, NSW

He wanted to use his leave. Picture: iStock

Answer:

Sebastian, the answer to your question will depend on the nature of your employment agreement (if any) with your employer.

Most registered agreements or awards contain rules about how and when (if at all) your employer can direct you to take annual leave.

Each award is different but they will usually detail the period of notice your employer is required to provide you, the amount of leave you can be directed to take, the period of time the employer can close their business and what leave you can access if you don’t have sufficient annual leave (for example, unpaid or unaccrued annual leave).

If the award or agreement does not provide rules allowing forced annual leave, then your employer is not permitted to direct you to take leave.

If you aren’t covered by an award or an enterprise agreement and your contract of employment is silent on the topic, the National Employment Standards will apply.

The Standards only allow your employer to direct you to take annual leave if the direction is reasonable.

Whether you can be forced to take annual leave by your boss depends on your employment agreement. Picture: iStock

In your situation, there are two distinct periods of leave to consider: the two-week shutdown period and the extra (third) week of leave your employer is directing you to take.

A shutdown period is seen as a business closing temporarily during a slow period.

Generally, annual leave directed to be taken during a shutdown period will be seen to be reasonable.

However, in assessing the reasonableness, the following will also be considered:

1. Any arrangements you have made with your employer.

2. The usual practice of your employer with respect to annual leave and/or shutdown periods. (Your employer shutting down this year for the first time will be relevant.)

3. Your needs, for example, what you may require your accrued annual leave for in 2023.

4. The business’ needs. (An analysis of why they are shutting down the business this year and their resourcing needs would be required.)

5. The notice period you were provided by your employer.

To take annual leave outside of the shutdown period, it is likely to only be reasonable if you have an excessive annual leave balance. Picture: iStock

Regarding the direction to take annual leave outside of the shutdown period, it is likely to only be reasonable if you have an excessive annual leave balance (about eight weeks’ accrued leave, or 10 weeks’ accrued leave for shift workers).

If you think your employer is acting unlawfully you should start by putting your complaint in writing to them directly.

If you can’t resolve it directly with your employer, you should contact the Fair Work Ombudsman with a view to making an application to the Fair Work Commission.

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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