end of the road for employee who refused to take a period of annual leave
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Long after its initial introduction, an air of uncertainty still surrounds certain aspects of the JobKeeper scheme (the Scheme). The Federal Government’s attempt to provide operational flexibility for businesses is ripe for disputes as employers and their workers test the limits of the new laws.
reduced hours under the scheme
Under the Scheme, eligible employers may direct eligible employees to:
- not work on normal work days;
- work for shorter hours on a particular day or days; or
- work a reduced number of total hours including a reduction down to zero hours.
Eligible employers are also able to request eligible employees take a period of annual leave, provided that at the end of such period the employee retains a two week balance. Eligible employees must not unreasonably refuse such a request.
the first JobKeeper dispute decision
The Fair Work Commission (FWC) has issued the first decision considering whether an employee unreasonably refused a request from an employer to take annual leave.
The FWC heard that the employee, Ms McCreedy:
- was asked to take one day of annual leave per week over a 16-week period;
- had been a part-time employee of Village Roadshow Theme Parks Pty Ltd (VRTP) for approximately 22 years and typically worked two days per week;
- had accrued almost 10 weeks’ annual leave and 9 weeks’ long service leave at the time she was asked to take leave; and
- refused the request on the basis that she wished to use her accrued annual leave for five holidays which were planned for the coming months and into 2021.
Notably, the FWC rejected Ms McCreedy’s submission that the JobKeeper provisions of the FW Act should only be available for smaller employers, and not employers the size of VRTP.
In deciding that her refusal was unreasonable, Commissioner Hunt observed that Ms McCreedy “had little to no regard to VRTP’s reasonable request to relevant employees to assist in reducing VRTP’s annual leave liabilities during a time when it is unable to operate its business for what is now, approximately 7.5 weeks, and into the short-term future”.
lessons learnt
The FWC is likely to be sympathetic to employers during this challenging time. However, each dispute will turn on its own facts. In this case, the employee’s sizable leave balance and the modesty of the employer’s request were significant determining factors.
If you would like assistance or advice in relation to JobKeeper or any other employment issues, please contact our Employment, Safety and Migration team.
The information contained in this article is general in nature and cannot be relied on as legal advice nor does it create an engagement. Please contact one of our lawyers listed above for advice about your specific situation.
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end of the road for employee who refused to take a period of annual leave
Long after its initial introduction, an air of uncertainty still surrounds certain aspects of the JobKeeper scheme (the Scheme). The Federal Government’s attempt to provide operational flexibility for businesses is ripe for disputes as employers and their workers test the limits of the new laws.
reduced hours under the scheme
Under the Scheme, eligible employers may direct eligible employees to:
- not work on normal work days;
- work for shorter hours on a particular day or days; or
- work a reduced number of total hours including a reduction down to zero hours.
Eligible employers are also able to request eligible employees take a period of annual leave, provided that at the end of such period the employee retains a two week balance. Eligible employees must not unreasonably refuse such a request.
the first JobKeeper dispute decision
The Fair Work Commission (FWC) has issued the first decision considering whether an employee unreasonably refused a request from an employer to take annual leave.
The FWC heard that the employee, Ms McCreedy:
- was asked to take one day of annual leave per week over a 16-week period;
- had been a part-time employee of Village Roadshow Theme Parks Pty Ltd (VRTP) for approximately 22 years and typically worked two days per week;
- had accrued almost 10 weeks’ annual leave and 9 weeks’ long service leave at the time she was asked to take leave; and
- refused the request on the basis that she wished to use her accrued annual leave for five holidays which were planned for the coming months and into 2021.
Notably, the FWC rejected Ms McCreedy’s submission that the JobKeeper provisions of the FW Act should only be available for smaller employers, and not employers the size of VRTP.
In deciding that her refusal was unreasonable, Commissioner Hunt observed that Ms McCreedy “had little to no regard to VRTP’s reasonable request to relevant employees to assist in reducing VRTP’s annual leave liabilities during a time when it is unable to operate its business for what is now, approximately 7.5 weeks, and into the short-term future”.
lessons learnt
The FWC is likely to be sympathetic to employers during this challenging time. However, each dispute will turn on its own facts. In this case, the employee’s sizable leave balance and the modesty of the employer’s request were significant determining factors.
If you would like assistance or advice in relation to JobKeeper or any other employment issues, please contact our Employment, Safety and Migration team.