As an employer, you may wonder if you can force your employees to take leave during certain periods, such as holidays, shutdowns, or slow business times. The answer is not straightforward, as it depends on several factors, such as the type of leave, the terms of the employment contract or award, and the circumstances of the request.
In this blog post, we will explore some of the common scenarios where you may want to force your employees to take leave, and what the legal implications are for each case. We will also provide some tips on how to communicate with your employees and manage their expectations regarding leave arrangements.
Annual Leave
Annual leave, also known as paid holiday leave, is a type of leave that accrues over time based on the hours worked by the employee. Employees are entitled to four weeks of annual leave per year, or five weeks for some shift workers. Annual leave can be taken at any time agreed between the employer and the employee, or at the direction of the employer if certain conditions are met.
According to the Fair Work Act 2009, an employer can require an employee to take annual leave if:
- The requirement is reasonable. This means that the employer must consider the operational needs of the business, the personal circumstances of the employee, and any other relevant factors.
- The requirement is in accordance with an applicable enterprise agreement, award, or employment contract. Some awards and agreements may have specific rules or procedures for directing employees to take annual leave, such as giving a minimum notice period, or allowing a certain amount of leave to be reserved by the employee.
- The requirement is for a period of annual shutdown. This is when a business closes down for a short period, such as during Christmas or New Year. The employer must give at least four weeks notice to the employees, unless a shorter notice period is allowed by an award or agreement.
If an employer does not comply with these conditions, they may face a penalty for breaching the National Employment Standards. Employees who are unfairly forced to take annual leave may also make a complaint to the Fair Work Ombudsman or seek legal advice.
Long Service Leave
Long service leave is a type of leave that rewards employees for their continuous service with the same employer. The rules for long service leave vary depending on the state or territory where the employee works. Generally, employees are entitled to long service leave after 10 years of service, and can take it at any time agreed with their employer.
Unlike annual leave, there is no provision in the Fair Work Act 2009 that allows employers to force employees to take long service leave. However, some state or territory laws may give employers some discretion to direct employees to take long service leave in certain circumstances, such as when the employee has accumulated an excessive amount of leave, or when the business is undergoing a major change or restructuring. Employers should check the relevant laws in their jurisdiction before making any decisions regarding long service leave.
Personal Leave
Personal leave, also known as sick leave or carer's leave, is a type of leave that allows employees to take time off work when they are ill or injured, or when they need to care for an immediate family member or household member who is ill, injured, or affected by an unexpected emergency. Employees are entitled to 10 days of paid personal leave per year, which accrues over time based on their hours worked.
Personal leave is intended to be used for genuine reasons only, and employees must provide evidence of their illness or caring responsibilities if requested by their employer. An employer cannot force an employee to take personal leave unless they have a reasonable belief that the employee is not fit for work due to illness or injury. In that case, the employer can direct the employee to go home and take personal leave until they are able to resume work.
If an employee has exhausted their personal leave entitlements, they may request to take another type of leave, such as annual leave or unpaid leave. However, the employer cannot force them to do so without their consent. Alternatively, the employer may agree to let the employee access their personal leave in advance, subject to certain conditions.
Conclusion
Forcing employees to take leave can be a complex and sensitive issue that requires careful consideration and communication. Employers should always consult with their employees and seek their agreement before making any decisions regarding their leave arrangements. Employers should also be aware of their legal obligations and rights under the relevant laws, awards, agreements, and contracts that apply to their business and employees.
If you have any questions or concerns about forcing employees to take leave in Australia, you can contact us for professional advice and assistance. We are experts in employment law and can help you navigate any challenges or disputes that may arise in your workplace..
