AHRI:ASSIST FAQS: annual leave


Each month, we tap into the AHRI:ASSIST resource centre and find the most topical questions members are asking. This month, just in time for the holiday break, we take a look at annual leave.

Q. An employee wants to take unpaid leave to go on a holiday, but the person hasn’t accrued sufficient leave. Do I have to approve this? What do I do if the employee threatens to take the leave anyway?

You don’t have to approve unpaid leave for employees wanting a holiday. If they threaten to take the leave anyway, you can warn them that you will terminate their employment if they take an unauthorized absence from work. You could offer to advance them paid annual leave on condition that they authorise you to deduct the advance from whatever is otherwise owed to them should their employment end before they accrue the amount of leave advanced.

Q. An employee has taken approved annual leave and fallen ill during this period. Should the person be paid annual leave or personal leave for that period?

Employees are not entitled to take personal leave during paid annual leave.

Q. What factors are taken into account in determining whether an employer can ‘reasonably’ refuse a request for annual leave?

This is not defined in the Fair Work Act. However, it would depend on the notice the employee has given of the intention to take leave, the notice the employer has given of the refusal, the grounds for the refusal and the impact the refusal will have on the employee.

Q. Does an employee who is absent from work and receiving workers’ compensation payments accrue annual leave during this time?

Yes, if the compensation is paid under Commonwealth or Queensland workers’ compensation legislation. In other cases, no.

Q. Can I direct my employees to take annual leave and, if so, in what circumstances?

You can require employees to take annual leave if the requirement is reasonable. Factors determining whether it’s reasonable include the reasons for imposing the requirement and the notice given. It will be reasonable during Christmas shutdowns or when accrual is excessive (provided employees understand when leave is excessive and are given reasonable warning that they need to run down accrual).

Modern awards and enterprise agreements often provide clauses dealing with directions to take annual leave, which should be consulted when considering a directive of this nature.

Q. When do I have to pay leave loading?

You need to check whether this entitlement arises under a modern award, enterprise agreement or employment contract. If there is such an entitlement, you would normally have to pay this when the employee takes approved annual leave, as well as on unused accrued leave paid out on termination of employment.

Q. An employee booked annual leave some time ago to visit her mother overseas. Her mother is now terminally ill and the employee wishes to take a portion of her leave as compassionate leave as her mother might not live past Christmas (although she might also survive). The employee’s manager doesn’t think the situation is urgent enough to qualify for compassionate leave. Do you have any guidance?

Given the circumstances, compassionate leave is reasonable in this situation. Under the Fair Work Act, employees are entitled to two days compassionate leave for each occasion that a member of their immediate family or household passes away or suffers a serious illness or injury. It would appear that this situation qualifies as a serious illness.

If you’re grappling with an HR issue, AHRI:ASSIST is an HR guidance and support centre, with information sheets, checklists, guidelines, templates and much more. 

This article is an edited version. The full article was first published in the December 2014/January 2015 issue of HRMonthly magazine as ‘AHRI:ASSIST’. AHRI members receive HRMonthly 11 times per year as part of their membership. Find out more about AHRI membership here.

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Sarah
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Sarah

Re the issue of personal leave for someone who falls ill during a period of annual leave, I think you should mention that this depends on local directives; if a member of staff here falls ill during a period of annual leave and provides a medical certificate, we change the leave type for those days as this is a more accurate reflection of leave and service.

Heather
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Heather

Your answer to the question of eligibility for personal leave whilst on annual leave is not accurate. Section 89 (2) of the Fair Work Act provides for this situation where an employee is eligible for other forms of leave whilst on annual leave.

Linda
Guest
Linda

I agree with Sarah’s comments above, the employee cant take both leave types, however in many organisations I have worked (being a professional contractor this is many), if a medical certificate is provided the leave can be changed to sick leave for the days they were ill.

Peter
Guest
Peter

I agree that some of the answers are overly simplistic or incorrect. The question about illness (or even caring) during planned Annual Leave also needs consideration of the specific instruments (eg Award, Agreement or contract) governing the employment relationship. The question about when an employer can ‘reasonably’ refuse a request for annual leave should also include consideration of the impact on the business as well as the impact on the employee (and the other issues mentioned).

Helen
Guest
Helen

I agree with Heather (re. s 89(2) of the Fair Work Act) with regards to National System Employers/employees. As long as an employee on approved annual leave has met the evidence and notice requirements of any personal leave provisions they are entitled to have the annual leave recredited and the period paid as personal leave (if they have accrued such leave). This includes employee being sick themselves or for carer’s leave purposes.

More on HRM

AHRI:ASSIST FAQS: annual leave


Each month, we tap into the AHRI:ASSIST resource centre and find the most topical questions members are asking. This month, just in time for the holiday break, we take a look at annual leave.

Q. An employee wants to take unpaid leave to go on a holiday, but the person hasn’t accrued sufficient leave. Do I have to approve this? What do I do if the employee threatens to take the leave anyway?

You don’t have to approve unpaid leave for employees wanting a holiday. If they threaten to take the leave anyway, you can warn them that you will terminate their employment if they take an unauthorized absence from work. You could offer to advance them paid annual leave on condition that they authorise you to deduct the advance from whatever is otherwise owed to them should their employment end before they accrue the amount of leave advanced.

Q. An employee has taken approved annual leave and fallen ill during this period. Should the person be paid annual leave or personal leave for that period?

Employees are not entitled to take personal leave during paid annual leave.

Q. What factors are taken into account in determining whether an employer can ‘reasonably’ refuse a request for annual leave?

This is not defined in the Fair Work Act. However, it would depend on the notice the employee has given of the intention to take leave, the notice the employer has given of the refusal, the grounds for the refusal and the impact the refusal will have on the employee.

Q. Does an employee who is absent from work and receiving workers’ compensation payments accrue annual leave during this time?

Yes, if the compensation is paid under Commonwealth or Queensland workers’ compensation legislation. In other cases, no.

Q. Can I direct my employees to take annual leave and, if so, in what circumstances?

You can require employees to take annual leave if the requirement is reasonable. Factors determining whether it’s reasonable include the reasons for imposing the requirement and the notice given. It will be reasonable during Christmas shutdowns or when accrual is excessive (provided employees understand when leave is excessive and are given reasonable warning that they need to run down accrual).

Modern awards and enterprise agreements often provide clauses dealing with directions to take annual leave, which should be consulted when considering a directive of this nature.

Q. When do I have to pay leave loading?

You need to check whether this entitlement arises under a modern award, enterprise agreement or employment contract. If there is such an entitlement, you would normally have to pay this when the employee takes approved annual leave, as well as on unused accrued leave paid out on termination of employment.

Q. An employee booked annual leave some time ago to visit her mother overseas. Her mother is now terminally ill and the employee wishes to take a portion of her leave as compassionate leave as her mother might not live past Christmas (although she might also survive). The employee’s manager doesn’t think the situation is urgent enough to qualify for compassionate leave. Do you have any guidance?

Given the circumstances, compassionate leave is reasonable in this situation. Under the Fair Work Act, employees are entitled to two days compassionate leave for each occasion that a member of their immediate family or household passes away or suffers a serious illness or injury. It would appear that this situation qualifies as a serious illness.

If you’re grappling with an HR issue, AHRI:ASSIST is an HR guidance and support centre, with information sheets, checklists, guidelines, templates and much more. 

This article is an edited version. The full article was first published in the December 2014/January 2015 issue of HRMonthly magazine as ‘AHRI:ASSIST’. AHRI members receive HRMonthly 11 times per year as part of their membership. Find out more about AHRI membership here.

9
Leave a reply

avatar
100000
  Subscribe to receive comments  
Notify me of
Sarah
Guest
Sarah

Re the issue of personal leave for someone who falls ill during a period of annual leave, I think you should mention that this depends on local directives; if a member of staff here falls ill during a period of annual leave and provides a medical certificate, we change the leave type for those days as this is a more accurate reflection of leave and service.

Heather
Guest
Heather

Your answer to the question of eligibility for personal leave whilst on annual leave is not accurate. Section 89 (2) of the Fair Work Act provides for this situation where an employee is eligible for other forms of leave whilst on annual leave.

Linda
Guest
Linda

I agree with Sarah’s comments above, the employee cant take both leave types, however in many organisations I have worked (being a professional contractor this is many), if a medical certificate is provided the leave can be changed to sick leave for the days they were ill.

Peter
Guest
Peter

I agree that some of the answers are overly simplistic or incorrect. The question about illness (or even caring) during planned Annual Leave also needs consideration of the specific instruments (eg Award, Agreement or contract) governing the employment relationship. The question about when an employer can ‘reasonably’ refuse a request for annual leave should also include consideration of the impact on the business as well as the impact on the employee (and the other issues mentioned).

Helen
Guest
Helen

I agree with Heather (re. s 89(2) of the Fair Work Act) with regards to National System Employers/employees. As long as an employee on approved annual leave has met the evidence and notice requirements of any personal leave provisions they are entitled to have the annual leave recredited and the period paid as personal leave (if they have accrued such leave). This includes employee being sick themselves or for carer’s leave purposes.

More on HRM