For many employees, whether and how much annual leave an employer can direct an employee to take is dictated by their relevant modern award. Are there any accepted guidelines or precedents for award-free employees?
When and how much annual leave an employer can direct an employee to take is typically determined by the terms of an applicable award or enterprise agreement. For award and agreement-free employees, the employer’s ability to direct an employee to take annual leave is dependent on whether this is reasonable.
A direction to take annual leave may be reasonable if, for example, the employee has accrued an excessive amount of annual leave (e.g. more than 8 weeks) or the employer’s business is being shut down for a period (e.g. between Christmas and New Year).
More generally, the reasonableness of a direction to take annual leave is determined by taking into account the following factors:
- the needs of the employee and the employer’s business;
- any agreed arrangement with the employee;
- the custom and practice in the employer’s business;
- the timing of the direction; and
- the length of notice provided.