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JobKeeper Enabling Direction to Take Leave Challenged

The Fair Work Act has been temporarily amended to complement the JobKeeper scheme and allow employers to better manage their workforce during the pandemic period. As such, one JobKeeper Enabling Direction empowers an employer to direct an employee to take annual leave as long as their remaining entitlement after the directed leave is taken is no less than 2 weeks.

A part time employee of a large leisure and theme park operator who was in receipt of JobKeeper was asked by her employer to take one day annual leave per week for 16 weeks. This would result in the employee having a balance of annual leave remaining in line with the legislation provisions.

The employee lodged a dispute with the Fair Work Commission claiming that the purpose of JobKeeper was not to enable employers to offset payments with leave accruals and that the direction disadvantaged any long serving employee with a large leave accrual.

Further the employee claimed that they planned to use the leave for an overseas trip in 2021 and some future shorter breaks.

The business had a policy that leave would not be approved more than 12 months in advance and had warned employees against booking and paying for holidays that had not yet been approved.  In this instance, the planned overseas trip had not yet been approved.

It was also noted that the employee had long service leave that would cover the planned absence should the leave be approved.

The Fair Work Commission rejected the employee’s case and made an order that the employee not refuse the employer’s request for them to take annual leave on a one day per week basis.  Further it was noted that the law required the employee to seriously consider the employer’s request and not to unreasonably refuse it.  The employee’s conduct was described as attacking the employer in an unwarranted, unsympathetic and belligerent manner as they were one of several employees to attack the employer on a closed Facebook group.

It is important to note that the test the Fair Work Commission will use in these situations is not about the request by the employer being unreasonable, it is about the actions of the employee and whether their refusal was unreasonable.

For further assistance regarding directing your staff to take leave, please contact us at advice@hradviceonline.com.au or 1300 720 004.

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