Ask LH: Can My Boss Force Me To Take Annual Leave During Holiday Shutdown Periods?

Dear Lifehacker, I'm saving up my leave for a big holiday in July/August next year. My company has a Christmas shutdown and is forcing all employees to take these days off from their personal annual leave entitlements. However, staff who they deem as essential are able to work on these days and not lose their annual leave. Is this legal and is there any way for those of us that are "non-essential" to combat it as it sounds very unfair? Thanks, Leave My Leave Alone!

Closed sign picture from Shutterstock

Dear LMLA,

It is common practice for businesses to enforce paid annual leave during Christmas shutdown periods. This isn't exactly unfair -- you can't expect to receive a normal day's pay when you're not actually doing any work.

Certain criteria must be met before an employer can direct you to take annual leave, however. This is all covered in the Fair Work Ombudsman website:

In order for an employer to be able to do this, an award or agreement must include terms that require an employee to take paid annual leave, or allow the employee to be directed to take leave. The requirement in the award or agreement must be reasonable. Similarly, the NES allow an employer to require an award or agreement-free employee to take a period of annual leave, but only if the requirement is reasonable.

Circumstances where enforced annual leave is considered reasonable include the employee having accrued an excessive amount of paid annual leave and -- this bit concerns you -- the employer’s enterprise being shut down for a set period. In other words, your employer is perfectly within their rights to enact this rule, even if it isn't specifically mentioned in your contract.

The other part of your question is a little greyer. Is it fair for "essential" employees to be rostered on while others are forced to take annual leave? On the surface, this seems to be highly discriminatory. Sadly, this is also above board in most circumstances. As the Fair Work Ombudsman explains:

In assessing reasonableness, the following factors are relevant:  

  • the needs of the employee and the employer’s business
  • any agreed arrangement with the employee
  • custom and practice of the business
  • timing of the direction or requirement to take leave
  • reasonableness of the period of notice given

The essentialness of employees would fall under "the needs of the employer's business", which means you're basically out of luck. With that said, you might still be able to wrangle a compromise with your manager. Explain your plans for July and see if they can find a place for you on the holiday roster. Another option would be to take unpaid leave over the December break. As a last resort, you may be able to take paid annual leave in advance of accrual to cover your holiday. Good luck!

Cheers Lifehacker

Have a question you want to put to Ask Lifehacker? Send it using our contact form.


Comments

    I used to work for a Local government organization and they had about a weeks forced closure every year where we had to take forced annual leave.
    Shit out of luck if you already used it all lol

    If you want to save up your annual leave, just take unpaid leave over the shutdown period instead.

    There is nothing discriminatory about mandating work hours to different roles with different functions. It's fucking business requirements, not a punishment/reward.

    What a frustrating mindset.

    We have a major problem with teams in our area who didn't want to eat into their recreation leave for our mandatory closure and instead have been trying to work up TOIL by turning up ridiculously early in the morning and working stupidly late into the night. And that would be fine if we had work for them to do, but because those particular teams are light on work what this essentially means is that they're expecting the department to pay them to sit on their asses, twiddling their thumbs.

    No. That is not what TOIL is for. There is absolutely ZERO benefit to having those people here for that time. They think that racking up hours is the same as racking up work, even if no work is being done.

    Maddeningly, they don't see a problem with that, and think it's unfair that they should have to use their recreation leave while we're closed.

      Tell them they have a choice, for date range x, they can either
      a) take annual leave
      b) take unpaid leave
      c) come to work, sit out the front (because its closed) for 8 hours for no pay

      I agree people shouldn't be paid for not turning up (unless its a paid leave of course) but if the place of business is closed or on skeleton staff due to lack of work over the holiday period, there is nothing for them to do.

      Frankly I've never understood why you'd care if you get paid leave now or in 5 months time for that leave, just as long as they don't reject your leave request based on the fact you have no paid leave time left.

      Take it put it in the bank, get an extra few cents interest, take your holiday when you want (get the leave request in early to make sure you get it).

      They think that racking up hours is the same as racking up work, even if no work is being done.

      If you pay them by the hour, then it essentially is. Too bad so sad.

        That's why they've been told they're not allowed, but they're upset about it because apparently getting paid extra hours of the day to do no extra work in order to bank up that time for taking off paid later is something they should be entitled to do.

    You can also consider asking for half pay leave. If losing a weeks pay is not an option, and losing a full weeks leave isnt an option either, it might be enough to cut your losses in both areas and squeeze through.

    Just a thought.

    How are they able to build up TIL by rocking up early/staying late? If you are rostering the staff (which i assume you are if they are entitled to TIL in lieu of OT), then you can simply force them to only work their scheduled hours. If they rock up early, too bad, you have to sit on your ass on your own time until the scheduled start of your shift before i start giving you work to do/paying you.

    Just because a staff member is present at the work site/office, doesn't mean you are obligated to give them work/pay them

      Some places (like government) allow for limited TIL within reasonable ranges. Eg: Rock up for 8hrs a day instead of the standard 7.25, and eventually take a day off at your leisure (with supervisor's approval) with the banked-up time. 'Flexible working arrangements' etc.

      But some folks take it too far, trying to build up hours when there is no good reason to be there and no work to do. And that's when you have to put your foot down and explain that they can't do that. They can certainly be here but not be on the clock.

    This is why I like my current employer. Our enterprise agreement states that we shutdown for the period between Christmas Day and New Year's Day, and we are paid without it coming out of any leave entitlements!

      That's how it should be. If you're forced to stay home because of christmas shutdown then that should be at a cost of the business i.e full pay not taken leave.

Join the discussion!

Trending Stories Right Now