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!
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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!
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