You do not have to approve unpaid leave to take a holiday. If the employee threatens to take the leave anyway, you can warn the employee that you will terminate their employment if they take an unauthorised absence from work.
You could offer to advance them paid annual leave on condition that they authorise you to deduct the amount advanced from any amounts otherwise owing to the employee if their employment ends before accruing the amount of leave advanced.
Depending on how section 89 (2) of the Fair Work Act is interpreted, there is no strict legal entitlement for an employee to take personal leave during a period of annual leave. However, there is room for HR intervention.
If the employee can satisfy the notice and evidence requirements of the personal/carer's leave provisions of the Fair Work Act, then yes, that period of time can be taken as personal/carer's leave assuming that the employee has an available personal/carer's leave balance.
So in many cases where a person becomes sick during annual leave, a decision is made on the basis of evidence and good HR judgement to cancel the annual leave and replace it with personal leave.
Annual leave payments are calculated on the rate that would have been paid if the employee had worked ordinary hours for the leave period. In this case the leave payment should be calculated on the different pay rate.
No, provided you give the employee a reasonable opportunity to respond to the allegations and the evidence when he/she returns from leave.
This is not defined in the FW Act. However, we expect that 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 that the refusal will have on the employee.
You work out how much the employee would have received at the base rate of pay if they worked ordinary hours during the period of the leave. Base rate refers to wages and salary and does not include overtime, allowances or other separately identifiable amounts of remuneration. Some employees may be entitled to annual leave loading as stipulated in their employment contract, modern award or enterprise agreement, so this will need to be paid in addition to the base rate.
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 ordinarily have to pay this when and employee takes approved annual leave, as well as on unused accrued leave paid out on termination.
Use this checklist to determine whether you can cash out annual leave:
If an enterprise agreement applies to the employee's employment, it must contain a cashing out clause that requires that:
· "cashing out" not leave the employee with a leave accrual less than 4 weeks
· each cashing out be achieved by separate written agreement between the employer and employee
· the 'cash' be equal to the amount the employee would have received if the employee had taken the leave
If so, you can cash out the leave in accordance with the term. If the enterprise agreement does not include a cashing out term (or the term does not impose the above requirements) you cannot cash out annual leave.
NB the above also applies if a modern award applies to the employee's employment and provides for cashing out.
However, as at February 2013 no modern award provides for cashing out of annual leave. Therefore, if a modern award applies to the employee no cashing out is permissible.
If the employee is award/agreement free, then cashing out is only permissible if:
· "cashing out" does not leave the employee with a leave accrual less than 4 weeks
· each cashing out is achieved by separate written agreement between the employer and employee
· the 'cash' paid be equal to the amount the employee would have received if the employee had taken the leave
The requirement that the 'cash' be equal to the amount the employee would have received if the employee had taken the leave is measured as at the time of cashing out. The amount must include leave loading if that would have been payable.
You can require employees to take annual leave if the requirement is reasonable. Factors determining reasonableness include the reasons for imposing the requirement and the notice given of the requirement. It will be reasonable during Christmas shutdowns or when accrual is excessive (provided the employee understand when leave is excessive and is given reasonable warning that he or she needs to run down accrual). Modern awards and enterprise agreements often provide clauses dealing with directions to take annual leave so these should be consulted when considering a direction of this nature.
Yes, if the compensation is paid under Commonwealth or Queensland workers compensation legislation. In other cases, no.
Under the Long Service Leave Act (1955), employers must give their employees who are eligible to take long service leave at least one month's notice of the date from which it is proposed that the worker's long service leave shall be given and taken. Generally speaking, the employer and employee will agree to a date and period of leave that suits both parties, however, provided the requisite notice period is provided to the employee, an employer could direct them to take the leave.
Part 2 12. of the Victorian Long Service Leave Act specifies that an employee's service (for the purposes of accumulating long service leave) will be continuous during a period of absence from work that is approved by the employer (paid or unpaid) and is specified in the employee's employment agreement. Accordingly, if the employee's employment agreement was varied to account for their change in location, this would count as service and the employee could be eligible for long service leave pay.