Annual leave – can my employer insist?

It is not uncommon during quiet periods for alarm bells to go off resulting in management reviewing the wage budget. .

Often at such times, the employer resorts to telling the employees that they must take annual leave, with the employees receiving little, if any, notice. Usually this in inconvenient and unfair for the employee, who had other plans for using their annual leave entitlement.

So do employers have a right to direct employees to take annual leave?

This may be dependent on the industrial instrument which covers the employee.

Industrial instruments, such as modern awards and enterprise agreements, set out the minimum terms and conditions an employee is entitled to receive as a condition of their employment. They frequently contain a clause which stipulates when an employer can direct an employee to take annual leave.

Often, the industrial instrument will stipulate that the employer and employee must mutually agree when annual leave is to be taken. Where they cannot agree, the employer will be able to direct an employee to take annual leave in certain circumstances, such as:

  • When the employee has an excessive annual leave balance (i.e. 8 weeks or more); or
  • Where the employer’s business is being shut down for a period (such as between Christmas and New Year).

Usually, the employer will be required to provide the employee with a minimum amount of notice before the direction to take the leave can be effective; this is often 4 or more weeks. Also, the employer frequently cannot direct an employee to take less than 1 week’s annual leave at a time.

Consequently, this means a manager often does NOT have a right to call an AIN, nurse or midwife 20 minutes before their shift is due to start to say they mustn’t come in for their shift and to take the shift off as annual leave instead. The direction can only be given if the employee also agrees to take the shift off as annual leave.

If this happens to you and you are fed up with not being able to use your annual leave as you choose, firstly check your industrial instrument. You may find you are perfectly within in your right to say ‘no, I insist on working my rostered shift and will not take the shift off as annual leave’.

If you need assistance with determining whether your manager can tell you to take annual leave at short notice, please do not hesitate to contact us.

Simply log in to the member portal at https://members.npaq.com.au/user and complete a Member Issue Form.