Excessive Annual Leave – Modern Awards

In May, a decision of the Fair Work Commission provided changes to 80 Modern Awards to include a model clause relating to when employers can require employees to take an excess amount of annual leave. The decision to insert these provisions was made on the basis that inclusion of the provisions would continue to ensure that the Modern Awards provide a fair and relevant minimum safety net for employees whilst allowing flexibility for businesses and promoting productivity and economic growth for Australia's future economic prosperity.

The model clause relates to the direction by employers for an employee to take excess annual leave (more than 8 weeks accrued) subject to the following:

  1. The employer must first genuinely try to reach agreement with an employee to take excess annual leave

  2. Where no agreement can be reached, the employer may direct the employee in writing to take one or more periods of paid annual leave subject to the following:

  • The employee’s remaining accrued entitlement to paid annual leave after the requirement to take excessive leave must be more than 6 weeks;

  • The taking of leave must not provide that the employee take a period of paid annual leave of less than one week;

  • The taking of leave must not provide for the employee to take a period of paid annual leave beginning less than 8 weeks, or more than 12 months, after the direction/notice is given; and

  • Must not be inconsistent with any leave arrangement agreed by the employer and employee.

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