How to lawfully direct your staff to take excessive leave

Many people in today’s working era believe in ‘banking’ their annual leave so that there is a large payout when the time comes. 

Did you know that you are able to lawfully direct employees who have excessive annual leave and long service leave to take it?

Here is the catch…

Depending on the award that your business is aligned to and if there are any EBA’s for your employees, there are strict guidelines on how and when you can direct employees to take leave. 

I will be using the General Retail Industry Award 2020 as an example.

In this award under clause 28.5, there is a specific provision in relation to excessive leave as outlined below;

(a) An employee has an excessive leave accrual if the employee has accrued more than 8 weeks ’paid annual leave (or 10 weeks’ paid annual leave for a shiftworker, as defined by clause 28.2).

(b) If an employee has an excessive leave accrual, the employer or the employee may seek to confer with the other and genuinely try to reach agreement on how to reduce or eliminate the excessive leave accrual.

(c) Clause 28.6 sets out how an employer may direct an employee who has an excessive leave accrual to take paid annual leave.

(d) Clause 28.7 sets out how an employee who has an excessive leave accrual may require an employer to grant paid annual leave requested by the employee.

There is also a clause that describes how an employer can direct an employee to take leave.

The key points to take out of this are:

• If you have not been able to reach an agreement, the employer can direct the employee to take leave in a written request.
• You cannot affect the remaining accrued leave amount of 6 weeks.
• The employee must be directed to take no less than one week of leave.
• The leave cannot start less than 8 weeks or more than 12 months after the direction is given.

What to take out of all of this technical gibberish? 

1. First and foremost, check your award/EBA to make sure that there is an excessive leave provision. 
2. Have a conversation – talk to your employee first, and if no arrangement can be made;
3. Make your direction to take leave request in writing, and remember to follow the rules outlined in the award. 

Of course, help is available if you need it! Key Business Advisors is equipped with well trained, experienced HR professionals that can help you with all of your excessive leave questions. 

KBA offers free webinars, online training, and useful information to help your company grow. 

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