MA000112  PR583026
FAIR WORK COMMISSION

DETERMINATION


Fair Work Act 2009

s.156 - 4 yearly review of modern awards

4 yearly review of modern awards—Annual leave
(AM2014/47)

LOCAL GOVERNMENT INDUSTRY AWARD 2010
[MA000112]

Local government administration

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT KOVACIC
COMMISSIONER HAMPTON

MELBOURNE, 29 JULY 2016

4 yearly review of modern awards - annual leave common issue.

A. Further to the Full Bench decision issued by the Fair Work Commission on 24 June 2016 1, the above award is varied as follows:

1. By deleting clause 25.5–Requirement to take annual leave—excessive accrual and annual close down and inserting the following:

25.5 Annual close-down

An employer may require an employee to take annual leave as part of a close-down of its operations by giving at least four weeks’ notice.

2. By renumbering clause 25.6 as 25.9.

3. By inserting a new clause 25.6 as follows:

25.6 Excessive leave accruals: general provision

Note: Clauses 25.6 to 25.8 contain provisions, additional to the National Employment Standards, about the taking of paid annual leave as a way of dealing with the accrual of excessive paid annual leave. See Part 2.2, Division 6 of the Fair Work Act.

(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 25.2).

(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 25.7 sets out how an employer may direct an employee who has an excessive leave accrual to take paid annual leave.

(d) Clause 25.8 sets out how an employee who has an excessive leave accrual may require an employer to grant paid annual leave requested by the employee.

4. By inserting a new clause 25.7 as follows:

25.7 Excessive leave accruals: direction by employer that leave be taken

(a) If an employer has genuinely tried to reach agreement with an employee under clause 25.6(b) but agreement is not reached (including because the employee refuses to confer), the employer may direct the employee in writing to take one or more periods of paid annual leave.

(b) However, a direction by the employer under paragraph (a):

(c) The employee must take paid annual leave in accordance with a direction under paragraph (a) that is in effect.

(d) An employee to whom a direction has been given under paragraph (a) may request to take a period of paid annual leave as if the direction had not been given.

5. By inserting clause 25.8 as follows:

25.8 Excessive leave accruals: request by employee for leave

(a) Clause 25.8 comes into operation from 29 July 2017.

(b) If an employee has genuinely tried to reach agreement with an employer under clause 25.6(b) but agreement is not reached (including because the employer refuses to confer), the employee may give a written notice to the employer requesting to take one or more periods of paid annual leave.

(c) However, an employee may only give a notice to the employer under paragraph (b) if:

(d) A notice given by an employee under paragraph (b) must not:

(e) An employee is not entitled to request by a notice under paragraph (b) more than 4 weeks’ paid annual leave (or 5 weeks’ paid annual leave for a shiftworker, as defined by clause 25.2) in any period of 12 months.

(f) The employer must grant paid annual leave requested by a notice under paragraph (b).

6. By deleting renumbered clause 25.9–Leave in advance and inserting the following:

25.9 Annual leave in advance

(a) An employer and employee may agree in writing to the employee taking a period of paid annual leave before the employee has accrued an entitlement to the leave.

(b) An agreement must:

(c) The employer must keep a copy of any agreement under clause 25.9 as an employee record.

(d) If, on the termination of the employee’s employment, the employee has not accrued an entitlement to all of a period of paid annual leave already taken in accordance with an agreement under clause 25.9, the employer may deduct from any money due to the employee on termination an amount equal to the amount that was paid to the employee in respect of any part of the period of annual leave taken in advance to which an entitlement has not been accrued.

7. By inserting clause 25.10 as follows:

25.10 Cashing out of annual leave

(a) Paid annual leave must not be cashed out except in accordance with an agreement under clause 25.10.

(b) Each cashing out of a particular amount of paid annual leave must be the subject of a separate agreement under clause 25.10.

(c) An employer and an employee may agree in writing to the cashing out of a particular amount of accrued paid annual leave by the employee.

(d) An agreement under clause 25.10 must state:

(e) An agreement under clause 25.10 must be signed by the employer and employee and, if the employee is under 18 years of age, by the employee’s parent or guardian.

(f) The payment must not be less than the amount that would have been payable had the employee taken the leave at the time the payment is made.

(g) An agreement must not result in the employee’s remaining accrued entitlement to paid annual leave being less than 4 weeks.

(h) The maximum amount of accrued paid annual leave that may be cashed out in any period of 12 months is 2 weeks.

(i) The employer must keep a copy of any agreement under clause 25.10 as an employee record.

8. By inserting Schedule H—Agreement to Take Annual Leave in Advance as follows:

Schedule H—Agreement to Take Annual Leave in Advance

Name of employee: _____________________________________________

Name of employer: _____________________________________________

The employer and employee agree that the employee will take a period of paid annual leave before the employee has accrued an entitlement to the leave:

The amount of leave to be taken in advance is: ____ hours/days

The leave in advance will commence on: ___/___/20___

Signature of employee: ________________________________________

Date signed: ___/___/20___

Name of employer
representative: ________________________________________

Signature of employer
representative: ________________________________________

Date signed: ___/___/20___

[If the employee is under 18 years of age - include:]

I agree that:

if, on termination of the employee’s employment, the employee has not accrued an entitlement to all of a period of paid annual leave already taken under this agreement, then the employer may deduct from any money due to the employee on termination an amount equal to the amount that was paid to the employee in respect of any part of the period of annual leave taken in advance to which an entitlement has not been accrued.

Name of parent/guardian: ________________________________________

Signature of parent/guardian: ________________________________________

Date signed: ___/___/20___

9. By inserting Schedule I—Agreement to Cash Out Annual Leave as follows:

Schedule I—Agreement to Cash Out Annual Leave

Name of employee: _____________________________________________

Name of employer: _____________________________________________

The employer and employee agree to the employee cashing out a particular amount of the employee’s accrued paid annual leave:

The amount of leave to be cashed out is: ____ hours/days

The payment to be made to the employee for the leave is: $_______ subject to deduction of income tax/after deduction of income tax (strike out where not applicable)

The payment will be made to the employee on: ___/___/20___

Signature of employee: ________________________________________

Date signed: ___/___/20___

Name of employer
representative: ________________________________________

Signature of employer
representative: ________________________________________

Date signed: ___/___/20___

Include if the employee is under 18 years of age:

Name of parent/guardian: ________________________________________

Signature of parent/guardian: ________________________________________

Date signed: ___/___/20___

10. By updating the table of contents and cross-references accordingly

11. By deleting clause 25.8 and inserting the following:

25.8 Excessive leave accruals: request by employee for leave

(a) If an employee has genuinely tried to reach agreement with an employer under clause 25.6(b) but agreement is not reached (including because the employer refuses to confer), the employee may give a written notice to the employer requesting to take one or more periods of paid annual leave.

(b) However, an employee may only give a notice to the employer under paragraph (a) if:

(c) A notice given by an employee under paragraph (a) must not:

(d) An employee is not entitled to request by a notice under paragraph (a) more than 4 weeks’ paid annual leave (or 5 weeks’ paid annual leave for a shiftworker, as defined by clause 25.2) in any period of 12 months.

B. Items 1 to 10 of this determination come into operation from 29 July 2016. In accordance with s.165(3) of the Fair Work Act 2009 these items do not take effect until the start of the first full pay period that starts on or after 29 July 2016.

C. Item 11 of this determination comes into operation from 29 July 2017. In accordance with s.165(3) of the Fair Work Act 2009 this item does not take effect until the start of the first full pay period that starts on or after 29 July 2017.

PRESIDENT

 1   [2016] FWCFB 3953; see also [2015] FWCFB 3406, [2015] FWCFB 5771 and [2016] FWCFB 3177

Printed by authority of the Commonwealth Government Printer

<Price code C>