MA000054  PR588738
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)

ASPHALT INDUSTRY AWARD 2010
[MA000054]

Asphalt industry

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT KOVACIC
COMMISSIONER HAMPTON

MELBOURNE, 20 DECEMBER 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 19 December 2016 1, the above award is varied as follows:

1. By deleting clause 25.5 and inserting the following:

25.5 Excessive leave accruals: general provision

Note: Clauses 25.5 to 25.7 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 25.6 sets out how an employer may direct an employee who has an excessive leave accrual to take paid annual leave.

(d) Clause 25.7 sets out how an employee who has an excessive leave accrual may require an employer to grant paid annual leave requested by the employee.

2. By renumbering clauses 25.6 to 25.8 as 25.8 to 25.10.

3. By inserting new clause 25.6 as follows:

25.6 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 25.5(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.

Note 1: Paid annual leave arising from a request mentioned in paragraph (d) may result in the direction ceasing to have effect. See clause 25.6(b)(i).

Note 2: Under section 88(2) of the Fair Work Act, the employer must not unreasonably refuse to agree to a request by the employee to take paid annual leave.

4. By inserting new clause 25.7 as follows:

25.7 Excessive leave accruals: request by employee for leave

(a) Clause 25.7 comes into operation from 20 December 2017.

(b) If an employee has genuinely tried to reach agreement with an employer under clause 25.5(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).

5. By updating the cross-references accordingly.

6. By deleting clause 25.7 and inserting the following:

25.7 Excessive leave accruals: request by employee for leave

(a) If an employee has genuinely tried to reach agreement with an employer under clause 25.5(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.

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

B. Items 1 to 5 of this determination come into operation from 20 December 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 20 December 2016.

C. Item 6 of this determination comes into operation from 20 December 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 20 December 2017.

PRESIDENT

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 1   [2016] FWCFB 9074

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