Who can use this correspondence?
This document can be used by all employers throughout Australia, except the following excluded employers:
• non-constitutional corporation employers in Western Australia;
• state public sector employees (ie employees of a Minister, the Governor, or the Crown) except in Victoria (however, some Victorian employees such as senior public servants are not in the national system and this document cannot be used in respect of them); and
• local government employers — except in Tasmania and Victoria.
Excluded employers may however, wish to use this document, but they should first obtain legal advice.
Commentary
Federal workplace law allows non-excluded employers to direct their employees to take accrued annual leave if the business (or part of the business) shuts down for a period, for example over the Christmas–New Year period, and the request is reasonable. This letter assists employers with how to inform their employees of a shut down period. If an employer has multiple shut downs during a year then they should seek advice as to whether they can require employees to take leave during each shut down period.
The letter is intended to be used for employees who are not covered by an award or enterprise agreement, since for employees covered by an award or enterprise agreement the terms of those instruments will likely prescribe the circumstances in which an employee can be directed to take leave. The letter is consistent with the terms of the Fair Work Act 2009 (Cth) ('the Act') with respect to the requirements of taking paid annual leave.
Warning: If you use this letter for an award or enterprise agreement covered employee, you must ensure you have read that instrument and considered whether this letter complies with the requirements under that modern award or enterprise agreement in regards to taking leave in advance and whether or not the business is even permitted to shut down. If in doubt, seek legal advice.
Can I require employees to take unpaid leave during a shut down period
If an employee does not have enough accrued annual leave to cover the shut down period, the employee may agree (but cannot be required) to take unpaid leave or annual leave in advance. In other words, it will generally not be considered reasonable to require an employee to take a period of unpaid leave or leave in advance, unless the employee consents or has consented to do so within the terms of the employment contract.
There is an optional section in the letter that you can use to record an employee’s agreement to take unpaid leave or leave in advance.
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