The Fair Work Commission has made its first ruling concerning the new provisions for JobKeeper under the Fair Work Act 2009. The Fair Work Commission ruled against an employee who claimed her employer unreasonably requested she used her annual leave while stood down and receiving JobKeeper.

A long-serving (22 years) part-time employee, usually working two days a week, at Village Roadshow Theme Parks was stood down after COVID-19 restrictions were implemented and the theme park could no longer operate. As a result, she received the JobKeeper subsidy of $750 a week, a significant increase from what she was previously earning. Village Roadshow Theme Parks then implemented a policy requesting all permanent employees with over two weeks accrued leave to take leave during the JobKeeper payment period, or until their leave balance reduced to the two-week minimum. Therefore, the employee was asked to take one day per week annual leave until her leave balance reduced to four days or COVID-19 restrictions ended so her employer could mitigate future business costs.

The employee refused the request to take annual leave arguing it was unfair and disadvantaged long-serving employees with large leave accruals. The employee stated she had been saving her accrued annual leave for several future holidays she had planned (some paid for) later in 2020 and in 2021. The employee claimed the request was unreasonable and lodged a dispute with the Fair Work Commission.

The employer claimed the employee was unreasonably refusing, as they had requested all permanent employees receiving JobKeeper to do the same. The employer had not approved her leave for future holidays. Their leave policy did not allow approval of leave requests more than 12 months in advance and as such Village Roadshow Theme Parks warned employees against booking holidays in advance as approval was not guaranteed. Furthermore, the employee had accrued enough long service leave to cover her planned holidays.

The Fair Work Commission ruled against the employee and stated she had to seriously consider her employers request to take annual leave. The Fair Work Commission decided employers can request employees on JobKeeper to use their leave entitlements however, the employee must be able to retain accrual of at least 10 days (for fulltime employees, pro-rata for part-time) and employees can not unreasonably refuse requests to do so. 

If your business needs assistance with leave entitlements or JobKeeper for employees contact ProcessWorx on (08) 9316 9896 or enquiries@processworx.com.au

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