A ruling earlier this year from the Fair Work Commission has changed the rules around employee leave during office closure period.

As a result of this 4 yearly review of modern awards, from 1 May 2023, employers may no longer require an employee to take unpaid leave during an office closure period.

This is an extensive list of awards and includes the Clerks- Private Sector Award, and the General Retail Industry Award.

This has implications for situations where an employee may not have sufficient annual leave to last the entire office closure period.

What happens if an employee does not have sufficient leave?

Pursuant to the new rules, an employer has four options.

  1. The employer and the employee may agree for the employee to take unpaid leave during the office closure. This needs to be genuine consent from the employee and agreed in writing.
  2. If permitted by the applicable award, the employee may agree to take leave in advance over the office closure period.
  3. The employer may find work that is in line with the employee's award and direct the employee to continue working during this period.
  4. If the employee does not agree to take unpaid leave or leave in advance and the employer does not have any work to assign, the employer will have to pay the employee for any days during the closure period which is not covered by the employee's accrued leave without the employee having to work.

Can I avoid such a situation?

In the future, employers may be able to take certain steps to avoid this situation.

In situations where an employer cannot reasonably be held responsible for the closure of the work place, employers may be entitled to direct employees to stand down pursuant to s 524 of the Fair Work Act. For example, if a head contractor closes down a building site over the Christmas / New Year period, a sub-contractor is likely to not be reasonably held responsible for the stoppage of work.

In businesses where the office closure is an established feature, employers may, within reason, refuse leave requests in the period leading up to the closure on the basis that the employee would not have sufficient annual leave. This is likely to not fall under the definition of 'unreasonably' in s 88(2) of the Fair Work Act unless there were some strong countervailing factors.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.