The Legality of Being Directed to Take Leave Without Pay or Annual Leave in Australia

This post is way out of left field compared to what I normally talk about, but I put great importance on doing the right thing by people and supporting people in the workplace. If you’ve found yourself in this situation, it’s crucial to know your rights.

Recently, I’ve heard of instances where employees within the industry have been asked to take leave without pay or directed to take annual leave. While these practices may seem like quick solutions for companies, they can be illegal under Australian law. I am by no means claiming to be an expert in this field, however, we can review the legal aspects of these practices by referencing the Fair Work Ombudsman’s guidelines.

Leave Without Pay

According to the Fair Work Ombudsman, a stand down is different from unpaid leave. Employers can tell employees not to work if the employees can’t be usefully employed for reasons outside the employer’s control, such as equipment breakdown, industrial action, or severe weather. This is called a stand down. During a stand down, employees don’t work, don’t have to be paid, but stay employed. Unpaid leave, on the other hand, can only be taken with the agreement of the employer, as in, you the employee, should be the one requesting unpaid leave, not your employer requesting you to take leave because there is not enough project work to do. You can read more here.

Directed Annual Leave

Employees can be directed to take annual leave during a shutdown such as over the Christmas period if their award or agreement allows it, or even if an award or agreement doesn’t cover them. However, asking an employee to take leave without pay is not permitted unless there’s a mutual agreement between the employer and the employee. You can read more about annual leave here.

What Can You Do?

If you find yourself in a situation where you’re being asked to take leave without pay or directed to take annual leave without proper justification, it’s crucial to know your rights. Consult the Fair Work Ombudsman’s guidelines and consider seeking legal advice.

The one thing to remember – you are not in any way obligated to agree to take unpaid leave. It is your employer’s responsibility to find work for you and continue to pay you; the work may be beneath what you normally work on, such as filing, developing standards, or writing process documents. These things are still work that are required by the business.

What If I Feel Pressured or Bullied Into Taking Leave?

If you feel like you’ve been pressured or bullied into taking leave by your manager, it’s essential to know that you have options and rights. Workplace bullying is a serious issue and is covered under Australian law. According to the Fair Work Ombudsman, bullying occurs when:

• You are repeatedly mistreated by an individual or group of individuals.
• The behaviour creates a risk to your health and safety.

If you believe you’re experiencing bullying related to taking leave, you can:

1. Speak Up: The first step is to talk to the person bullying you, if you feel safe doing so. Make it clear that the behaviour is unacceptable.
2. Consult Your Workplace Policies: Your workplace should have policies in place that outline how to report bullying and harassment. Follow these guidelines.
3. Seek External Help: If internal avenues don’t resolve the issue, contact national bodies like the Fair Work Ombudsman for assistance.

Remember, you’re not alone and don’t have to tolerate bullying in any form, including being pressured to take leave.

Where to From Here?

While the pressures of the AEC industry can make leave a complex issue, knowing your rights and the legal boundaries that employers must respect is essential. You can always refer to the Fair Work Ombudsman’s guidelines in Australia for the most accurate and up-to-date information.