On 13 May 2020 the Fair Work Commission released its decision addressing an employer’s entitlement to require an employee to take annual leave while on the JobKeeper Payment scheme.

McCreedy v Village Roadshow Theme Parks Pty Ltd [2020] FWC 2480

Ms McCreedy was a part-time worker, working on average 15 hours per week at Village Roadshow Theme Park Pty Ltd (“the Roadshow”). She had been an employee of the Roadshow for approximately 22 years.

On 23 March 2020 Ms McCreedy was stood down and provided the JobKeeper payment of $750 per week, which exceeded her usual wage.

On 29 April 2020 the Roadshow issued Ms McCreedy with a letter requesting that she take annual leave while being stood down (“Annual Leave Request Letter”).

Relevantly, the Annual Leave Request Letter requested that:

  • All employees with an annual leave balance of more than 10 working days will be asked to take 2.5 days per week of annual leave;
  • 2 weeks annual leave will be maintained, including a pro rata entitlement for part time employees.

In Ms McCreedy’s case, as a part time employee, she was requested to take 1 day annual leave per week until her annual leave balance reached 4 days.

The JobKeeper legislation amends the Fair Work Act, allowing employers to direct employees to take annual leave. The legislation provides that the employee is not able to unreasonably refuse the request¹, providing the employer maintains a minimum balance of 2 weeks leave at all times².

Ms McCreedy objected to using annual leave and filed a claim in the Fair Work Commission.

Ms McCreedy opposed the reduction in her annual leave entitlements on the basis that she had planned various overseas holidays from September 2020 to June 2021. It was noted, and importantly, Ms McCreedy had not had this annual leave approved.

The Commission found that Ms McCreedy had unreasonably refused the request and was therefore required to take annual leave as directed by the Roadshow. The Commission expressly stated that the fact that Ms McCreedy received a sum under the JobKeeper scheme which greatly exceeded her ordinary pay was not a factor which the Commission took into consideration in making its decision.

This is an important decision outlining the rights of employers and employees in the face of the new JobKeeper legislation.

Should you require any clarity on the options available to you as an employer or an employee, please call our office on (07) 3211 2233 or enquire using the form below.

1: Section 789GJ of the Fair Work Act 2009 (Cth)

2: Ibid s789GJ