Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards – Annual leave
(AM2014/47)
JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT KOVACIC
COMMISSIONER HAMPTON MELBOURNE, 24 JUNE 2016
4 yearly review of modern awards - common issue - annual leave – draft determinations –
finalisation of plain language re-drafts – confirmation of provisional views
1. Background
[1] On 23 May 2016 the Full Bench issued a decision1 (the May 2016 decision) dealing
with the variation of modern awards in relation to a number of matters regarding paid annual
leave. There were three main aspects to the May 2016 decision.
[2] First, the decision varied particular modern awards to insert the model terms in respect
of:
(i) cashing out of annual leave;
(ii) electronic funds transfer and paid annual leave;
(iii) granting annual leave in advance; and
(iv) excessive annual leave.
[3] Draft determinations were published to provide interested parties with an opportunity
to comment. A number of submissions were received and these are set out at Attachment A
to this decision.
[4] Second, the decision proposed some redrafting of three model terms – cashing out of
annual leave; annual leave in advance; and excessive annual leave.
[5] Third, a number of provisional views were expressed regarding the variation of certain
modern awards to insert particular model terms.
2. The Draft determinations
[6] Attachment 6 to the May 2016 decision set out the modern awards into which
particular model terms were to be inserted. Some minor errors were identified in the draft
[2016] FWCFB 3953
DECISION
E AUSTRALIA FairWork Commission
[2016] FWCFB 3953
2
determinations giving effect to the May 2016 decision and these will be corrected in revised
draft determinations to be published this week. The award specific matters to be addressed in
the revised draft determinations are summarised below:
Aircraft Cabin Crew Award 2010: as determined in the May 2016 decision2, the
Full Bench has deferred its consideration of whether the excessive leave model term
is to be inserted into this award. The revised variation determination will retain the
existing excessive leave term and not insert the model term into the award.
Black Coal Mining Award 2010: the May 2016 decision3 determined that this award
would be varied to insert the EFT and paid annual leave model term. The Full
Bench also decided that clause 25.8 of the award would need to be varied to avoid
any confusion between the operation of the model term and that clause. The draft
determination did not vary clause 25.8 and this omission will be rectified in the
revised draft determination.
Food, Beverage and Tobacco Manufacturing Award 2010: Australian Industry
Group (Ai Group) identified a cross referencing error in the proposed clause
34.7(a), the reference should be to clause 34.3, not clause 31.3. This error will be
rectified in the revised draft determination.
Market and Social Research Award 2010: The draft determination in respect of this
award proposed replacing the current clause 23.3 with the model leave in advance
clause and inserting the EFT model term as new clause 23.4. Ai Group submits that
the decision to replace the current clause 23.3 in its entirety with model leave in
advance provision will necessarily mean that clause 23 no longer deals expressly
with ‘when’ an employee must be paid for a period of annual leave and, as a result
the model EFT clause is no longer necessary because clause 23 will not expressly
require an employer to pay an employee before the start of their leave. We agree
with Ai Group’s submission and the revised draft determination will be varied
accordingly.
Waste Management Award 2010: The issue in this award concerns the definition of
‘shiftworker’ for the purposes of s.87(1)(b) of the Fair Work Act 2009 (Cth) (FW
Act). The Full Bench has previously indicated4 that this issue will be deferred to
the Award Stage of the review of this award. Accordingly, the words ‘as defined in
clause 33.2’ will be removed from clause 33.6(a) of the draft determination.
3. Plain language re-drafts
[7] As mentioned above, the May 2016 decision proposed some redrafting of three of the
model terms – cashing out of annual leave; annual leave in advance; and excessive annual
leave. The changes proposed were intended to make these terms easier to understand, they
were not intended to change the substantive effect of any of the model terms.
[8] Attachment 2 to the May 2016 decision is a comparative document comparing the
September 2015 annual leave model terms with the May 2016 plain language model terms.
For ease of reference this document is set out at Attachment B to this decision.
[2016] FWCFB 3953
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[9] Submissions were received from Ai Group, the Automotive, Food, Metals,
Engineering, Printing and Kindred Industries Union (AMWU) and the Textile, Clothing and
Footwear Union of Australia (TCFUA) in respect of the plain language re-drafts of these
model terms. It is convenient to deal with each of the model terms separately and to start with
the leave in advance model term.
(i) Leave in advance
[10] Clause 1.1(b)(i) of the May 2016 plain language model term provides as follows:
‘1.1(b) An agreement must:
(i) state the amount of leave to be taken in advance and when it is to be
taken; …’
[11] The AMWU submits that clause 1.1(b)(i) should be amended to specify the exact date
on which the leave is to be taken. It is submitted that the existing clause 1.1(b)(i) may give
rise to ‘imprecise approximations’ (ie ‘two weeks from now’, ‘next month’ etc). The AMWU
proposes replacing clause 1.1(b)(i) with the following:
‘1.1(b) An agreement must:
(i) state the amount of leave to be taken in advance and the date on which
the leave is to be taken.’ (emphasis added)
[12] We agree that the lack of precision in the current clause 1.1(b)(i) may give rise to
problems of the kind suggested by the AMWU. However rather than requiring that an
agreement specify ‘the date on which the leave is to be taken’ it makes more sense to refer to
the date on which the leave is to commence. We will vary clause 1.1(b)(i) as follows:
‘1.1(b) An agreement must:
(i) state the amount of leave to be taken in advance and the date on which
the leave is to commence.’
[13] Ai Group submits that clause 1.1(d) of the May 2016 plain language model term is
‘potentially unclear in its application and operation’. Clause 1.1(d) states:
‘If, on the termination of the employee’s employment, the employee has not accrued an
entitlement to a period of paid annual leave already taken in accordance with an agreement
under clause 1.1, the employer may deduct from any money due to the employee on
termination an amount equal to the amount already paid to the employee in respect of that
annual leave taken.’ (emphasis added)
[14] Clause 1.1(a) of the model term permits an employer and employee to agree to the
employee taking a period of paid annual leave before the employee has accrued an entitlement
to the leave. Clause 1.1(d) is expressed to apply where ‘the employee has not accrued an
entitlement to a period of paid annual leave already taken in accordance with an agreement
under clause 1.1’.
[15] The essence of Ai Group’s concern is set out at paragraphs 12 – 13 of its submission
of 2 June 2016:
[2016] FWCFB 3953
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‘We are concerned that clause 1.1(d) does not make clear that it operates in circumstances
where an employee has taken leave in advance and the employee has not accrued some or all
of the entitlement to that leave. Rather, clause 1.1(d) may be construed as referring to the
entire period of paid annual leave already taken, as agreed under clause 1.1(a).
We also raise the following concern arising from the concluding words of the clause. They
enable an employer to deduct any amount of money due to an employee on termination that is
equal to “the amount already paid to the employee in respect of that annual leave taken”.
When read in conjunction with the clause as a whole, the underlined words appear to refer to
the entire period of annual leave taken in advance. The provision does not contemplate the
subsequent accrual of annual leave by the employee. That is to say, the provision makes no
accommodation for the possibility that an entitlement to part of the annual leave taken in
advance may since have accrued to the employee.’
[16] Ai Group proposes that clause 1.1(d) be replaced by the following:
‘If the employee’s employment is terminated before they have accrued all of the
entitlement to paid annual leave which they have taken, then the employer may deduct
an amount equal to the difference between the employee’s accrued annual leave
entitlement and the leave taken in advance, from any monies due to the employee on
termination.’
[17] The AMWU and TCFUA support the alternate formulation proposed by Ai Group. We
agree that the issue raised by Ai Group needs to be addressed, but we do not agree with the
means proposed.
[18] The issue here arises from reading the highlighted text in the plain language version
(see paragraph [13] above) as referring to the full period of the leave taken in advance, rather
than just to the period of any leave taken in advance that has not accrued at the time of
termination. We agree that such a reading is reasonably open.
[19] Greater clarity is desirable, but the rewording proposed by Ai Group is not
appropriate. If read literally, it provides for a period of leave (’an amount equal to the
difference between the ... accrued annual leave ... and the leave taken’) to be deducted from a
monetary amount (’any monies due to the employee’). The model term as previously
expressed also had this problem.
[20] We will vary clause 1.1(d) as follows:
‘If, on the termination of the employee’s employment, the employee has not accrued an
entitlement to all of a period of paid annual leave already taken in accordance with an
agreement under clause 1.1, the employer may deduct from any money due to the employee
on termination an amount equal to the amount already that was paid to the employee in respect
of any part of the period of that annual leave taken in advance to which an entitlement has not
been accrued.’
[21] In addition to the issue raised by Ai Group, the TCFUA raises two concerns with the
redrafted template agreement for leave in advance.
[2016] FWCFB 3953
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[22] The redrafted template agreement is in the following terms:
AGREEMENT TO ANNUAL LEAVE IN ADVANCE
Name of employee: _____________________________________________
Name of employer: _____________________________________________
The employer and employee agree that the employee will take a period of paid annual
leave before the employee has accrued an entitlement to the leave:
The amount of leave to be taken in advance is: ____ hours/days
The leave will commence on: ___/___/20___
Signature of employee: ________________________________________
Date signed: ___/___/20___
Name of employer
representative: ________________________________________
Signature of employer
representative: ________________________________________
Date signed: ___/___/20___
[If the employee is under 18 years of age - include:]
I agree that:
if, on termination of the employee’s employment, the employee has not accrued an
entitlement to a period of paid annual leave already taken under this agreement, then the
employer may deduct from any money due to the employee on termination an amount
equal to the amount already paid to the employee in respect of that annual leave taken.
Name of parent/guardian: ________________________________________
Signature of parent/guardian: ________________________________________
Date signed: ___/___/20___
[23] The first issue raised by the TCFUA concerns the bolded section of the template
agreement. It is submitted that the template agreement should be varied to reflect the
variation proposed by Ai Group to the model term itself. We accept that the template
agreement should be consistent with the model term and we will vary the template agreement
accordingly.
[24] The second issue concerns the fourth and fifth paragraphs of the template agreement,
namely:
[2016] FWCFB 3953
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The amount of leave to be taken in advance is: ____ hours/days
The leave will commence on: ___/___/___
[25] The TCFUA submits that while the intention is that the reference to ‘leave’ in
paragraph 5 is to the commencement of the ‘leave in advance’, it could be interpreted as
annual leave in general, which may include both accrued leave and leave in advance. It is
submitted that this is particularly so in circumstances where employees would commonly be
familiar with completing leave forms in relation to annual leave which do not distinguish
between accrued leave and leave in advance but simply states a period of leave from a
specified date to a later date.
[26] The TCFUA propose that paragraph 5 of the template agreement be amended to read:
‘the leave in advance will commence on ___/___20__’.
[27] In our view the issue raised by the TCFUA does not give rise to any real cause for
concern, as it should be clear from the context that reference to ‘leave’ in the template
agreement means leave in advance. However, we accept that the addition of ‘in advance’
marginally adds to clarity and on that basis we will make the proposed change.
[28] We also take this opportunity to observe that s.326 of the FW Act requires the
agreement of a parent or guardian before a deduction can be made from an amount owed to an
employee who is under 18 years of age. It is for that reason that the template agreement
requires a parent or guardian also to agree to a leave in advance agreement. We have made a
similar amendment to clause 1.1(b)(ii) of the model term.
[29] Template agreements have been drafted in respect of leave in advance and the cashing
out of leave model terms to assist in reducing the regulatory burden associated with the
introduction of these model terms. Variation determinations which insert these model terms
will also vary the relevant modern award to insert schedules containing the template
agreements. We wish to emphasise that the template agreements are included by way of
example and there is no requirement to use them. A note to that effect will be inserted in the
relevant model terms.
(ii) Cashing out of leave
[30] The AMWU seeks a change to clause 1.1(d)(ii) of the May 2016 plain language model
term, which provides as follows:
‘(d) An agreement under clause 1.2 must state:
(i) the amount of leave to be cashed out and the payment to be made to the
employee for it; and
(ii) when the payment is to be made.’
[31] The AMWU submits that the language used in clause 1.1(d)(ii) is ‘broad’ and
‘imprecise’ and proposes that it be replaced by the following:
‘(ii) the date on which the payment is to be made.’ (emphasis added)
[2016] FWCFB 3953
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[32] We agree that the current wording is somewhat imprecise and will adopt the change
proposed by the AMWU.
(iii) Excessive annual leave
[33] The AMWU submits that the expression ‘when any other paid leave arrangements …
are taken into account’, in clauses 1.4(b)(i) and 1.5(b)(ii), may cause confusion as it does not
specifically refer to paid annual leave entitlements.
[34] We agree. While it is implicit from the context that the model term is referring to other
paid annual leave arrangements, it would be better if this was expressly stated. In the interests
of consistency the word ‘annual’ will also be added to clause 1.5(c)(i).
[35] The AMWU also propose amending clause 1.5(c)(iv) to include the word ‘other’
before ‘leave arrangement agreed by the employer and employee’, as follows:
‘must not … be inconsistent with any other leave arrangement agreed by the employer
and employee.’
[36] The subject of clause 1.5(c) is ‘a notice given by the employee’ requesting to take one
or more periods of paid annual leave, which is not a ‘leave arrangement agreed by the
employer and employee’. Accordingly, adding ‘other’ would detract from clarity, rather than
improving it and for that reason we do not propose to adopt the AMWU’s suggestion.
[37] These three model terms and template agreements have now been finalised.
Attachment C sets out marked up final versions of these terms and agreements.
[38] In addition to the above matters Ai Group drew attention to the fact that the draft
determinations inserting the excessive annual leave model term did not include the
transitional provision determined in the May 2016 decision.
[39] This issue is addressed at paragraphs [83]-[88] of the May 2016 decision. Relevantly,
it was determined that any variation determination inserting the model excessive leave term
into a modern award will provide that clause 1.5 – Excessive leave accruals: request by
employee for leave – commences operation 12 months after the commencement of the
balance of the excessive leave model term clauses.
[40] Ai Group proposes that the award clause itself state that subclause operates from a
nominated date, which would be 12 months after the commencement of the variation
determination. This proposal has the advantage of alerting award users to the date of
operation of the provision, but the difficulty is that the award would continue to refer to that
operative date, long after the date has passed and the reference has no practical effect.
[41] During the course of the hearing on 8 December 2015 a proposal was discussed which
adopted Ai Group’s suggestion, with the addition of a self-executing provision in the variation
determination which would remove Ai Group’s proposed provision in 12 months’ time. Ai
Group agreed with this proposal and no other party opposed it.5 Accordingly, that is the basis
[2016] FWCFB 3953
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upon which we propose to proceed and the revised draft determinations will be varied
accordingly. An example of how such a provision will operate is set out at Attachment D.
4. Provisional views
[42] In the May 2016 decision the Full Bench expressed some provisional views regarding
the insertion of certain model terms into particular modern awards. In each instance interested
parties were provided with an opportunity to notify the Commission, by 1 June 2016, if they
wished to contest the Full Bench’s provisional views in respect of any of these matters. If any
expressions of interest were received then directions would be issued for the filing of further
submissions and evidence.
[43] On 26 May 2016 those parties who had previously made submissions in relation to the
awards which were the subject of the Full Bench’s provisional views were sent a reminder of
the 1 June 2016 deadline. Further, AMMA was granted an extension, to 5.00pm on Monday
13 June 2016, within which to consider whether it would contest the provisional views
expressed in respect of certain Resource Sector Awards.
[44] No notifications were received by the various due dates. It follows, consistent with the
May 2016 decision, that we will now give effect to the provisionally expressed views. As a
consequence, the following modern awards will be varied to insert the model excessive leave
term:
Horticulture Award 2010
Hospitality Industry (General) Award 2010
Hydrocarbons Industry (Upstream) Award 2010
Medical Practitioners Award 2010
Mining Industry Award 2010
Oil Refining and Manufacturing Award 2010
Pastoral Award 2010
Registered and Licensed Clubs Award 2010
Restaurant Industry Award 2010
Salt Industry Award 2010
Wine Industry Award 2010.
[45] In relation to the Medical Practitioners Award 2010 the variation determination will
include the variation set out at paragraph [199] of the May 2016 decision.
5. Next Steps
[46] Draft determinations varying modern awards in accordance with the May 2016
decision and the changes addressed in this decision will be published on the Fair Work
Commission website by close of business on Friday 1 July 2016. If any technical issues are
identified, parties should email amod@fwc.gov.au by 4.00 pm on Monday 11 July 2016.
Determinations will be then be issued in final form.
[47] Further, as outlined in paragraphs [238] and [290] of the May 2016 decision, the
following awards have been listed for a further hearing on 1 July 2016:
mailto:amod@fwc.gov.au
[2016] FWCFB 3953
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The Security Services Industry Award 2010.
The Maritime awards:
Dredging Industry Award 2010
Marine Towage Award 2010
Maritime Offshore Oil and Gas Award 2010
Ports, Harbours and Enclosed Water Vessels Award 2010
Professional Diving Industry (Industrial) Award 2010
Seagoing Industry Award 2010.
[48] Directions have been issued in relation to these awards directing interested parties to
provide a written outline of their submissions and any evidence upon which they wish to rely
by 4.00 pm on Wednesday 29 June 2016. If an interested party no longer opposes the
insertion of the model terms into these awards, they should provide this advice in writing
prior to the hearing.
[49] Finally, Commissioner Hampton will hold a conference to enable the parties to
canvass their respective positions regarding the taking of leave issue in the awards outlined in
categories (i) and (ii) at paragraph [123] of the May 2016 decision. This conference will be
held on the afternoon of 1 July 2016.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
Price code G, PR581767
1 [2016] FWCFB 3177
2 Ibid at paragraphs [125]-[126]
3 Ibid at paragraphs [166]-[179]
4 Ibid at paragraphs [55]-[56]
5 Transcript 8 December 2015 at paragraphs 694-703
https://www.fwc.gov.au/documents/decisionssigned/html/2016FWCFB3177.htm
ATTACHMENT A—LIST OF SUBMISSIONS
Organisation Document Date
Australian Industry Group Submission - revised draft
determinations
3 June 2016
Aurizon and others Correspondence - draft
determinations
3 June 2016
Textile, Clothing and Footwear Union of
Australia
Submission - draft determinations 3 June 2016
Australian Manufacturing Workers'
Union
Submission - draft determinations 3 June 2016
CFMEU - Mining and Energy Division Submission - draft determination 3 June 2016
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/am201447-sub-cfmeu-030616.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/am201447-sub-amwu-030616.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/am201447-sub-tcfu-030616.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/am201447-sub-aurizon-030616.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/am201447-sub-aurizon-030616.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/am201447-sub-aig-020616.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/am201447-sub-aig-020616.pdf
ATTACHMENT B – COMPARATIVE DOCUMENT (extract from May 2016 decision)
The model term—15 September 2015 decision
[[2015] FWCFB 5771]
May 2016 plain language model terms
Excessive Annual Leave Accruals (extract from paragraph [172])
The model term sets out the excessive leave accrual provisions under
the following subclause and paragraph headings:
1.2 Eliminating excessive leave accruals
(a) Dealing with excessive leave accruals by agreement
(b) Employer may direct that leave be taken
(c) Employee may require that leave be granted
Excessive Annual Leave Accruals
The plain language draft sets out the excessive leave accrual provisions under the
following subclause headings:
29.6 Excessive leave accruals: general provision
29.7 Excessive leave accruals: direction by employer that leave be taken
29.8 Excessive leave accruals: request by employee for leave
Note: the plain language drafting guidelines do not allow for paragraph headings.
The model term—Excessive Annual Leave Accruals
Note: A dispute in relation to the operation of this clause may be dealt with in
accordance with the dispute resolution clause of this award [insert clause number]
This note does not appear in most recent plain language draft.
(Earlier versions included the following:
NOTE: A dispute under clause 29.6 may be dealt with in accordance with [insert
clause number]—Dispute resolution.)
1. Excessive Annual Leave Accruals
This clause contains provisions additional to the NES about taking paid annual
leave, to deal with excessive paid annual leave accruals.
29.6 Excessive leave accruals: general provision
NOTE: Clauses 29.6 to 29.8, contain provisions, additional to the National
Employment Standards, about the taking of paid annual leave as a way of dealing
with the accrual of excessive paid annual leave. See Part 2.2, Division 6 of the Fair
Work Act.
1.1 Definitions
Shiftworker means [insert definition]
Definition not replicated – definition of shiftworker moved to clause 29.2 in plain
language version.
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB5771.htm
[2016] FWCFB 3953
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The model term—15 September 2015 decision
[[2015] FWCFB 5771]
May 2016 plain language model terms
An employee has an excessive leave accrual if:
(a) the employee is not a shiftworker and has accrued more than eight
weeks’ paid annual leave; or
(b) the employee is a shiftworker and has accrued more than 10 weeks’
paid annual leave.
(a) An employee has an excessive leave accrual if the employee has
accrued more than 8 weeks’ paid annual leave (or 10 weeks’ paid
annual leave for a shiftworker, as defined by clause 29.2).
1.2 Eliminating excessive leave accruals
(a) Dealing with excessive leave accruals by agreement
Before an employer can direct that leave be taken under subclause
1.2(b) or an employee can give notice of leave to be granted under
subclause 1.2(c), the employer or employee must seek to confer and
must genuinely try to agree upon steps that will be taken to reduce or
eliminate the employee’s excessive leave accrual.
(b) If an employee has an excessive leave accrual, the employer or the
employee may seek to confer with the other and genuinely try to
reach agreement on how to reduce or eliminate the excessive leave
accrual.
See further paragraphs 29.7(a) and 29.8(a) below.
The plain language version has some additional introductory
paragraphs:
(c) Clause 29.7 sets out how an employer may direct an employee who
has an excessive leave accrual to take paid annual leave.
(d) Clause 29.8 sets out how an employee who has an excessive leave
accrual may require an employer to grant paid annual leave
requested by the employee.
(b) Employer may direct that leave be taken
(i) This subclause applies if an employee has an excessive leave
accrual
(ii) If agreement is not reached under subclause 1.2(a), the
employer may give a written direction to the employee to
take a period or periods of paid annual leave. Such a direction
must not:
29.7 Excessive leave accruals: direction by employer that leave be taken
(a) If an employer has genuinely tried to reach agreement with an
employee under clause 29.6(b) but agreement is not reached
(including because the employee refuses to confer), the employer
may direct the employee in writing to take one or more periods
of paid annual leave.
(b) However, a direction by the employer under paragraph (a):
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB5771.htm
[2016] FWCFB 3953
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The model term—15 September 2015 decision
[[2015] FWCFB 5771]
May 2016 plain language model terms
result in the employee’s remaining accrued entitlement
to paid annual leave at any time being less than six
weeks (taking into account all other paid annual leave
that has been agreed, that the employee has been directed
to take or that the employee has given notice of under
subclause 1.2(c));
(i) is of no effect if it would result at any time in the
employee’s remaining accrued entitlement to paid annual
leave being less than 6 weeks when any other paid leave
arrangements (whether made under clause 29.6, 29.7 or
29.8 or otherwise agreed by the employer and employee)
are taken into account; and
require the employee to take any period of leave of less
than one week;
(ii) must not require the employee to take any period of paid
annual leave of less than one week; and
require the employee to take any period of leave
commencing less than eight weeks after the day the
direction is given to the employee;
require the employee to take any period of leave
commencing more than 12 months after the day the
direction is given to the employee; or
(iii) must not require the employee to take a period of paid
annual leave beginning less than 8 weeks, or more than 12
months, after the direction is given; and
be inconsistent with any leave arrangement agreed
between the employer and employee.
(iv) must not be inconsistent with any leave arrangement
agreed by the employer and employee.
(iii) An employee to whom a direction has been given under this
subclause may make a request to take paid annual leave as if
the direction had not been given
Paragraph 29.7(c) is shifted to the next page for comparative purposes.
(d) An employee to whom a direction has been given under
paragraph (a) may request to take a period of paid annual leave
as if the direction had not been given.
Note: The NES state that the employer must not
unreasonably refuse to agree to a request by the employee to
take paid annual leave.
Notes for clause 29.7 appear below 29.7(d):
NOTE 1: Paid annual leave arising from a request mentioned in paragraph (d) may
result in the direction ceasing to have effect. See clause 29.7(b)(i).
NOTE 2: Under section 88(2) of the Fair Work Act, the employer must not
unreasonably refuse to agree to a request by the employee to take paid annual
leave.
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB5771.htm
[2016] FWCFB 3953
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The model term—15 September 2015 decision
[[2015] FWCFB 5771]
May 2016 plain language model terms
(iv) If leave is agreed after a direction is issued and the direction
would then result in the employee’s remaining accrued
entitlement to paid annual leave at any time being less than
six weeks, the direction will be deemed to have been
withdrawn.
This is already addressed under Clause 29.7(b)(i) above, which is replicated here
for comparative purposes:
(v) is of no effect if it would result at any time in the
employee’s remaining accrued entitlement to paid annual
leave being less than 6 weeks when any other paid leave
arrangements (whether made under clause 29.6, 29.7 or
29.8 or otherwise agreed by the employer and employee)
are taken into account;
(v) The employee must take paid annual leave in accordance
with a direction complying with this subclause.
(c) The employee must take paid annual leave in accordance with a
direction under paragraph (a) that is in effect.
(c) Employee may require that leave be granted
(i) This subclause applies if an employee has had an excessive
leave accrual for more than six months and the employer has
not given a direction under subclause 1.2(b) that will
eliminate the employee’s excessive leave accrual.
(ii) If agreement is not reached under subclause 1.2(a), the
employee may give a written notice to the employer that the
employee wishes to take a period or periods of paid annual
leave. Such a notice must not:
29.8 Excessive leave accruals: request by employee for leave
(a) If an employee has genuinely tried to reach agreement with an
employer under clause 29.6(b) but agreement is not reached
(including because the employer refuses to confer), the employee
may give a written notice to the employer requesting to take one
or more periods of paid annual leave.
(b) However, an employee may only give a notice to the employer
under paragraph (a) if:
(i) the employee has had an excessive leave accrual for more
than 6 months at the time of giving the notice; and
(ii) the employee has not been given a direction under clause
29.7(a) that, when any other paid leave arrangements
(whether made under clause 29.6, 29.7 or 29.8 or
otherwise agreed by the employer and employee) are
taken into account, would eliminate the employee’s
excessive leave accrual.
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB5771.htm
[2016] FWCFB 3953
15
The model term—15 September 2015 decision
[[2015] FWCFB 5771]
May 2016 plain language model terms
(c) A notice given by an employee under paragraph (a) must not:
result in the employee’s remaining accrued entitlement
to paid annual leave at any time being less than six
weeks (taking into account all other paid annual leave
that has been agreed, that the employee has been directed
to take or that the employee has given notice of under
this subclause);
(i) if granted, result in the employee’s remaining accrued
entitlement to paid annual leave being at any time less
than 6 weeks when any other paid leave arrangements
(whether made under clause 29.6, 29.7 or 29.8 or
otherwise agreed by the employer and employee) are
taken into account; or
provide for the employee to take any period of leave of
less than one week;
(ii) provide for the employee to take any period of paid
annual leave of less than one week; or
provide for the employee to take any period of leave
commencing less than eight weeks after the day the
notice is given to the employer;
provide for the employee to take any period of leave
commencing more than 12 months after the day the
notice is given to the employer; or
(iii) provide for the employee to take a period of paid annual
leave beginning less than 8 weeks, or more than 12
months, after the notice is given; or
be inconsistent with any leave arrangement agreed
between the employer and employee.
(iv) be inconsistent with any leave arrangement agreed by the
employer and employee.
(iii) The maximum amount of leave that an employee can give
notice of under this subclause is: four weeks’ leave in any 12
month period if the employee is not a shiftworker, and five
weeks’ leave in any 12 month period if the employee is a
shiftworker.
(d) An employee is not entitled to request by a notice under
paragraph (a) more than 4 weeks’ paid annual leave (or 5 weeks’
paid annual leave for a shiftworker, as defined by clause 29.2) in
any period of 12 months.
(iv) The employer must grant the employee paid annual leave in
accordance with a notice complying with this subclause.
(e) The employer must grant paid annual leave requested by a notice
under paragraph (a).
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB5771.htm
[2016] FWCFB 3953
16
The model term—15 September 2015 decision
[[2015] FWCFB 5771]
May 2016 plain language model terms
Annual leave in advance
Extract from paragraph [23]
Annual leave in advance
1.
1.1 An employer and employee may agree to the employee taking a period of
paid annual leave in advance of the employee accruing an entitlement to
such leave provided that the agreement meets the following requirements:
29.4 Annual leave in advance
(a) An employee and employer may agree in writing to the
employee taking a period of paid annual leave before the
employee has accrued an entitlement to the leave.
(b) An agreement must:
(a) it is in writing and signed by the employee and employer; (ii) be signed by the employee and employer.
(b) it states the amount of leave to be taken in advance and the date
on which the leave is to commence; and
(i) state the amount of leave to be taken and when it is to be
taken; and
(c) it is retained as an employee record. (c) The employer must keep a copy of any agreement under clause
29.4 as an employee record.
1.2 This subclause applies if an employee takes a period of paid annual leave
in advance pursuant to an agreement made in accordance with clause 1.1.
If the employee’s employment is terminated before they have accrued all
of the entitlement to paid annual leave which they have taken then the
employer may deduct an amount equal to the difference between the
employee’s accrued annual leave entitlement and the leave taken in
advance, from any monies due to the employee on termination.
(d) If, on the termination of the employee’s employment, the
employee has not accrued an entitlement to a period of paid
annual leave already taken in accordance with an agreement
under clause 29.4, the employer may deduct from any money due
to the employee on the termination an amount equal to the
amount already paid to the employee in respect of that annual
leave taken.
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB5771.htm
[2016] FWCFB 3953
17
The model term—15 September 2015 decision
[[2015] FWCFB 5771]
May 2016 plain language model terms
Cashing Out of Annual Leave
Extract from paragraph [16]
Cashing out of annual leave
1.
1.1 Paid annual leave must not be cashed out except in accordance with this
clause.
29.9 Cashing out of annual leave
(a) Paid annual leave must not be cashed out except in accordance
with an agreement under clause 29.9.
1.2 An employer and an employee may agree to the employee cashing out a
particular amount of the employee’s accrued paid annual leave provided
that the following requirements are met:
(a) each cashing out of a particular amount of accrued paid annual
leave must be by a separate agreement between the employer
and the employee which must:
(b) Each cashing out of a particular amount of paid annual leave
must be the subject of a separate agreement under clause 29.9.
(c) An employer and an employee may agree in writing to the
cashing out of a particular amount of accrued paid annual leave
by the employee.
(d) An agreement under clause 29.9 must state:
(i) be in writing and retained as an employee record; Paragraph (i) is replicated here for comparative purposes:
(i) The employer must keep a copy of any agreement under clause
29.9 as an employee record.
(ii) state the amount of accrued leave to be cashed out and
the payment to be made to the employee;
(i) the amount of leave to be cashed out and the payment to
be made to the employee for it; and
(iii) state the date on which the payment is to be made, and (ii) when the payment is to be made.
(iv) be signed by the employer and employee and, if the
employee is under 18 years of age, the employee’s
parent or guardian;
(e) An agreement under clause 29.9 must be signed by the employer
and employee and, if the employee is under 18 years of age, by
the employee’s parent or guardian.
(b) the employee must be paid at least the full amount that would
have been payable to the employee had the employee taken the
(f) The payment must not be less than the amount that would have
been payable had the employee taken the leave at the time the
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB5771.htm
[2016] FWCFB 3953
18
The model term—15 September 2015 decision
[[2015] FWCFB 5771]
May 2016 plain language model terms
leave at the time that it is cashed out; payment is made.
(c) paid annual leave must not be cashed out if the cashing out
would result in the employee’s remaining accrued entitlement to
paid annual leave being less than four weeks; and
(g) An agreement must not result in the employee’s remaining
accrued entitlement to paid annual leave being less than 4 weeks.
(d) employees may not cash out more than two weeks’ accrued
annual leave in any 12 month period.
(h) The maximum amount of accrued paid annual leave that may be
cashed out in any period of 12 months is 2 weeks.
Note 1: Under s.344 of the Fair Work Act 2009, an employer must not exert undue
influence or undue pressure on an employee to make an agreement to cash out paid
annual leave under this award clause.
NOTE 1: Under section 344 of the Fair Work Act, an employer must not exert
undue influence or undue pressure on an employee to make, or not make, an
agreement under clause 29.9.
Note 2: Under s.345 of the Fair Work Act 2009, a person must not knowingly or
recklessly make a false or misleading representation about an employee’s
workplace rights under this award clause.
NOTE 2: Under section 345(1) of the Fair Work Act, a person must not knowingly
or recklessly make a false or misleading representation about the workplace rights
of another person under clause 29.9.
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB5771.htm
ATTACHMENT C— MARKED UP FINAL VERSION OF THE ANNUAL
LEAVE MODEL TERMS
1.1 Annual leave in advance
(a) An employer and employee may agree in writing to the employee taking a
period of paid annual leave before the employee has accrued an entitlement to
the leave.
(b) An agreement must:
(i) state the amount of leave to be taken in advance and the date on which
the leave is to commence when it is to be taken; and
(ii) be signed by the employer and employee and, if the employee is under 18
years of age, by the employee’s parent or guardian.
Note: An example of the type of agreement required by clause 1.1 is set out at
Schedule [ ]. There is no requirement to use the form of agreement set out at
Schedule [ ].
(c) The employer must keep a copy of any agreement under clause 1.1 as an
employee record.
(d) If, on the termination of the employee’s employment, the employee has not
accrued an entitlement to all of a period of paid annual leave already taken in
accordance with an agreement under clause 1.1, the employer may deduct from
any money due to the employee on termination an amount equal to the amount
already that was paid to the employee in respect of any part of the period of
that annual leave taken in advance to which an entitlement has not been
accrued.
1.2 Cashing out of annual leave
(a) Paid annual leave must not be cashed out except in accordance with an
agreement under clause 1.2.
(b) Each cashing out of a particular amount of paid annual leave must be the
subject of a separate agreement under clause 1.2.
(c) An employer and an employee may agree in writing to the cashing out of a
particular amount of accrued paid annual leave by the employee.
(d) An agreement under clause 1.2 must state:
(i) the amount of leave to be cashed out and the payment to be made to the
employee for it; and
(ii) when the date on which the payment is to be made.
[2016] FWCFB 3953
20
(e) An agreement under clause 1.2 must be signed by the employer and employee
and, if the employee is under 18 years of age, by the employee’s parent or
guardian.
(f) The payment must not be less than the amount that would have been payable
had the employee taken the leave at the time the payment is made.
(g) An agreement must not result in the employee’s remaining accrued entitlement
to paid annual leave being less than 4 weeks.
(h) The maximum amount of accrued paid annual leave that may be cashed out in
any period of 12 months is 2 weeks.
(i) The employer must keep a copy of any agreement under clause 1.2 as an
employee record.
Note 1: Under section 344 of the Act, an employer must not exert undue influence or
undue pressure on an employee to make, or not make, an agreement under clause 1.2.
Note 2: Under section 345(1) of the Act, a person must not knowingly or recklessly
make a false or misleading representation about the workplace rights of another
person under clause 1.2.
Note 3: An example of the type of agreement required by clause 1.2 is set out at
Schedule [ ]. There is no requirement to use the form of agreement set out at
Schedule [ ].
1.3 Excessive leave accruals: general provision
NOTE: Clauses 1.3 to 1.5 contain provisions, additional to the National Employment
Standards, about the taking of paid annual leave as a way of dealing with the
accrual of excessive paid annual leave. See Part 2.2, Division 6 of the Fair
Work Act.
(a) An employee has an excessive leave accrual if the employee has accrued more
than 8 weeks’ paid annual leave (or 10 weeks’ paid annual leave for a
shiftworker, as defined by clause 1.x).
(b) If an employee has an excessive leave accrual, the employer or the employee
may seek to confer with the other and genuinely try to reach agreement on how
to reduce or eliminate the excessive leave accrual.
(c) Clause 1.4 sets out how an employer may direct an employee who has an
excessive leave accrual to take paid annual leave.
(d) Clause 1.5 sets out how an employee who has an excessive leave accrual may
require an employer to grant paid annual leave requested by the employee.
[2016] FWCFB 3953
21
1.4 Excessive leave accruals: direction by employer that leave be taken
(a) If an employer has genuinely tried to reach agreement with an employee under
clause 1.3(b) but agreement is not reached (including because the employee
refuses to confer), the employer may direct the employee in writing to take one
or more periods of paid annual leave.
(b) However, a direction by the employer under paragraph (a):
(i) is of no effect if it would result at any time in the employee’s remaining
accrued entitlement to paid annual leave being less than 6 weeks when
any other paid annual leave arrangements (whether made under clause
1.3, 1.4 or 1.5 or otherwise agreed by the employer and employee) are
taken into account; and
(ii) must not require the employee to take any period of paid annual leave of
less than one week; and
(iii) must not require the employee to take a period of paid annual leave
beginning less than 8 weeks, or more than 12 months, after the direction
is given; and
(iv) must not be inconsistent with any leave arrangement agreed by the
employer and employee.
(c) The employee must take paid annual leave in accordance with a direction under
paragraph (a) that is in effect.
(d) An employee to whom a direction has been given under paragraph (a) may
request to take a period of paid annual leave as if the direction had not been
given.
NOTE 1: Paid annual leave arising from a request mentioned in paragraph (d) may result in
the direction ceasing to have effect. See clause 1.4(b)(i).
NOTE 2: Under section 88(2) of the Fair Work Act, the employer must not unreasonably
refuse to agree to a request by the employee to take paid annual leave.
1.5 Excessive leave accruals: request by employee for leave
(a) If an employee has genuinely tried to reach agreement with an employer under
clause 1.3(b) but agreement is not reached (including because the employer
refuses to confer), the employee may give a written notice to the employer
requesting to take one or more periods of paid annual leave.
(b) However, an employee may only give a notice to the employer under
paragraph (a) if:
(i) the employee has had an excessive leave accrual for more than 6 months
at the time of giving the notice; and
(ii) the employee has not been given a direction under clause 1.4(a) that,
when any other paid annual leave arrangements (whether made under
clause 1.3, 1.4 or 1.5 or otherwise agreed by the employer and employee)
[2016] FWCFB 3953
22
are taken into account, would eliminate the employee’s excessive leave
accrual.
(c) A notice given by an employee under paragraph (a) must not:
(i) if granted, result in the employee’s remaining accrued entitlement to paid
annual leave being at any time less than 6 weeks when any other paid
annual leave arrangements (whether made under clause 1.3, 1.4 or 1.5 or
otherwise agreed by the employer and employee) are taken into account;
or
(ii) provide for the employee to take any period of paid annual leave of less
than one week; or
(iii) provide for the employee to take a period of paid annual leave beginning
less than 8 weeks, or more than 12 months, after the notice is given; or
(iv) be inconsistent with any leave arrangement agreed by the employer and
employee.
(d) An employee is not entitled to request by a notice under paragraph (a) more
than 4 weeks’ paid annual leave (or 5 weeks’ paid annual leave for a
shiftworker, as defined by clause 1.x) in any period of 12 months.
(e) The employer must grant paid annual leave requested by a notice under
paragraph (a).
[2016] FWCFB 3953
23
AGREEMENT TO CASH OUT ANNUAL LEAVE
Name of employee: _____________________________________________
Name of employer: _____________________________________________
The employer and employee agree to the employee cashing out a particular amount of
the employee’s accrued paid annual leave:
The amount of leave to be cashed out is: ____ hours/days
The payment to be made to the employee for the leave is: $_______ subject to deduction of
income tax/after deduction of income tax (strike out where not applicable)
The payment will be made to the employee on: ___/___/20___
Signature of employee: ________________________________________
Date signed: ___/___/20___
Name of employer
representative: ________________________________________
Signature of employer
representative: ________________________________________
Date signed: ___/___/20___
Include if the employee is under 18 years of age:
Name of parent/guardian: ________________________________________
Signature of parent/guardian: ________________________________________
Date signed: ___/___/20___
[2016] FWCFB 3953
24
AGREEMENT TO ANNUAL LEAVE IN ADVANCE
Name of employee: _____________________________________________
Name of employer: _____________________________________________
The employer and employee agree that the employee will take a period of paid annual
leave before the employee has accrued an entitlement to the leave:
The amount of leave to be taken in advance is: ____ hours/days
The leave in advance will commence on: ___/___/20___
Signature of employee: ________________________________________
Date signed: ___/___/20___
Name of employer
representative: ________________________________________
Signature of employer
representative: ________________________________________
Date signed: ___/___/20___
[If the employee is under 18 years of age - include:]
I agree that:
if, on termination of the employee’s employment, the employee has not accrued an
entitlement to all of a period of paid annual leave already taken under this
agreement, then the employer may deduct from any money due to the employee on
termination an amount equal to the amount already that was paid to the employee
in respect of any part of the period of that annual leave taken in advance to which
an entitlement has not been accrued.
Name of parent/guardian: ________________________________________
Signature of parent/guardian: ________________________________________
Date signed: ___/___/20___
[2016] FWCFB 3953
25
ATTACHMENT D—
DRAFT DETERMINATION
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards—Annual leave
(AM2014/47)
PHARMACY INDUSTRY AWARD 2010
[MA000012]
Pharmacy operations
JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT KOVACIC
COMMISSIONER HAMPTON MELBOURNE, XX JULY 2016
4 yearly review of modern awards - annual leave common issue.
A. Further to the Full Bench decision issued by the Fair Work Commission on 24 June
20161 the above award is varied as follows:
1. By deleting clause 29.4—Paid leave in advance of accrued entitlement and inserting
the following:
29.4 Annual leave in advance
(a) An employer and employee may agree in writing to the employee taking a
period of paid annual leave before the employee has accrued an entitlement to
the leave.
(b) An agreement must:
(i) state the amount of leave to be taken in advance and when it is to be
taken; and
(ii) be signed by the employer and employee and, if the employee is under 18
years of age, by the employee’s parent or guardian.
1 [2016] FWCFB 3953; see also [2015] FWCFB 3406, [2015] FWCFB 5771 and [2016] FWCFB 3177
https://www.fwc.gov.au/documents/decisionssigned/html/2016FWCFB3177.htm
https://www.fwc.gov.au/decisionssigned/html/2015FWCFB5771.htm
http://www.fwc.gov.au/decisionssigned/html/2015fwcfb3406.htm
[2016] FWCFB 3953
26
Note: An example of the type of agreement required by clause 29.4 is set out at
Schedule F. There is no requirement to use the form of agreement set out at
Schedule F.
(c) The employer must keep a copy of any agreement under clause 29.4 as an
employee record.
(d) If, on the termination of the employee’s employment, the employee has not
accrued an entitlement to a period of paid annual leave already taken in
accordance with an agreement under clause 29.4, the employer may deduct
from any money due to the employee on termination an amount equal to the
amount already paid to the employee in respect of that annual leave taken.
2. By inserting clause 29.5 as follows:
29.5 Cashing out of annual leave
(a) Paid annual leave must not be cashed out except in accordance with an
agreement under clause 29.5.
(b) Each cashing out of a particular amount of paid annual leave must be the
subject of a separate agreement under clause 29.5.
(c) An employer and an employee may agree in writing to the cashing out of a
particular amount of accrued paid annual leave by the employee.
(d) An agreement under clause 29.5 must state:
(i) the amount of leave to be cashed out and the payment to be made to the
employee for it; and
(ii) when the payment is to be made.
(e) An agreement under clause 29.5 must be signed by the employer and employee
and, if the employee is under 18 years of age, by the employee’s parent or
guardian.
(f) The payment must not be less than the amount that would have been payable
had the employee taken the leave at the time the payment is made.
(g) An agreement must not result in the employee’s remaining accrued entitlement
to paid annual leave being less than 4 weeks.
(h) The maximum amount of accrued paid annual leave that may be cashed out in
any period of 12 months is 2 weeks.
(i) The employer must keep a copy of any agreement under clause 29.5 as an
employee record.
[2016] FWCFB 3953
27
Note 1: Under section 344 of the Fair Work Act, an employer must not exert undue influence
or undue pressure on an employee to make, or not make, an agreement under clause 29.5.
Note 2: Under section 345(1) of the Fair Work Act, a person must not knowingly or
recklessly make a false or misleading representation about the workplace rights of another
person under clause 29.5.
Note 3: An example of the type of agreement required by clause 29.5 is set out at Schedule G.
There is no requirement to use the form of agreement set out at Schedule G.
3. By inserting clause 29.6:
29.6 Excessive leave accruals: general provision
NOTE: Clauses 29.6 to 29.8 contain provisions, additional to the National
Employment Standards, about the taking of paid annual leave as a way of dealing
with the accrual of excessive paid annual leave. See Part 2.2, Division 6 of the Fair
Work Act.
(a) An employee has an excessive leave accrual if the employee has accrued more
than 8 weeks’ paid annual leave (or 10 weeks’ paid annual leave for a
shiftworker, as defined by clause 29.2).
(b) If an employee has an excessive leave accrual, the employer or the employee
may seek to confer with the other and genuinely try to reach agreement on how
to reduce or eliminate the excessive leave accrual.
(c) Clause 29.7 sets out how an employer may direct an employee who has an
excessive leave accrual to take paid annual leave.
(d) Clause 29.8 sets out how an employee who has an excessive leave accrual may
require an employer to grant paid annual leave requested by the employee.
4. By inserting a new clause 29.7 as follows:
29.7 Excessive leave accruals: direction by employer that leave be taken
(a) If an employer has genuinely tried to reach agreement with an employee under
clause 29.6(b) but agreement is not reached (including because the employee
refuses to confer), the employer may direct the employee in writing to take one
or more periods of paid annual leave.
(b) However, a direction by the employer under paragraph (a):
(i) is of no effect if it would result at any time in the employee’s remaining
accrued entitlement to paid annual leave being less than 6 weeks when
any other paid leave arrangements (whether made under clause 29.6, 29.7
or 29.8 or otherwise agreed by the employer and employee) are taken
into account; and
[2016] FWCFB 3953
28
(ii) must not require the employee to take any period of paid annual leave of
less than one week; and
(iii) must not require the employee to take a period of paid annual leave
beginning less than 8 weeks, or more than 12 months, after the direction
is given; and
(iv) must not be inconsistent with any leave arrangement agreed by the
employer and employee.
(c) The employee must take paid annual leave in accordance with a direction under
paragraph (a) that is in effect.
(d) An employee to whom a direction has been given under paragraph (a) may
request to take a period of paid annual leave as if the direction had not been
given.
NOTE 1: Paid annual leave arising from a request mentioned in paragraph (d) may result in
the direction ceasing to have effect. See clause 29.7(b)(i).
NOTE 2: Under section 88(2) of the Fair Work Act, the employer must not unreasonably
refuse to agree to a request by the employee to take paid annual leave.
5. By inserting a new clause 29.8 as follows:
29.8 Excessive leave accruals: request by employee for leave
(a) Clause 29.8 comes into operation from XX July 2017.
(b) If an employee has genuinely tried to reach agreement with an employer under
clause 29.6(b) but agreement is not reached (including because the employer
refuses to confer), the employee may give a written notice to the employer
requesting to take one or more periods of paid annual leave.
(c) However, an employee may only give a notice to the employer under
paragraph (b) if:
(i) the employee has had an excessive leave accrual for more than 6 months
at the time of giving the notice; and
(ii) the employee has not been given a direction under clause 29.7(a) that,
when any other paid annual leave arrangements (whether made under
clause 29.6, 29.7 or 29.8 or otherwise agreed by the employer and
employee) are taken into account, would eliminate the employee’s
excessive leave accrual.
(c) A notice given by an employee under paragraph (b) must not:
[2016] FWCFB 3953
29
(i) if granted, result in the employee’s remaining accrued entitlement to paid
annual leave being at any time less than 6 weeks when any other paid
annual leave arrangements (whether made under clause 29.6, 29.7 or 29.8
or otherwise agreed by the employer and employee) are taken into
account; or
(ii) provide for the employee to take any period of paid annual leave of less
than one week; or
(iii) provide for the employee to take a period of paid annual leave beginning
less than 8 weeks, or more than 12 months, after the notice is given; or
(iv) be inconsistent with any leave arrangement agreed by the employer and
employee.
(d) An employee is not entitled to request by a notice under paragraph (b) more
than 4 weeks’ paid annual leave (or 5 weeks’ paid annual leave for a
shiftworker, as defined by clause 29.2) in any period of 12 months.
(e) The employer must grant paid annual leave requested by a notice under
paragraph (b).
6. By inserting Schedule F—Agreement to Annual Leave in Advance as follows:
AGREEMENT TO ANNUAL LEAVE IN ADVANCE
Name of employee: _____________________________________________
Name of employer: _____________________________________________
The employer and employee agree that the employee will take a period of paid annual
leave before the employee has accrued an entitlement to the leave:
The amount of leave to be taken in advance is: ____ hours/days
The leave in advance will commence on: ___/___/20___
Signature of employee: ________________________________________
Date signed: ___/___/20___
Name of employer
representative: ________________________________________
Signature of employer
representative: ________________________________________
[2016] FWCFB 3953
30
Date signed: ___/___/20___
[If the employee is under 18 years of age - include:]
I agree that:
if, on termination of the employee’s employment, the employee has not accrued an
entitlement to all of a period of paid annual leave already taken under this
agreement, then the employer may deduct from any money due to the employee on
termination an amount equal to the amount that was paid to the employee in
respect of any part of the period of that annual leave taken in advance to which an
entitlement has not been accrued.
Name of parent/guardian: ________________________________________
Signature of parent/guardian: ________________________________________
Date signed: ___/___/20___
7. By inserting Schedule F—Agreement to Cash Out Annual Leave as follows:
AGREEMENT TO CASH OUT ANNUAL LEAVE
Name of employee: _____________________________________________
Name of employer: _____________________________________________
The employer and employee agree to the employee cashing out a particular amount of
the employee’s accrued paid annual leave:
The amount of leave to be cashed out is: ____ hours/days
The payment to be made to the employee for the leave is: $_______ subject to deduction of
income tax/after deduction of income tax (strike out where not applicable)
The payment will be made to the employee on: ___/___/20___
Signature of employee: ________________________________________
Date signed: ___/___/20___
[2016] FWCFB 3953
31
Name of employer
representative: ________________________________________
Signature of employer
representative: ________________________________________
Date signed: ___/___/20___
Include if the employee is under 18 years of age:
Name of parent/guardian: ________________________________________
Signature of parent/guardian: ________________________________________
Date signed: ___/___/20___
8. By updating the Table of contents and cross-references accordingly.
9. By deleting clause 29.8 and inserting the following:
29.8 Excessive leave accruals: request by employee for leave
(a) If an employee has genuinely tried to reach agreement with an employer under
clause 29.6(b) but agreement is not reached (including because the employer
refuses to confer), the employee may give a written notice to the employer
requesting to take one or more periods of paid annual leave.
(b) However, an employee may only give a notice to the employer under
paragraph (a) if:
(i) the employee has had an excessive leave accrual for more than 6 months
at the time of giving the notice; and
(ii) the employee has not been given a direction under clause 29.7(a) that,
when any other paid annual leave arrangements (whether made under
clause 29.6, 29.7 or 29.8 or otherwise agreed by the employer and
employee) are taken into account, would eliminate the employee’s
excessive leave accrual.
(c) A notice given by an employee under paragraph (a) must not:
(i) if granted, result in the employee’s remaining accrued entitlement to paid
annual leave being at any time less than 6 weeks when any other paid
annual leave arrangements (whether made under clause 29.6, 29.7 or 29.8
[2016] FWCFB 3953
32
or otherwise agreed by the employer and employee) are taken into
account; or
(ii) provide for the employee to take any period of paid annual leave of less
than one week; or
(iii) provide for the employee to take a period of paid annual leave beginning
less than 8 weeks, or more than 12 months, after the notice is given; or
(iv) be inconsistent with any leave arrangement agreed by the employer and
employee.
(d) An employee is not entitled to request by a notice under paragraph (a) more
than 4 weeks’ paid annual leave (or 5 weeks’ paid annual leave for a
shiftworker, as defined by clause 29.2) in any period of 12 months.
(e) The employer must grant paid annual leave requested by a notice under
paragraph (a).
B. Items 1 to 8 of this determination come into operation from xx July 2016. In
accordance with s.165(3) of the Fair Work Act 2009 these items do not take effect until the
start of the first full pay period that starts on or after xx July 2016.
C. Item 9 of this determination comes into operation from xx July 2017. In accordance
with s.165(3) of the Fair Work Act 2009 this item does not take effect until the start of the
first full pay period that starts on or after xx July 2017.
PRESIDENT
