1
Fair Work Act 2009
s.739 - Application to deal with a dispute
Ms Sandra Barresi
v
Harris Scarfe Pty Ltd T/A Harris Scarfe
(C2022/7473)
COMMISSIONER LEE MELBOURNE, 16 DECEMBER 2022
Alleged dispute about any matters arising under the enterprise agreement and the
NES;[s186(6)]
[1] This dispute relates to the refusal of an annual leave request made by Ms Sandra Barresi
(the Applicant) on 18 August 2022 pursuant to clause 7.1 of the Harris Scarfe Enterprise
Agreement 2017 (the Agreement).
[2] The Applicant requested annual leave for the period from Thursday, 22 December 2022
to Friday, 30 December 2022 (inclusive) to enable the Applicant to travel to the Gold Coast to
attend a family holiday to celebrate the Applicant and her daughter’s birthdays. Both the
Applicant and her daughter celebrate birthdays that fall within the period of leave requested.
The Applicant is intending to carry out a belated 40th birthday celebration that was not able to
be held in 2020 when the Applicant turned 40, or last year in 2021, due to Coronavirus (Covid-
19) related travel restrictions that were in place at the time.
[3] On 5 September 2022, Harris Scarfe Pty Ltd T/A Harris Scarfe (the Respondent)
emailed the Applicant refusing to approve the leave request citing that her request could not be
honoured because otherwise the company would need to honour all similar requests through
their ‘busiest trading period’.
[4] The matter was the subject of a conciliation conference before me on 28 November
2022.
[5] The dispute was unable to be resolved.
[6] Directions were set by consent for submissions and witness statements to be filed within
a short timeframe to enable the matter to be dealt with expeditiously.
[7] A hearing was held by Microsoft Teams on 9 December 2022. At the conclusion of the
hearing, I advised the parties that I have determined that the refusal of the of the leave requested
was not unreasonable. I indicated that I would shortly provide written reasons for my decision.
The reasons are as follow.
Jurisdiction
[2022] FWC 3293
DECISION
AUSTRALIA FairWork Commission
[2022] FWC 3293
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[8] It is common ground that the Fair Work Commission (the Commission) has the
jurisdiction to determine this matter pursuant to the Dispute Settlement Procedure at clause 2.2
of the Agreement.
[9] The question to be determined as agreed is:
‘Whether the Respondent unreasonably refused the Applicant’s annual leave request for
the leave period between 22 December 2022 to 30 December 2022 (inclusive)?’
Evidence
[10] Much of the relevant evidence is largely uncontested.
[11] The Applicant wrote to the Respondent on 18 August 2022 requesting leave for the
Christmas and New Year period. Key issues that the Applicant raised in that letter were:
that it was the only time her husband could take off work,
that her and her daughter’s birthdays fall within the period,
that she had planned to go away for her birthday in 2020 but was unable to due to the
border closures,
that she was writing at the time in order to provide substantial notice, taking into
account the blackout period, and
that the holiday was already partially booked.
[12] On 5 September 2022, the Area Manager rejected the request.
[13] A month later, on 5 October 2022, the Applicant disputed the refusal via her Union
representative, the Shop, Distributive and Allied Employees Association (SDA).
[14] The next day, Ms Emily Fischer, People & Culture Manager at Harris Scarfe Pty Ltd,
contacted the Applicant’s Union representative and advised that blackout periods were a
standard practice and requests were denied unless there were extenuating circumstances. Ms
Fischer did undertake to contact the store manager to see what could be done but could not
guarantee anything.
[15] On 10 October 2022, Ms Fischer spoke over the phone with the Applicant’s
representative and advised that the store was unable to operationally accommodate the
Applicant’s annual leave request.
[16] On the same day, Ms Fischer sent an email to the Applicant and her representative. The
email indicated that Ms Fischer had further discussed the matter with the Store Manager to
review the capability to roster adequately experienced team members during the Christmas
period. The Store Manager advised that the draft roster required store members to work nearly
double their normal hours in some cases and existing casuals were rostered for six days straight.
While there may be more casuals hired, an appropriate number of experienced team members
are required. There was a possibility that the Applicant could have leave approved post 5
January 2022.
[2022] FWC 3293
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[17] . The Union then, on 11 November 2022, made an application to the Fair Work
Commission pursuant to s.739 of the Fair Work Act 2009, for the Commission to deal with a
dispute.
[18] The Union submits the “refusal” should be assessed on 5 September 2022 as that was
when it was refused. This would have the effect of excluding the relevant events that occurred
after that date and before the matter was before me. All of the circumstances and events,
including those that occurred after 5 September 2022 are relevant. I will determine the matter
on the facts before me at the time of the hearing. To do so is consistent with the agreed question
to be determined.
[19] The SDA submitted that various factors weighed in favour of the Applicant:
The fact the Applicant gave reasonable notice.
The short period the applicant sought to take leave which was effectively 4 shifts.
That the employer did not genuinely consider the request.
The Respondent is a large business which should have the capacity to cover the shifts.
That the leave would not cause a detriment to the business.
[20] The employer submissions included various factual assertions which were not disputed
by the Applicant, However, the SDA advised that if the Applicant was required to work the
Christmas and New Year period, she would not agree to work additional hours.
[21] In summary, the employer’s submissions were:
The Employer has 8 Adelaide stores, 2 of those within 20 minutes of the Applicant’s
stores. Those stores do not have additional capacity that can be shared with the
Applicant’s store (Gepps Cross).
Since October 2022, 56 casuals have been hired to cover the peak trade at the Gepps
Cross store.
Experienced team members are required as the “Christmas casuals” largely work on
registers.
Normal base roster at Gepps Cross is 243 hours per week. For the Christmas and New
Year period, the planned roster is 400 hours per week.
The Applicant is a 7 year experienced team member.
The roster has to factor in unplanned absences including absences associated with
Coronavirus (Covid 19).
A permanent team member will be absent on personal leave at that time for urgent
surgery.
While agreeing the Applicant gave reasonable notice, the blackout period was known
to the Applicant.
They have genuinely considered the application, with Ms Fischer on or around 10
October 2022 asking the Store Manager to review the request.
Casuals may make themselves unavailable at the Christmas period and this has to be
accounted for. By way of example, the Applicant’s daughter who also works at Gipps
Cross has made herself unavailable during the Christmas/New Year period.
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The Applicant planned and booked her leave prior to it being approved by the
employer resulting in the Applicant not being flexible about when leave could be
taken.
[22] On the basis of the above, the Respondent does not believe the refusal of the Applicant’s
annual leave for the period between 22 December 2022 and 30 December 2022 was
unreasonable. At the time of the Application, the employer didn’t have enough employees to
cover the 400 hours per week planned for the period in question. Assuming that the store would
be able to employ additional casual employees for the period, they still require all the existing
permanent team to work at least their base hours but preferably more to ensure adequate
experience on the sales floor. This period is well documented in company policy as a time when
leave would only be approved by exception. This specific request by the applicant, after further
consideration, was deemed an unsuitable time for her to take leave based on business
requirements during peak trade.
The law to be applied
[23] The relevant provisions to be construed are s.88 of the Fair Work Act 2009 (Cth) and
clause 7.1(b) of the Agreement.
[24] Section 88 of the Act provides as follows:
“88 Taking paid annual leave
(1) Paid annual leave may be taken for a period agreed between an employee and his or
her employer.
(2) The employer must not unreasonably refuse to agree to a request by the employee
to take paid annual leave.”
[25] Clause 7.1(b) of the Agreement states:
“7.1 Annual Leave
…
(b) The taking of annual leave is subject to the operational requirements of Harris Scarfe
and the approval for the leave having been authorised in writing by Harris Scarfe.
Harris Scarfe will not unreasonably refuse any annual leave requests.”
[26] Whether a refusal is unreasonable should be assessed in all the circumstances and
objectively. In Adriana Stevens v Horsley Park Supermarket Pty Ltd T/A Carlo’s IGA Horsley
Park [2017] FWC 4626 (Stevens), Cambridge C noted:
“[47] It is clear from s. 88 (2) of the Act that an employer must not unreasonably refuse
to agree to a request by an employee to take paid annual leave. Whether there has been
an unreasonable refusal to agree to a request to take paid annual leave is a matter that
involves careful assessment of all of the particular circumstances of each case. Matters
such as the nature and size of the employer’s business operation, and the period of notice
[2022] FWC 3293
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provided for any requested leave, are matters of significance in any assessment of
whether a refusal to agree to leave was unreasonable.
[48] Small and medium size businesses who have fewer employees would ordinarily
experience greater difficulty making arrangements to cover for the work of employees
who are absent on leave. In addition, certain business operations have particular periods
of high demand or activity during which leave requests would not usually be approved.
A decision to refuse a request for annual leave which is based upon genuine, sound
business reasons would not usually be held to be unreasonable.”
[27] I agree that these factors are relevant to the consideration.
Consideration
[28] The factors weighing in favour of the Applicant include:
She made a timely request for the leave
The leave is of short duration
Her birthday and that of her daughter fell within the relevant period
It is convenient in that her husband is not working at that time
[29] However, there are significant factors weighing against the Applicant.
[30] Firstly, while the Applicant made an early and timely application, the rejection of it was
no less timely. This distinguishes this matter from Stevens, where there was a lengthy delay in
the rejection of the leave request.
[31] After the SDA contested the decision to refuse the leave. Ms Fischer made further
enquiries with the Store Manager in an attempt to accommodate the request. The claim that the
employer “did not genuinely consider the request” is rejected.
[32] The company has a “blackout period” of which the Applicant was well aware. As
observed by Cambridge C, certain business operations have particular periods of high demand
or activity during which leave requests would not usually be approved. A decision to refuse a
request for annual leave which is based upon genuine, sound business reasons would not usually
be held to be unreasonable.
[33] The Respondent has provided cogent submissions as to the staffing needs of the business
during the period. I accept that evidence as demonstrating that there would be some impact of
having an experienced team member unavailable at that time. In particular, assuming that the
store would be able to employ additional casual employees for the period, they still require all
the existing permanent team to work at least their base hours but preferably more to ensure
adequate experience on the sales floor.
[34] While the Applicant is only one person, there are capacity considerations in allowing
leave to employees in that period absent some exceptional reason.
[2022] FWC 3293
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[35] While it is relevant that the Applicant and her daughters’ birthdays fall at that time, that
they missed out on a holiday last year, and that the timing is convenient for her husband, these
are not of themselves so significant as to tilt the consideration in the Applicant’s favour. I do
not accept that the Applicant is unable to take leave at another time, rather that she would prefer
not to. While that is understandable, it does not, in all circumstances mean the refusal was
unreasonable.
[36] For these reasons, I find that in all the circumstances, the refusal of the leave request
was not unreasonable.
[37] The answer to the question posed is No.
COMMISSIONER
Appearances:
A Amin for the Applicant.
E Fischer for the Respondent
Hearing details:
2022.
Melbourne (by video via Microsoft Teams):
December 9.
Final written submissions:
Applicant, 6 December 2022.
Respondent, 7 December 2022.
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PR748914
