Fair Work Commission

McCreedy v Village Roadshow Theme Parks Pty Ltd [2020] FWC 2480 (Hunt C, 13 May 2020).

The applicant, a part-time employee, had been stood down under a jobkeeper enabling direction. She had accrued a substantial annual and long service leave balance, which she planned to use on a number of interstate and international holidays.

The applicant’s employer requested that permanent employees take annual leave for half their ordinary hours of work, until their leave balance was reduced to two weeks.

The applicant refused the request. She argued that her refusal was reasonable on a number of grounds, including: her lengthy period of service and substantial leave accrual, her future travel plans, the size and financial position of her employer, and her medical condition.

The Fair Work Commission found that the applicant’s refusal of the request was unreasonable. It noted that the jobkeeper provisions are available for all eligible employers, small or large. It did not consider the applicant’s medical condition to be serious enough to warrant the requirement of a paid annual leave balance of more than two weeks. With regard to the applicant’s future travel plans, the Commission considered that the applicant would not be left without any access to paid leave, and that she could request leave in advance or use long service leave.

Cassandra Powell v H & M Hennes & Mauritz Pty Ltd [2020] FWC 2514 (McKinnon C, 13 May 2020).

The COVID-19 pandemic has had a significant effect on the respondent. It asked permanent employees, including the applicant, to take paid annual leave so that it could reduce its contingent liabilities and support its overall financial position in response to the pandemic.

The applicant refused the request, arguing that it is unfair that her employee entitlements were given less value than the financial position of the respondent, and her employment is not affecting the respondent’s profitability because her wages are wholly covered by the jobkeeper scheme. She wanted to save her leave for when she can take proper holidays, and anticipated a family separation and legal proceedings that may require time off in the future, although she did not know when or how much time off she would need.

The respondent argued that it is doing what it can to keep as many people employer as possible, and its overall aim is to counteract the economic effect of the pandemic and ensure its return to a pre-COVID-19 trading environment.

The Commission observed that the need to support business continuity and job security for all employees of the respondent outweighs the inconvenience to the applicant of not being able to plan her annual leave at a time of her choosing.

The Commission ordered the applicant to take one full day’s paid annual leave per week until:

• her accrued leave balance is reduced to2 weeks
• the request was terminated by agreement, or
• 27 September 2020, whichever is the earlier.