Can I make staff take compulsory leave, even unpaid?

This article first appeared on November 19, 2008.

Dear Aunty B,

It’s only mid-November but it feels like my clients are shutting up shop early for Christmas and deferring all decisions until early next year.

I want to use the opportunity to shut the entire office for the Christmas week and the week after that, and get some paid leave off the books.

Can I ask my staff to take compulsory holidays at Christmas? In some cases it would be unpaid leave. Can I do that?



Dear DL,

Oh yes you can. Our friendly lawyer Uncle Pete (Peter Vitale) says that under the Workplace Relations Act any employer can direct employees to take annual leave for a period of any shutdown over Christmas.

However, the act specifies that the employee must have the leave accumulated. If the employer wants employees to take unpaid leave they need the employee’s consent.

Alternatively, the employer could allow the employee paid leave in advance of it accruing. The employee then is not entitled to any further leave until they accrue enough to cover the advance.

It may also be sensible to get an agreement from those employees (in writing) that if they fail to accrue enough additional leave prior to termination that the amount which remains advanced can be deducted from any other final payments to be made on termination.

So go ahead, shut down and wish your employees a merry holiday! Oh and do clean up before you go. There is nothing worse than coming back in early Jan to Christmas tinsel, cards in the venetians and dirty champagne glasses.

Good luck,

Your Aunty B.

(Peter Vitale is the principal of CCI Victoria Legal)

Aunty B is kicking back on holiday, but her advice is timeless, as evidenced by this Aunty B classic from January 2011. To read more Aunty B advice, click here.

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