The Fair Work Commission (FWC) has decided to significantly vary the annual leave shutdown provisions in 78 modern awards identified in Attachment A of this article, by replacing them with a new model annual leave shutdown clause (model clause).

Prior to this decision, many awards contained annual leave shutdown provisions which allowed an employer to direct an employee to take a period of unpaid leave if that employee did not have a sufficient annual leave balance to cover the entire shutdown period.

This ability to direct an employee to take unpaid leave has been removed.

Whilst the ability to direct an employee onto unpaid leave during a shutdown has been removed, the model clause will allow an employer and an employee to agree to a period of unpaid leave as part of a shutdown period.

Model clause

XX.XX Direction to take annual leave during shutdown

(a) Clause XX.XX applies if an employer:

(i) intends to shut down all or part of its operation for a particular period (temporary shutdown period); and

(ii) wishes to require affected employees to take paid annual leave during that period.

(b) The employer must give the affected employees 28 days’ written notice of a temporary shutdown period, or any shorter period agreed between the employer and the majority of relevant employees.

(c) The employer must give written notice of a temporary shutdown period to any employee who is engaged after the notice is given under clause XX.XX(b) and who will be affected by that period as soon as reasonably practicable after the employee is engaged.

(d) The employer may direct the employee to take a period of paid annual leave to which the employee has accrued an entitlement during a temporary shutdown period.

(e) A direction by the employer under clause XX.XX(d):

(i) must be in writing; and

(ii) must be reasonable.

(f) The employee must take paid annual leave in accordance with a direction under clause XX.XX(d).

(g) In respect of any part of a temporary shutdown period which is not the subject of a direction under clause XX.XX(d), an employer and an employee may agree, in writing, for the employee to take leave without pay during that part of the temporary shutdown period.

(h) An employee may take annual leave in advance during a temporary shutdown period in accordance with an agreement under clause XX.XX.

(i) In determining the amount of paid annual leave to which an employee has accrued an entitlement, any period of paid annual leave taken in advance by the employee, in accordance with an agreement under clause XX.XX, to which an entitlement has not been accrued, is to be taken into account.

(j) Clauses XX.XX to XX.XX do not apply to a period of annual leave that an employee is required to take during a temporary shutdown period in accordance with clause XX.XX

Some awards will have a slightly different clause

The FWC decided that the model clause above would be adapted slightly to reflect aspects of existing provisions of certain individual awards.

For example, the Building and Construction General On-site Award 2020 only allows shutdowns ‘in conjunction with the Christmas/New Year holidays’, and other awards provide a notice period of longer than 28 days as required by the model clause.

The FWC will shortly publish proposed determinations setting out the specific changes to individual awards.

What is the operative date of the changes?

The new shutdown provisions will be operative on 1 May 2023.

Employers are encouraged to check the list of awards contained in Attachment A of this article to determine if they will be affected by these changes.

What potential options are available to employers?

Where employees do not have sufficient annual leave to cover the full shutdown period, employers should aim to reach agreement from employees to take a period of unpaid leave. In these circumstances, an employee might also agree to use other forms of paid leave to cover the period e.g taking time off in lieu of overtime, taking any accrued RDOs or taking annual leave in advance.

Employers should also manage annual leave throughout the year to ensure that employees maintain enough leave to cover a future shutdown period. The Fair Work Act 2009 (Cth) allows an employer to refuse an employee’s request for annual leave if the refusal is reasonable.

During this decision, the FWC expressed a view that the refusal of an annual leave request may be reasonable if its approval would result in the employee having an insufficient leave balance to cover a future shutdown.

Attachment A

List of modern awards that will be varied to include the Model Clause

1. Aboriginal and Torres Strait Islander Health Workers and Practitioners and Aboriginal

Community Controlled Health Services Award 2020 (clause 22.3)

2. Aircraft Cabin Crew Award 2020 (clause 19.4)

3. Airline Operations–Ground Staff Award 2020 (clause 22.6)

4. Alpine Resorts Award 2020 (clause 25.3)

5. Aluminium Industry Award 2020 (clause 22.4)

6. Ambulance and Patient Transport Industry Award 2020 (clause 22.7)

7. Animal Care and Veterinary Services Award 2020 (clause 22.5)

8. Aquaculture Industry Award 2020 (clause 22.9)

9. Asphalt Industry Award 2020 (clause 21.8)

10. Banking, Finance and Insurance Award 2020 (clause 22.5)

11. Black Coal Mining Industry Award 2020 (clause 24.9)

12. Broadcasting and Recorded Entertainment Award 2020 (clause 18.6)

13. Building and Construction General On-site Award 2020 (clause 31.3)

14. Business Equipment Award 2020 (clause 23.5)

15. Car Parking Award 2020 (clause 24.6)

16. Cemetery Industry Award 2020 (clause 19.3)

17. Cement, Lime and Quarrying Award 2020 (clause 22.8)

18. Cleaning Services Award 2020 (clause 21.4)

19. Clerks—Private Sector Award 2020 (clause 32.5)

20. Coal Export Terminals Award 2020 (clause 20.7)

21. Commercial Sales Award 2020 (clause 20.6)

22. Concrete Products Award 2020 (clause 22.6)

23. Contract Call Centres Award 2020 (clause 22.10)

24. Educational Services (Post-Secondary Education) Award 2020 (clause 22.5)

25. Electrical Power Industry Award 2020 (clause 21.8)

26. Electrical, Electronic and Communications Contracting Award 2020 (clause 21.5)

27. Fitness Industry Award 2020 (clause 21.3)

28. Food, Beverage and Tobacco Manufacturing Award 2020 (clause 25.11)

29. Gardening and Landscaping Services Award 2020 (clause 20.9)

30. Gas Industry Award 2020 (clause 20.7)

31. General Retail Industry Award 2020 (clause 28.4)

32. Graphic Arts, Printing and Publishing Award 2020 (clause 31.12)

33. Hair and Beauty Industry Award 2020 (clause 24.3)

34. Health Professionals and Support Services Award 2020 (clause 26.5)

35. Higher Education Industry—General Staff—Award 2020 (clause 24.4)

36. Horse and Greyhound Training Award 2020 (clause 18.6)

37. Hospitality Industry (General) Award 2020 (clause 30.4)

38. Hydrocarbons Industry (Upstream) Award 2020 (clause 25.7)

39. Joinery and Building Trades Award 2020 (clause 27.9)

40. Journalists Published Media Award 2020 (clause 20.8)

41. Legal Services Award 2020 (clause 22.7)

42. Local Government Industry Award 2020 (clause 23.5)

43. Manufacturing and Associated Industries and Occupations Award 2020 (clause 34.7)

44. Meat Industry Award 2020 (clause 25.8)

45. Mining Industry Award 2020 (clause 22.7)

46. Mobile Crane Hiring Award 2020 (clause 24.6)

47. Miscellaneous Award 2020 (clause 21.4)

48. Nursery Award 2020 (clause 22.12)

49. Nurses Award 2020 (clause 22.7)

50. Oil Refining and Manufacturing Award 2020 (clause 24.6)

51. Pest Control Industry Award 2020 (clause 23.9)

52. Pharmaceutical Industry Award 2020 (clause 21.5)

53. Plumbing and Fire Sprinklers Award 2020 (clause 24.4)

54. Poultry Processing Award 2020 (clause 21.5)

55. Premixed Concrete Award 2020 (clause 22.8)

56. Professional Employees Award 2020 (clause 18.4)

57. Racing Clubs Events Award 2020 (clause 23.5)

58. Racing Industry Ground Maintenance Award 2020 (clause 21.5)

59. Real Estate Industry Award 2020 (clause 20.5(a))

60. Registered and Licensed Clubs Award 2020 (clause 25.4)

61. Restaurant Industry Award 2020 (clause 25.4)

62. Road Transport (Long Distance Operations) Award 2020 (clause 20.4)

63. Road Transport and Distribution Award 2020 (clause 24.9)

64. Salt Industry Award 2020 (clause 23.10)

65. Seafood Processing Award 2020 (clause 21.11)

66. Security Services Industry Award 2020 (clause 21.4)

67. Silviculture Award 2020 (clause 22.5)

68. Storage Services and Wholesale Award 2020 (clause 24.5)

69. Sugar Industry Award 2020 (clause 31.5)

70. Supported Employment Services Award 2020 (clause 32.3)

71. Surveying Award 2020 (clause 22.7)

72. Telecommunications Services Award 2020 (clause 22.9)

73. Textile, Clothing, Footwear and Associated Industries Award 2020 (clause 32.6)

74. Timber Industry Award 2020 (clause 28.10)

75. Vehicle Repair, Services and Retail Award 2020 (clause 29.6)

76. Water Industry Award 2020 (clause 22.4)

77. Wine Industry Award 2020 (clause 24.9)

78. Wool Storage, Sampling and Testing Award 2020 (clause 23.5)

Modern awards can be accessed either on the Fair Work Commission website or the Fair Work Ombudsman website.