Annual leave under the NES As many of you would know annual leave forms part of the National Employment Standards (NES) which provides minimum conditions for all employees in Australia. The NES continues to apply to all employees even if they are covered by the national workplace relations system, a modern award, enterprise agreement or employment contract. The NES sets out the minimum entitlements to annual leave, how and when annual leave can be taken, and the pay rate employees should receive. What is a ‘blackout’ period? For many retail, hospitality and tourism businesses the Christmas and New Year period from December to January are part of their peak trading periods. As such businesses may want to implement a blackout period. A blackout period is where a business prevents employees from taking annual leave during this time. How can this be implemented? When implementing a blackout period it is recommended that businesses define the blackout and the conditions through a formal leave policy, Contract of Employment or appropriately worded memo to their employees. It should include how leave should be applied for and what blackout periods exist. Important considerations to take into account Businesses need to be mindful that generally speaking it would be unreasonable for an employer to refuse all requests leave during a blackout period. This is because the NES requires employers not to unreasonably refuse requests for leave. As a business you might refuse the request on ‘reasonable business grounds’ however, it is equally important to carefully assess the reason an employee has made the request and the reasonableness of their request. for such request.
Whilst an employer has the right to refuse a request for annual leave on ‘reasonable business grounds,’ consideration should also be given to the reasonableness of refusing the employees request for leave. In some cases a failure to grant annual leave without proper reasons may create the risk of dispute or a claim being made. A well drafted leave policy or procedure can assist minimise this risk to your business.
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