BlandsLaw - Blog posts from Employee Leave Entitlements
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High Court challenge to personal leave entitlements

Summary

The Government has announced it is seeking leave to appeal the recent full Federal Court decision to the High Court regarding the entitlement of all employees to 10 calendar days of personal leave per year. The case has far-reaching implications for all employers and employees and will be carefully monitored as it progresses.

For employers

  • Under the current full Federal Court precedent, all employees are entitled to 10 calendar days personal leave per year
  • Consider amending employment contracts to include a reference to NES entitlements for personal leave
  • If in doubt about your obligations, seek legal advice

In a landmark case last month, the full Federal Court ruled that shift workers who were working 12-hour shifts were entitled to 10 calendar days of personal leave per year, amounting to 120 hours, instead of the 76 hours the employer (Mondelez International) believed applied under the NES (based on 38 ordinary hours per week)[1].

The Mondelez employees were all working 36 hours a week- some by working 3 x

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The full bench of the Fair Work Commission recently confirmed that the annual leave provisions in modern awards will be amended to include a right for employers to direct employees to take annual leave if their annual leave accruals exceed eight weeks. The ruling comes as part of the four-yearly review of modern awards and will assist employers to manage and control the accrual of excessive leave by employees.

Excessive Annual Leave Provision

FWC confirmed its earlier view from June 2015, and the wording of the term, regarding the direction by an employer to take leave where an employee has accumulated more than eight weeks annual leave (10 weeks for shiftworkers).

The provision requires that the employer and employer first make a genuine attempt to agree upon steps to reduce the excessive leave accrual, before the employer can direct that leave be taken.

Where a direction to the employee is given, the requirements include that:

a)    The employee’s remaining accrued annual leave is not less than six weeks;

b)    The

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The Federal Circuit Court has recently found a sole director responsible for the underpayment of a long-term employee in Scotto v Scala Bros Pty Ltd & Anor [2014] FCCA 2374.

The employee worked for the delicatessen/ café for nearly 30 years and his claims included the failure of the employer to pay the minimum wage, allowances and overtime; failure to provide payslips and failure to make superannuation contributions throughout this time period.

The employee also alleged that his former employer did not pay out his accrued entitlements when his employment ended in 2010. The total amount claimed was just over $1.5 million plus civil penalties for non-compliance with the legal requirements. The case was brought against both Scala Bros as the employer and against the sole director personally in her capacity as director and manager of the business.

Wading through a messy tangle of facts and complicated family issues, Judge Cameron accepted the validity of a number of the claims although noted that some of the older claims could no

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