When can an employer refuse annual leave?

Entitlement under the FW ACT and Enterprise Agreement

Under s87 of the Fair Work Act 2009 (‘FW ACT’) all employees, other than casuals, covered by the FW Act are entitled to 4 weeks of annual leave for each year of service.[1] Shift workers are entitled to an additional week of annual leave (s87(1) FW ACT), however, the definition of who is a shift worker will be determined by the relevant award or enterprise agreement.[2] Similar to other leave entitlements, annual leave accrues progressively throughout the year (s87(2) FW ACT).

Under clause 85 of the ACT Public Sector Medical Practitioners Enterprise Agreement 2013-2017 (‘Enterprise Agreement’), DiTs are entitled to either 152 hours (20 days) of annual leave if they work a 38 hour work week (cl 85.6(a)) or 160 hours (21 days) if they work a 40 hour work week (cl 85.6(b)). The enterprise agreement also defines a shift worker as an employee who “is rostered to perform ordinary daily hours in accordance with a published roster and/or on Saturdays and Sundays and/or on public holidays on a regular or ongoing basis” (c 18.4).

The keen observer would note that the use of the work ‘regular or ongoing basis’ is not adequately defined and as such presents some challenges. However, as many of you would know, cl 85.7 does state that medical officers who are rostered to and work 10 Sundays in a year will receive an additional week of leave. 

‘No RMO cover’

Access to annual leave under the enterprise agreement will, to a certain degree, be constrained by the operational requirements of the hospital and as such is an included exemption (see cl 85.16-85.18). This constraint is common in other enterprise agreements and for the most part is understandable as some workplaces have ‘peak’ seasons that require a full complement of staff. However, we hear from DiTs that ‘No RMO cover’ is all too frequently cited as the reason why leave is refused (even when leave is applied for 8-10 months in advance!).

Irrespective of the reason cited, both public hospitals must comply with the enterprise agreement and ensure that they “consult with the employee to determine the time (or times) for the annual leave to be taken that is mutually convenient to both the administrative unit and employee” (cl 85.18). If you find that your annual leave application has been rejected for any reason please ensure that you remind the relevant administrator that they are obliged under the enterprise agreement to work with you to identify a mutually convenient time to take the leave requested.

Evidence of the difficulty to access annual leave is best illustrated by the recent introduction of a leave ‘policy’ by Calvary that seeks to restrict access to leave for Doctors seconded to their hospital to 5 days (per 13 week secondment). The AMA (ACT) and a group of Junior Doctors met with Calvary management on July 5th to discuss this issue and the non-payment of overtime. Assurances were given by Calvary management that improved communication and cooperation with ACT Health would result in better access to annual leave.

Employer must not ‘unreasonably’ refuse annual leave

In addition to the relevant clauses in the enterprise agreement, s 88(2) of the FW ACT states that an “employer must not unreasonably refuse to agree to a request by the employee to take paid annual leave”. Unfortunately the legislation is silent on what would constitute ‘unreasonably refusal’, and as such, we advise that any request for leave should take into consideration all of the surrounding circumstances.

Surrounding circumstances & when leave can be refused

If you have requested annual leave it is important that the hospital administrators consider your request in light of:

•  The amount of annual leave you have accrued;
• The last time you went on annual leave;
• The amount of notice provided to the employer;
• The amount of time requested; and
• Operational requirements.

Generally speaking, it would be unreasonable for either public hospitals to refuse to grant annual in circumstances where you: haven’t been on leave for some time, have accrued excess leave, provided adequate notice and the amount of time requested is not excessive. This list is not exhaustive as there are a number of other considerations which may be relevant, additionally, one ‘element’ alone is unlikely to suffice.

Conversely, it would be reasonable for either public hospitals to refuse access to annual leave where for instance: you recently went on leave, you haven’t accrued any or little leave; haven’t provided adequate time and the amount of time requested is excessive. The public hospitals may also cite ‘operational requirements’, however, we believe that this reason alone cannot suffice and that if they are going to rely on this reason they should be looking at alternative leave option that are mutually beneficial to you and them.

Our advice

In circumstances where your request has been denied, we recommend that you consider your surrounding circumstances and raise this with the relevant hospital administrator. In the event your claim is knocked back for second time and you feel it shouldn’t have been, get in touch with either myself (organsier@ama-act.com.au) or Tony Chase (industrial@ama-act.com.au).

*Anish Prasad is the Hospital Organiser for the AMA (ACT). If you are an AMA (ACT) Member and have an employment related concerns or questions, please contact him via email.

[1] This only applies to ‘national system employees’, Hospital Doctors in the ACT are national system employees.

[2] Those not covered by an award or agreement should refer to s87(3)-(5) of the FW ACT