Q. Our company is closing down over the Christmas-New Year period with employees taking annual leave. One of our employees is currently absent on paid personal leave and have advised us their expected return to work will be mid-January. This means the period of paid personal leave will coincide with the period the employee would normally be absent on paid annual leave. We are not sure which form of leave takes precedence in this circumstance as everyone else in the organisation will be absent on paid annual leave. Should the period of the annual close down be deducted from the employee’s accrued annual leave or accrued personal/carer’s leave balance?
A. Under the Fair Work Act (s.89(2)), where an employee is absent on paid annual leave which includes paid personal/carer’s leave, the employee is taken not to be on paid annual leave for the period of the absence for which the employee is entitled to paid personal/carer’s leave. If the employee returns from annual leave on the agreed date prior to taking annual leave, the employee’s annual leave balance is re-credited the number of day(s) the employee was on paid personal/carer’s leave. This means the employee remains on paid personal leave over the annual close down period.
Under the Fair Work Act (s.98), if the period during which an employee takes paid personal/carer’s leave includes a day or part-day that that is a public holiday in the place where the employee is based for work purposes, the employee is to be taken not to be on paid personal/carer’s leave on that public holiday. The employee’s personal/carer’s leave balance is to be re-credited for each public holiday that occurs during a period of paid personal/carer’s leave.
Bottom line
With the exception of unpaid parental leave, the Fair Work Act provides that annual leave does not apply where the employee has an entitlement to another form of leave which coincides with annual leave, including paid personal/carer’s leave, public holidays, compassionate leave and community service leave (jury service).
