One of the basic rules is that an employee cannot be on annual leave during any period where he or she takes paid personal leave. Where the NES apply, an employer may not validly impose a different position on an employee, either in an employment contract or via an enterprise agreement.
So, if an employee meets the usual notice and evidence requirements and has an adequate paid personal leave balance, an employer must convert a period of approved annual leave to a period of approved, paid personal leave. Whilst it may be tempting for an employee to feel sad and sorry about a ruined holiday, getting on the front foot with an employer is a better choice.
A quick mention of a related issue. Currently, employees in both the Australian Capital Territory and New South Wales will continue to gain NES leave entitlements while in receipt of worker’s compensation benefits. Employees in both jurisdictions may also (but do not have to) take NES leave entitlements simultaneously with receipt of worker’s compensation benefits. Various unpleasant consequences can flow, if you make the wrong decision in relation an employee who became ill or injured at work. When in doubt, it is best to seek specialist legal advice.
For further information, or to make an appointment to discuss your workplace, contact Allyson Hogan, Director at [email protected]