Within the recent decision of the Full Bench of the Fair Work Commission ([2015] FWCFB 3406) one of the seven issues considered was how to deal with excessive annual leave.

It is a problem that many employers face, when they have employees who have excessive annual leave accrued, due to either many years of service, or simply never taking time out to rest and recuperate.

The Full Bench considered various studies in relation to the distribution of those who took annual leave, how it impacted on their workplace efficiency, mental health, fatigue and general productivity. Not surprisingly, the outcomes from those studies highlighted health and safety as one of the critical issues arising when excessive annual leave accrues.

These studies, together with surveys taken from employers and submissions made by employer groups and the ACTU, led to the drafting of a model term by the Full Bench. This term is open to further consideration by the Commission, once further submissions have been made in relation to that model term.

The model term defines an employee who has “excessive leave accrual” as an employee (who is not a shift worker) who has accrued more than eight weeks paid annual leave; or if the employee is a shift worker who has accrued more than ten weeks paid annual leave.

The model term aims to balance the need for the employer to ensure annual leave is taken, with the need for an employee to determine the precise time that such leave is taken. Furthermore, it deals with the circumstance where excessive paid annual leave is accrued, but no employer direction is made (paragraph 189 of the decision).

A further decision is to come from the Full Bench after submissions have been finalised in relation to this model term. At that stage, there will be a decision made as to the implementation of that term into modern awards.

Elspeth Ledwy is a Senior Associate at Kelly Legal and can be contacted on elspeth.ledwy@kellylegal.com.au  or at www.kellylegal.com.au

You can find Elspeth’s column “Mind Your Own Business” in the Daily Mercury newspaper each Wednesday.