MEA recently assisted a member with a dispute alleging underpayment of wages for ordinary hours that highlights the importance of records for periods of leave.

In this situation the employer was faced with the prospect of making a worker’s position redundant following the completion of a project. There was no new project for the worker for some two or so months. During consultation with the employee they proposed to take a period of leave without pay, rather than be made redundant.

The period before a new project commenced was longer than either party was anticipating, and the worker raised a dispute through the Fair Work Ombudsman seeking to contest the terms of the agreement to take a leave without pay, wanting to be paid for the period of their absence.

The chief element in dispute was the length of the agreement for the worker to be on a period of leave without pay. The worker submitted that the period had ended but the employer submitted that had not made this decision clear.

It is not uncommon that during quite periods employers may, as part of a consultation process about the structure of its workforce, propose or be approached by workers to have periods of leave including leave without pay.

While an employer cannot force workers on to leave it is a reasonable approach by the parties; rather than rounds of redundancies when further works are imminent, the workforce is maintained. Workers are free to not choose these options and the employer then has to make a decision about the sustainability of the current workforce.

In any situation where a worker is taking a period of leave, the employer should have an appropriate leave form. This seemingly rudimentary administrative task is worth literal gold when an employer is faced with a prospect of having to defend a claim for underpayment of wages. Even if the request has come from a worker, or made graciously with the worker’s agreement, a change in attitude from a worker can make a claim difficult to defend.

MEA has an example leave form available to members that we recommend for recording leave periods. If you have any questions regarding leave forms, please contact the Workplace Relations Team on 1300 889 198.

24th February 2020