The Fair Work Act 2009 provides that paid annual leave may be taken for a period that has been agreed to between an employee and their employer. However, what happens where an employer’s operational requirements change and the employee is needed back at work when they are already on a period of annual leave? 

While annual leave does need to be taken at a time that has been agreed to by the employer, once the period of leave has commenced an employer does not have a unilateral right to recall an employee from annual leave. Similarly, an employee would not be obliged to comply with an employer’s direction to return to work while they are absent on a period of approved annual leave. 

In such situations, the Fair Work Act 2009 prohibits an employer from taking adverse action against an employee because they have exercised a workplace right to take their approved annual leave. As such, should an employee be requested to return to work during a period approved annual leave but refuse to do so, it is important for an employer to ensure that there are no negative repercussions for the employee. 

In situations where an employee is available and does agree to return to work during a period of annual leave (whether this be for a full day or just a few hours), an agreement could be made to either:

·         Re-credit the amount of annual leave (for each hour that is worked) and pay the employee their ordinary rate for the hours worked, or

·         To extend the period of annual leave by the equivalent amount of time that has been worked by the employee during the period.

An entitlement to overtime payments for such work performed during annual leave would only occur where the work was performed outside of the employee’s ordinary hours of work or outside the span of ordinary hours (or in accordance with the terms of the employee’s employment agreement). Employers should also check the provisions of any applicable awards or industrial instruments as these may also contain separate recall to duty or standby provisions which could potentially apply. 

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