A few years ago, a review of the Fair Work Act 2009 recommended that the Act be changed in order to:

  • Clarify that annual leave loading is not payable on accrued leave on termination unless the modern award explicitly requires it. For example, the Timber Industry Award 2010 states that if a terminating employee has accrued leave, he or she is paid leave loading on any leave that accrued up to the employee’s last anniversary date, but not on any leave accrued since that date.
  • Mandate that employees who are on workers’ compensation cannot take or accrue annual leave.

Approximately for the last 18 months, legislation to make this happen has been languishing in the parliamentary processes, largely due to the independents in the senate who have been unwilling to agree to the changes and pass the amendments.

Last week, some modifications were agreed to by the senate, which knocked out both of the changes relating to annual leave.

The legislation still hasn’t gone through the entire parliamentary process yet, because it now has to go back to the House of Representatives for the senate amendments to be approved.

But I think it’s fair to say that we won’t see any statutory clarification on either of these issues for some time.