DECISION

Fair Work Act 2009
s.789GV - Application to deal with a dispute under Part 6-4C

Ms Leonie McCreedy
v
Village Roadshow Theme Parks Pty Ltd
(C2020/3251)

Application to deal with a dispute in relation to JobKeeper – dispute within Commission’s jurisdiction – employer requested employee take annual leave – employee’s refusal of employer’s request unreasonable – order issued pursuant to s.789GV(4)(d) of the Fair Work Act 2009.

[1] On 6 May 2020 Ms Leonie McCreedy applied to the Commission to deal with a JobKeeper dispute under Part 6-4C of the Fair Work Act 2009 (the Act). Ms McCreedy has been employed by Village Roadshow Theme Parks Pty Ltd (VRTP) for approximately 22 years.

[2] Ms McCreedy works in the Staff Services Department, and her duties include onboarding new staff. She is currently employed as a part-time employee working 30 hours per fortnight, typically two days per week over 15 hours.

[3] It is undisputed that as a result of restrictions on VRTP’s ability to operate its theme parks due to the impact of COVID-19, a large number of its employees have been stood down from work. Ms McCreedy last attended work on 19 March 2020, and she was stood down on 23 March 2020.

[4] I understand that VRTP has issued to Ms McCreedy a JobKeeper enabling direction (the Direction), directing Ms McCreedy not to attend for work. In addition, on 29 April 2020 VRTP issued to Ms McCreedy a letter (the Annual Leave Request Letter) detailing the challenges facing VRTP, with thanks given to employees for their continued support until normal operations are resumed. It noted that there has been a reduction of salaries for those in the Senior Leadership Team, a reduction of costs where possible, and a request for employees to use their leave entitlements.

[5] The Annual Leave Request Letter noted that Ms McCreedy is eligible to participate in the federal government JobKeeper scheme, noted that she remained stood down and not required for work, and stated the following:

“As recently announced, there has been a request that all employees with an annual leave balance of greater than 10 working days will be asked to take 2.5 days per week of annual leave. This is a request you must consider and not refuse unreasonably. For employees who have the required annual leave balance, 2.5 days per week of annual leave will be processed centrally and there is no requirement for you to submit a leave request in the system.

This arrangement will be in place until either of the following situation occur, the employee’s annual leave balance is 10 days or the 27^th of September 2020 is reached.

Where your pay in a normal fortnight is less than $1500 (before tax) Village Roadshow will make the required payment to ensure that the minimum guarantee amount is reached …..

……

During this period, we would be happy to discuss any ways we can vary these arrangements, if possible. We can also discuss alternatives to enable you to use leave entitlements, including extending your period of annual leave on half pay.

Please feel free to provide any comments or questions you have by email to [email]. Even if you do not have any comments, it is important that you reply to us indicating that you have received the letter and understand it.

By all means, let us know if you prefer to have a direct discussion and we will make arrangements for this to occur.

Your annual leave and personal entitlements will continue to accrue based on your normal hours of work during the period of Stand Down…..”

[6] VRTP has since clarified that the above request is suitable for full-time employees, and where it is stated that the floor of minimum of 10 days will be maintained, it is meant to read two weeks. In the case of part-time employees, the annual leave requested of them is half of their ordinary hours, not 2.5 days per week. For example, and in Ms McCreedy’s case, if a permanent part-time employee works two days per week, they are requested to take one day’s annual leave per week, and the employee’s two week minimum balance is four days, as opposed to 10 days for a full-time employee.

The dispute

[7] Ms McCreedy’s dispute centres around the request by VRTP for her to take a substantial amount of annual leave with the intention of reducing her annual leave accrual, over time, to two weeks, that being four days. She considers that she is not being unreasonable in her refusal to agree to the request.

[8] During a telephone hearing convened before me on 11 May 2020, the Commission was informed that Ms McCreedy has approximately 140 hours of annual leave accrual, and approximately 130 hours of long service leave accrual. At 15 hours per week, the accruals are approximately 9.3 weeks and 8.6 weeks respectively.

[9] Ms McCreedy stated that she understood the JobKeeper legislation, introduced on 8 April 2020 to allow an employer to request employees to take annual leave, and the employee not unreasonably refuse, so long as the employee maintained a minimum balance of two weeks’ leave at all times. Further, she stated that she understood that during the anticipated lengthy stand down until VRTP resumes operations and she is returned to work, annual leave will continue to accrue.

[10] Ms McCreedy represented herself during the hearing. Leave was granted pursuant to s.596(2)(a) to Mr Peter Vitale, Solicitor, to represent VRTP. Ms Emily Duran, Group General Manager Human Resources also appeared for VRTP.

[11] Ms McCreedy has five holidays planned in the coming months and into 2021. She objects to VRTP drawing down on her accrued annual leave to assist it in reducing employees’ leave balances, and in particular, her leave balance. During the hearing she stated, “The financial position of [my employer] does not concern me.”

[12] Ms McCreedy stated that she had received a sympathetic ear from a federal parliamentarian’s electoral office, and she had been, or was prepared to speak with “A Current Affair”. She considered that the JobKeeper legislation was not intended to assist a large employer such as VRTP use its employees’ annual leave accruals to set-off against the JobKeeper payment made by the federal government. She considered that small employers might need to undertake that course of action if they would otherwise collapse, but employees such as her, a long-serving employee, working for a very large corporation should not have their annual leave adversely affected.

[13] Ms McCreedy submitted that VRTP’s request particularly hit long-serving employees with large leave balances hard, as their leave balance would be reduced to two weeks; the same minimum leave balance as employees with a significantly less amount of service, and in all likelihood, leave accrual. She submitted that it would be fairer to require all employees to take annual leave, but it should be the same amount of leave taken, so as not to disadvantage employees with a larger leave accrual such as herself.

Planned holidays

[14] Ms McCreedy has the following holidays planned:

(a) 25 September 2020 – 28 September 2020

Gold Coast – Sydney return

Attending the musical, “Frozen” on 27 September 2020

Jetstar tickets purchased

Approximately two days’ annual leave required

(b) 7 October 2020 – 12 October 2020

Gold Coast – Sydney return

Jetstar tickets purchased

Approximately two days’ annual leave required

(c) 17 November 2020 – 28 November 2020

Cruise – Pacific Explorer. New Guinea Island Encounter

Paid in full

Approximately four days’ annual leave required

(d) 28 March 2021 – 7 April 2021

Adelaide motorhome hire

Postponed trip from March/April 2020

Value approximately $8,500

11 calendar days, but due to uncertainty of roster, it is not yet known how many annual leave days might be required

(e) June/July 2021

Intention to travel to Europe to be with adult daughter whose trip was cut short in 2020 due to COVID-19, and to visit with her biological father’s family as she was recently made aware of his existence. Anticipated to be approximately 6 weeks in total, utilising some long service leave

[15] After receipt of the Annual Leave Request Letter, Ms McCreedy lodged with VRTP an “Annual leave justification” which stated the following:

“I have 140 hours of accrued annual leave. Prior to COVID19 I was waiting on a new roster to be confirmed before submitting accurate annual leave requests. These requests have now been submitted but not yet approved. The following two annual leave requests were submitted prior to being stood down and were verbally approved by Jennifer Curry. 12/10 - 16/10/20 - Family reunion - flights and accomodation booked and paid. (30hrs A/L) 17/11 -28/11/20-Cruise booked & paid (45hours A/L) 28/4 - 7/4/21 - Non refundable flights and motorhome booked & paid for 2019, cancelled due to COVID19. Rescheduled for same time next year. Happy for you to reimburse the 2019 annual leave as the holiday was cancelled.(22.5hours A/L) 25/6 - 8/7/21 - I have International flight credits due to COVID19 which will need to be used at some point. Recently I discovered my father is not my father. I have discovered that my biological father is Dutch and I am keen to get to Holland to meet my biological family ASAP. This had been planned for June/July this year. June/July is a quiet time in Staff Services so thinking this would be a good time in 2021. (37.5hours A/L) As you can see I have firm plans in place to utilise the annual leave I have accrued over the past 22years. Please note that I [redacted]. I would be happy to provide a medical certificate if required. The recent company decisions with regards to my annual leave have caused a great deal of angst in these already challenging and anxious times.”

[16] Ms McCreedy disclosed a medical condition from which she suffers and requested the Commission not include such medical condition in this decision. I have agreed not to state the nature of the medical condition, but I have had due regard to the information presently before the Commission. A medical certificate dated 11 May 2020 was admitted into evidence and I have taken the details within it into consideration.

[17] The response filed and served by VRTP stated that none of the dates on which Ms McCreedy says that she has scheduled leave have been previously notified to VRTP before the business shut down on 23 March 2020.

[18] VRTP’s annual leave policy was admitted into evidence. A relevant part of the policy states:

“All Leave must be approved by the Manager before it is guaranteed. You should not book flights etc until you have received your Manager’s approval. VRTP will not be held responsible if you pre-book/pay for your holiday before getting it approved, and it is denied. VRTP reserves the right to decline leave requests when it does not suit the operational needs of the business. If you wish to cancel or change your approved Leave, you must give your department at least 2 weeks notice prior to roster being posted.”

and

“Leave can only be requested within 12 months, if a team member wants to guarantee time off, for example needs to request time off for their wedding etc, and wants to guarantee that time, if the request is over 12 months, they must speak directly to their Manager to get written approval (over email or via a letter), and then within 12 months would need to follow up with the on-line form in ESS.”

[19] On 1 May 2020, Ms Maya Mirkovic, People & Culture Operations Manager responded to Ms McCreedy’s “Annual leave justification” as follows:

“Dear Leonie,

Thank you for your annual leave justification request. 

As you can appreciate this is an unprecedented situation and we are navigating through these uncertain times with the ultimate goal to support our team members while also protecting the health and viability of Village Roadshow now and into the future.

Under the new JobKeeper subsidy as covered by the Fair Work Act, we have made the request to team members to use their annual leave entitlements to a maximum balance of 10 days or equivalent. 

The senior management team has reviewed your request and unfortunately it has been denied, as it does not meet our guidelines to unreasonably refuse our request to take leave. 

Our strict guidelines consider team members who have serious personal medical conditions, supported by a doctor’s recommendation. 

We understand that this will be a very challenging time and there is always emotional and mental support available to you. If you need additional support please contact our Employee Assistance Program Provider on [number] and follow the instructions.

As you can appreciate this is a strictly confidential situation and is not to be shared or discussed with other team members.

Thank you again for your patience and understanding during these difficult times.”

[20] Having received Ms McCreedy’s application to the Commission, Ms Mirkovic wrote to Ms McCreedy on 9 May 2020 and stated VRTP had checked with her supervisor, who denied that she had verbally approved Ms McCreedy’s leave. The email stated, “We are not aware of any of the above leave being applied for and approved, however, if you are able to provide us with documentation in relation to flights, cruises etc. that you have booked and paid for, then we will be able to reassess your leave request justification.” Following the hearing, Ms McCreedy provided an email to my chambers, copying in VRTP, demonstrating that on 1 February 2020 she had applied on-line for three days’ leave for her cruise holiday in November 2020, which would have required three days of annual leave due to her roster at that time. Her evidence is that due to a new, proposed roster, she would require four days’ annual leave to cover that period. The on-line leave request has not yet been actioned.
[21] Ms Mirkovic sent a follow-up email to Ms McCreedy on 11 May 2020 at 8:34am, noting that VRTP’s response was required to be filed and served by 10:00am the same day. Ms McCreedy responded at 12:05pm as follows:

“Good Morning Maya

I received an email from Jenny asking me to resubmit my annual leave request after the new Staff Services roster was implemented on Thursday 26th March 2020. My last day at work was Thursday 19th March and I was stood down on Monday 23rd March, therefore I did not get a chance to resubmit my annual leave request. Is there any chance I could access my work emails from home so I could forward this email to you? Perhaps WFP could confirm this? 

The new Staff Services roster affects other events which I have booked throughout the year. Generally I book events around my committed hours to VRTP to alleviate disruption to my workplace. Because of the new roster I will be required to utilise my annual leave which I would not have needed to previously.

I was intending on joining my daughter in Europe at the end of her University exchange in July/August this year. My daughter was forced to flee Austria after attending just one at The University of Vienna. We were both very disappointed as you can imagine. [name] is planning the exchange again in 2021 and I am still intending on joining her and looking forward to meeting my Dutch relatives. 

As previously advised, I [redacted] which is actually considered a serious medical condition. Please find attached confirmation from my doctor regarding my medical condition.

Please also find attached motorhome, cruise, concert and all flight bookings.

Thank you for your consideration and assistance, it is very much appreciated.” 

[22] During the hearing, evidence was filed and served indicating that Ms McCreedy typically takes between one and three days’ annual leave at any time. It was submitted by VRTP that this is indicative of Ms McCreedy taking annual leave at times most suitable to her, and largely not relevant to any medical condition which it was not aware of prior to the application having been filed. Ms McCreedy stated that she takes a small number of days’ leave at any one time due to maximising leave around the days of the week when she is not rostered to work. She said regard should also be had to the occasions when annual leave requests have been declined.

[23] Ms McCreedy noted that she is paid approximately $25 per hour. I note that in the performance of 15 hours’ work per week, she is typically paid approximately $375 per week. Ms McCreedy will be paid $750 per week during the time she is eligible for JobKeeper payments.

[24] Ms McCreedy submitted that other employees of VRTP, and predominantly senior management should be helping to do the heavy lifting in reducing costs to the business. She considered that it was unfair that employees such as her, with a period of long employment, should have to see her annual leave accrual reduced on account of the request of her employer. She suggested that it was unfair that casual employees who typically earn less than $750 per week, and were having their wages increased to $750 per week, were unaffected by the employer’s request to permanent employees to take annual leave when it was not agreed.

[25] VRTP submitted that appropriate consideration would always be given to an employee’s special circumstances, especially around medical conditions. It was stated, without evidence being produced, that one female employee with breast cancer has been supported to ensure she has an adequate amount of annual leave accrual following VRTP’s request to take annual leave. It was submitted that Ms McCreedy’s stated medical condition does not deserve any special treatment from VRTP beyond the typical expectation employees have to look forward to upcoming holidays.

[26] Further, it was stated that recently VRTP had introduced a policy allowing employees to take up to 10 days’ annual leave in advance, permitting an employee having a negative annual leave balance of up to 10 days. Ms Duran stated that this policy is continuing during the JobKeeper period.

[27] Where there had not been appropriate clarity prior to the hearing, Ms Duran stated during the hearing that the request to part-time employees to take annual leave will be on a pro-rata basis, and in the case of Ms McCreedy, despite the Annual Leave Request Letter stating annual leave of 2.5 days per week, due to Ms McCreedy’s hours of only 15 per week, she is requested to take one day’s annual leave per week. Ms McCreedy confirmed that despite VRTP requiring one day’s leave to be taken per week, and not 2.5 days as earlier stated, this did not satisfy her dispute with VRTP, and she was still upset that her annual leave would be drawn down by VRTP to four days. I understood that to mean that she would continue to refuse the request to agree to take annual leave.

Further evidence and submissions following the hearing

[28] I provided to the parties the opportunity during 12 May 2020 to provide further material to the Commission for consideration. VRTP confirmed early on 12 May 2020 that it would require employees to maintain a floor of two weeks’ leave, and not 10 days. For Ms McCreedy, that made it clear that it could require her take leave at one day per week, with a minimum of four days’ leave accrual.

[29] Ms McCreedy sought leave to file additional material including the opinions of a certified financial planner she had consulted, financial information of VRTP, views of the Australian Workers’ Union, and views of VRTP management and employees on a closed Facebook group, monitored by VRTP management, where the majority of employees expressed concern, angst and disgust at VRTP for seeking to utilise employees’ annual leave balances utilising JobKeeper payments. I have had regard to the material filed and served by Ms McCreedy, and have given each of the documents appropriate weight to the relevant consideration before me.

Is this a dispute about Part 6-4C of the Act?

[30] Part 6-4C of the Act was introduced in conjunction with the legislative changes accompanying the JobKeeper programme, and commenced from 9 April 2020.

[31] Part 6-4C allows employers to give certain directions to employees (JobKeeper enabling directions) and make certain requests of them. Part 6-4C also requires the Commission to deal with applications concerning certain JobKeeper disputes.

[32] Section 789GV of the Act provides:

“789GV FWC may deal with a dispute about the operation of this Part

(1) The FWC may deal with a dispute about the operation of this Part.

(2) The FWC may deal with a dispute by arbitration.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(3) The FWC may deal with a dispute only on application by any of the following:

(a) an employee;

(b) an employer;

(c) an employee organisation;

(d) an employer organisation.

(4) The FWC may make any of the following orders:

(a) an order that the FWC considers desirable to give effect to a jobkeeper

enabling direction;

(b) an order setting aside a jobkeeper enabling direction;

(c) an order:

(i) setting aside a jobkeeper enabling direction; and

(ii) substituting a different jobkeeper enabling direction;

(d) any other order that the FWC considers appropriate.

(5) The FWC must not make an order under paragraph (4)(a) or (c) on or after 28 September 2020.

(6) An order made by the FWC under paragraph (4)(a) ceases to have effect at the start of 28 September 2020.

(7) In dealing with the dispute, the FWC must take into account fairness between the parties concerned.”

[33] I am satisfied that Ms McCreedy, as an employee in receipt of a JobKeeper enabling direction was competent to make the application. It is not disputed, and I so find that VRTP is a national system employer, and qualified for the JobKeeper scheme. Ms McCreedy is enrolled in the scheme.

[34] The dispute before the Commission is not one of a JobKeeper enabling direction. Those matters are limited to the following provisions: 1

(a) Not work on a day or days on which the employee would usually work;

(b) Work for a lesser period than the period which the employee would ordinarily work on a particular day or days; or

(c) Work a reduced number of hours (compared with the employee’s ordinary hours of work).

[35] Accordingly, it is not open to the Commission to deal with the dispute presently before the Commission by making orders pursuant to s.789GV(4)(a), (b) or (c). Being a matter not dealing with a JobKeeper enabling direction, the order the Commission might wish to make is provided for in s.789GV(4)(d):

“(4) The FWC may make any of the following orders:

…..

…..

…..

(d) any other order that the FWC considers appropriate.”

[36] Section 789GJ(1) is the relevant consideration where Ms McCreedy disputes VRTP’s request for her to take annual leave:

“789GJ Taking paid annual leave

(1) If:

(a) the employer of an employee qualifies for the jobkeeper scheme; and

(b) the employer is entitled to one or more jobkeeper payments for the employee; and

(c) the employer gives the employee a request to take paid annual leave; and

(d) complying with the request will not result in the employee having a balance of paid annual leave of fewer than 2 weeks;

the employee:

(e) must consider the request; and

(f) must not unreasonably refuse the request.”

[37] The Explanatory Memorandum which assisted in the passage of the Bill through Parliament includes the following:

“Section 789GJ (Taking paid annual leave)

1.64 Section 789GJ facilitates an employee (whose employer qualifies for the JobKeeper payment scheme in relation to them) to consider their employer’s request to take paid annual leave and to agree (despite any designated employment provision) to take annual leave at half pay.

1.65 If an employer qualifies for the JobKeeper scheme and is entitled to JobKeeper payments for an employee, an employee must consider (and must not unreasonably refuse) their employer’s request to take annual leave, provided that the leave arrangement would not result in reducing the employee’s leave balance to fewer than two weeks. If the employee does not agree to the request, the FWC could settle a dispute about this by arbitration (see Division 10).”

[38] It is Ms McCreedy’s submission that in all of the circumstances, including but not limited to:

(a) her lengthy period of service and annual leave accrual;

(b) her medical condition;

(c) her desire to take future holidays that have largely been paid for;

(d) the consideration that some holidays had been approved but have now been cancelled due to the pandemic;

(e) the consideration that she had recently requested annual leave be approved and it has not yet been approved;

(f) the very large size of VRTP and its solid financial position;

(g) the inherent unfairness that casual employees receiving JobKeeper payments are not, to her knowledge, disadvantaged;

(h) the inherent unfairness that employees receiving JobSeeker payments, as opposed to Jobkeeper payments are not requested to take annual leave in the way that she is being requested

she has not unreasonably refused the request of VRTP.

[39] On 12 May 2020, Ms McCreedy submitted that large employers, the size of VRTP should not be able to draw down on employees’ annual leave balances, and in particular, Ms McCreedy’s annual leave balance. Ms McCreedy submitted the following:

“I would just like to reiterate that if my employer was a small business that was at risk of bankruptcy due to COVID-19 I would do whatever it took to help them stay afloat. Trust me I would work for nothing! But the fact remains that VRTP is merely lining their own pockets, and paying their shareholders a dividend is of more importance than the outrage of their employees. Every employee will have their own reason why they want to keep their annual leave and I don't believe VRTP should have the power to play God and determine what medical conditions meet their strict guidelines.” 

[40] Ms McCreedy further submitted that she agreed with VRTP that the Commission’s task is to determine if her refusal to agree to the request of VRTP is unreasonable which she stated can be defined as clearly inappropriate, excess or harmful in degree or kind or lacking justification in fact or circumstance. She considered that an objective person would not find her reasoning as “inappropriate, excessive or harmful.”

[41] At the conclusion of the hearing it was clear that the parties were unable to resolve the dispute between them though conciliation. In my view, Ms McCreedy became more determined as the hearing progressed. I understand that she seeks resolution of the dispute by a declaration of the Commission that she is not being unreasonable by refusing the request that has been put to her. She considered that her hard-earned annual leave accrual would be significantly depleted on her eventual return to work, and it would impact adversely on her desires to have future leave opportunities. In her application form she requested the Commission advise VRTP that deducting employees’ annual leave without their consent is called theft.

Consideration

[42] I conclude that the Commission has jurisdiction to deal with the dispute notified by Ms McCreedy.

[43] The dispute is not of a JobKeeper enabling direction. It was one as to the request made by VRTP for Ms McCreedy to take annual leave at the rate of one day per week (given her part-time hours of work), without reducing Ms McCreedy’s minimum balance below four days.

[44] Currently, Ms McCreedy has available approximately 18.6 days of annual leave, and approximately 17.3 days of long service leave. Collectively that is approximately 18 weeks of paid leave, taking into account she works two days per week (on average). Considering Ms McCreedy’s part-time status, she has a substantial number of days available as annual leave and long service leave. It is not disputed that she has earned those considerable days over a substantial number of years’ service with VRTP.

[45] In the period between now and 27 September 2020, when the relevant provisions in the Act will cease to have effect, if Ms McCreedy is requested and does take one day’s annual leave per week, while maintaining a minimum of four days’ annual leave, and whilst accruing annual leave whilst stood down, I project that Ms McCreedy will reach a balance of four days’ annual leave after a period of approximately 16 weeks. That is so as Ms McCreedy will be ‘dropping’ one day’s annual leave per week from her annual leave balance. After 13 weeks, her balance from 18.6 days’ annual leave would fall to 5.6 days, however she will have accrued two days’ leave during that time, to bring her balance to 7.6 days. It would take a further (approximately) three weeks for Ms McCreedy’s balance to be at around four days. This is a period in early September 2020.

[46] If Ms McCreedy did not take, nor was she directed to take long service leave between now and the period of 16 weeks, her long service leave accrual would be at around 18 days. Ms McCreedy’s combined leave available to her at that time would be around 22 days, being a period of 11 weeks’ leave.

[47] This is a substantial period of leave, however I note that it is mostly made up of accrued long service leave. Understandably, it would take Ms McCreedy, working only two days per week, around 2.3 years to build up her annual leave to the current balance of 18.6 days. It is comparable to an amount of approximately 45 days’ annual leave for a permanent, full-time employee.

[48] I am mindful of the legislative requirement to leave a balance of no less than two weeks’ leave for employees requested to take annual leave. Whilst this is equivalent (typically) to 10 days’ leave for a permanent employee, it is as little as four days for a part-time employee working only two days per week. Still, when the employee wishes to enjoy a week-long holiday, they are typically only utilising two days of annual leave, and not five days in the case of a (typical) full-time employee.

[49] Ms McCreedy gave evidence that her roster changes, and in one scenario, she would be employed to work Monday and Tuesday of one week, and Thursday and Friday in the same week, but this spans over the employer’s fortnight. If she wished to holiday in that week, she would need to take four days of annual leave. She did state, however, that she might then not work again for a period of approximately nine days.

[50] I have had regard to the leave policy of VRTP, cautioning employees not to book trips or make payments prior to the leave being approved as it is not guaranteed. With respect to Ms McCreedy’s planned trips in September, October and November 2020, Ms McCreedy committed herself to those expenses prior to obtaining formal approval from VRTP. I appreciate that Ms McCreedy may have required minimal leave for her proposed holidays in September and October 2020, being relatively short trips, and potentially working in around her roster as she knew it to be at that time. What is now known is that with the proposed roster recently issued to Ms McCreedy, which may yet change again, she would require two days’ annual leave for each of those holidays. That would largely exhaust her annual leave balance at that time.

[51] Ms McCreedy’s annual leave balance will increase from late-September 2020 on account of the relevant legislative provisions ceasing to be in place, yet she will not have four days’ annual leave available by her planned cruise in November 2020. VRTP’s response is that the leave had not been approved prior to Ms McCreedy paying for the cruise, or alternatively she could apply for annual leave in advance, or request paid long service leave.

[52] Relevant to Ms McCreedy’s other proposed trips, it is certainly unfortunate that it became necessary for her to cancel the motorhome trip when the leave in early 2020 had already been approved. She was preparing to commence the leave when relevant state borders closed, preventing the travel from being taken. Ms McCreedy’s planned mid-2021 is a substantial period of time away, and where Ms McCreedy had planned to take leave for a short period in 2020, it is her intention to seek leave for a period of approximately six weeks in mid-2021.

[53] Section 789GV(7) requires the Commission to determine disputes under Part 6-4C taking in account fairness between the parties. VRTP submitted that its business is currently unable to operate at all; a state of affairs likely to obtain for some considerable time yet.

[54] VRTP has stated its intention to request of all relevant employees that they take annual leave of up to 2.5 days per week while in receipt of the JobKeeper payment. This is permitted, and in Ms McCreedy’s case, she is requested to take annual leave at the rate of one day per week. The Act requires that she must consider the request and must not unreasonably refuse the request.

[55] I have had regard to all of the material before me. I do not accept Ms McCreedy’s submission that the requests made by VRTP to its relevant employees is unreasonable, or that the provisions are or should only be available to smaller employers, and not employers the size of VRTP. The Explanatory Memorandum does not support such a submission.

[56] I consider that during the hearing and in material filed, Ms McCreedy made incredibly unsympathetic, and in my view, belligerent and unwarranted attacks on VRTP, despite the JobKeeper provisions being available for all eligible employers, small or large. The package has been introduced to put eligible organisations into hibernation, to allow for continued employment of eligible employees. Ms McCreedy stated that she is not eligible for JobSeeker payments on account of her partner’s earnings, yet was derisive towards VRTP for, what she considered to be a capitalisation of requiring employees to take annual leave and have JobKeeper payments assist in the cost of such leave.

[57] The test is not, however, whether VRTP has acted reasonably or unreasonably; it is whether Ms McCreedy has unreasonably refused the request of VRTP.

[58] In all the circumstances, and noting that Ms McCreedy anticipates requiring only four days’ annual leave for her proposed holidays in September and October 2020, I consider that her refusal of VRTP’s request is unreasonable. I have had regard to Ms McCreedy’s medical condition in coming to that decision, and do not consider that her medical condition is a serious medical condition, warranting the requirement of a balance of paid annual leave to her above a minimum of two weeks’ leave.

[59] I note VRTP’s submissions on this issue and its consideration of an employee’s annual leave balance where the employee has breast cancer. I anticipate that if an employee had a serious medical condition requiring future surgery, or some further time off work to be treated for the medical condition, and there was the likelihood of the employee exhausting paid personal leave entitlements, it would factor into a consideration as to whether an employee’s refusal to take annual leave is unreasonable. These factors are not in play in the application before the Commission.

[60] As for Ms McCreedy’s future planned holidays in November 2020, March 2021 and mid-2021, Ms McCreedy has available to her the options of requesting leave in advance or long service leave, or the small amount of annual leave balance that she will have available to her at those relevant times. She will not be without any access to paid leave; it is simply her very strong preference that she be allowed to take paid annual leave from her balance as it exists today, or for her balance to be an amount greater than four days.

[61] I do find that Ms McCreedy has unreasonably refused VRTP’s request. I find that her reasons for her refusal lack justification in fact or circumstance. She has had little to no regard to VRTP’s, in my view, reasonable request to relevant employees to assist in reducing VRTP’s annual leave liabilities during a time when it is unable to operate its business for what is now, approximately 7.5 weeks, and into the short-term future. I consider that Ms McCreedy’s rejection of the request has been excessive, and disappointingly vitriolic, when regard is had to the fact that she has paid for some of the proposed holidays without first obtaining formal approval from VRTP. If she had, her holidays would be guaranteed. It is extraordinary unfair to have her sights set on a lengthy holiday in mid-2021 to be enjoyed largely with paid annual leave, where she could still enjoy such a lengthy holiday in the event long service leave is requested and approved. Her reliance on this particular holiday in mid-2021 is set against the annual leave policy informing employees that leave can only be requested within 12 months.

[62] I appreciate Ms McCreedy’s disappointment with her likely annual leave balance being reduced to four days if VRTP continues to request employees take annual leave until their balance is at two weeks’ leave. It is available to VRTP to decide for how long it needs to make requests of eligible employees in light of the stinging criticism I have been privy to on its closed employee Facebook page, monitored by and participated in by VRTP management. The damage to the relationship with some of its employees opposed to VRTP’s request to relevant employees is for VRTP to consider and manage.

[63] For the sake of clarity, in determining that Ms McCreedy has unreasonably refused the request by VRTP to take annual leave, I have not had regard to the benefit to Ms McCreedy of the top-up payment to her of approximately $375 per week on account of the JobKeeper payment of $750 per week payment to her. While I have referenced in earlier in my decision, it did not factor in my decision-making as I do not consider it to be a relevant consideration.

Conclusion

[64] Having regard to all of the circumstances, I find Ms McCreedy’s refusal of the request by VRTP to take one day’s annual leave per week is unreasonable.

[65] I have determined that it is appropriate in all of the circumstances to order that she not continue to refuse the request made by VRTP.

[66] The order will come into effect from today’s date and end at 11:59:59pm on 27 September 2020.

COMMISSIONER

Appearances:

McCreedy L, Applicant.

Vitale P, Solicitor for the Respondent.
Duran E, Group General Manager Human Resources of the Respondent.

Hearing details:

11 May 2020, Brisbane.

Printed by authority of the Commonwealth Government Printer

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 1   JobKeeper enabling direction means a direction authorised by 2 section 789GDC, 789GE or 789GF.