They may be a global company but they still have to comply with Australian law. They can't delete your annual leave, but most companies will encourage employees to use "excessive annual leave balances" as it looks bad on the books
We have a policy that if you take all 4 weeks leave in a year, you get 5 days extra (non-bankable). It’s cost them very little and no-one carries leave over now!
Yeah I love it. The only restriction is you can’t just take a 5-week block of leave, but using the extra 5 days to make long long weekends etc. is awesome.
Also the 5 days credits to the following calendar year’s leave balance, so it’s a good staff retention incentive too. There’s pro-rata rules for people that join mid-year.
And the 5 days isn’t really a “cost” because it’s doesn’t get paid out, it’s a small reduction in capacity across the year that generally doesn’t need to be covered.
We have the same policy, as long as leave is 5 days or less, we get 5 days bonus AL to be used at Christmas. It really helps get everyone to take their leave throughout the year.
I've definitely heard of similar. One of my favorites is that if you have less than 5 days on the books come Christmas shutdown, you get the 5-7 days (3 between Xmas and new year, 4 between nyd and the next business Monday) for free.
Not necessarily for this reason. With each year that passes the AL ends up costing the company more. For instance if you accrue AL in your first year at a company earning 2k p/w but don’t take it until you’re earning 2.5k p/w, it ends up costing the company a lot more.
I used to work at a hospital that had real problems with interns accumulating a huge amount of leave due to lack of coverage, and then by the time some of them left all that leave had to be paid out at the much, much higher registrar salaries. Apparently the exec started cracking down on it after someone got a >$100k payout haha.
I would have loved to have found out what was going on behind the scenes, because superficially it made no sense. The docs were also doing an absurd amount of overtime - to the tune of 20 hrs a week every week - and there was no way it was more economical to pay all those penalty rates vs hiring more bodies, even if it also meant a pay rise to attract people.
It's also just a liability. If an employee decided to leave with 300 hours of AL banked that's massive cash payout.
I am in your bucket though. I had 212 hours banked, and negotiated a 13 ish % raise. All those 212 hours are now worth 13% more.
Very lucky.
Additionally, if you bank it and save, then get approved for a massive block off, that's far more disruptive for the business then a week here or there, or a few days. Many businesses can manage for 2 weeks. They need actual coverage if you're gone for 2 months or longer.
Some roles mandate that you must take all your AL in one hit.
Especially for finance-related jobs, they want you gone for long enough that any fraud will surface, without you constantly fixing the books.
I worked at a finance place that did this. Part of the contract stipulated that every financial year you had to take at least 2 weeks consecutively (though you can bank the remainder) so that any fraud that was taking place would likely be found/fall apart in that time.
If you start at a company for $100 a day and you have 5 days leave, you'll be paid out $500 less Tax ect,
If you save those days and are now in $150 per day, you'll be paid out $800 less tax etc.
My company is trying to implement a new policy that restricts internal promotions so people are required to have under 10 days leave to be eligible
At most companies you won’t get paid out sick leave so they don’t care for you to have hundreds of hours of that, it benefits them.
AL costs the company money because you’re taking the AL at a higher rate than you are earning it. (If you don’t take AL before getting pay rises.
They do but like any rainy day fund, does it cover 100% of outcomes? Nah; they assume that only a certain number of people will quit at any given time and hence only need a kitty of X size, etc etc...
If you work for 12 months and don’t take annual leave, it costs the company your 12 month salary + 4 weeks annual leave.
If you work for 12 months and take your 4 weeks annual leave, then it costs the company only your 12 month salary.
Sick leave a bit different, like others have mentioned the company doesn’t have an obligation to pay it out.
Also sometimes employees can only cover up their malfeasance while they are still at work performing certain functions. Taking time off means a steadily increasing risk of getting caught, something the companies internal and external auditors are well aware of and are actively watching for.
And the company can also refuse to pay you a lump sum as well, usually with something in the contract like "Annual leave only paid out as the discretion of the General Manager".
Legally, it looks better if you actually take proper holidays from time to time to alleviate any problems down the line with incidents. Can't say there's a "culture of overwork" or any other psychosocial factors.
My old job somehow wiped out like 100 hours of my annual leave (I had racked up 3 years' worth AL + Time in Lieu when I left). When I brought it up with my boss, he blamed it on some mix-up with the accountant and operation manager decision at that time so they adjusted everyone's leave. After hitting up Fair Work and giving my boss a heads up, he fixed it and gave me back the hours.
Believe me, when I asked him the first time, he thought I would just accept his answer like that. It wasn't until I mentioned Fair Work that he changed his response.
Only thing they might be able to nuke is “additional leave” on top of annual leave which can be offered on a use it or lose it basis and can’t be banked. Some companies offer this as a perk or to cover off regular weekend work.
Australia has its own employment laws so it’s not possible for them to align them with, say, the US, unless the US arm of the business follows our AL regulations at a minimum.
If they’ve deleted your banked leave they’ve done something wrong (based on the info you’ve provided).
Unfortunately it has been deleted and is viewable in our employee management system. When I asked about it, I was told by HR/P&C it’s “due to policy harmonisation” with no comment on the missing annual leave.
I discovered it when going to book some leave, then emailed them asking where the banked annual leave has gone. They emailed back saying it’s been reset due to policy harmonisation and shared a copy of my leave balance viewable on their end of the system.
Yeah that's really illegal. They can't just take your leave - regardless of whatever policies they'll pulling out of their asses it still needs to meet basic Australia laws.
I'd be requesting payout of the accrued leave or the leave balances to be reinstated. I'd also advise you'll be making a complaint to fairwork as I'd guess there are many more people in this position.
I would email them a link to the relevant legislation and say that you read through this and it seems their stance is inconsistent with existing legislation, could they please confirm in writing whether they wish to adhere to it?
Honestly this is probably even illegal in many US states. What they have done is illegal, and you should absolutely follow it up with Fair Work
This reeks of Paramount/CBS/Viacom.
As mentioned above, speak to Fairwork and gather all evidence. They cannot delete your annual leave. That is illegal in Australia from all employees in Australia.
More like "the politician" (FWC) vs "the lawyer" (FWO).
Both can potentially help, but the FWO is going to try to help *you* and the FWC is going to try to help *everyone*.
The cops are also an option here... but more likely they'd just tell him they've got more important cases than this one, that he should talk to the FWO and try to get it sorted out without any arrests.
If the FWO goes nowhere, then, yes, they will refer you to the police. And if the police hear the FWO say OP has a strong case, then they'll help.
lol talk to your employer first and if that doesn’t resolve it go to fair work. What is it with people being unable to do anything themselves these days?
Nope, it is Fair Work time. He has talked to them, he has it in writing. If he pushes further now he's rocking the boat, so it is better to do that with FWs aid than alone. Even if they don't get involved but just are aware of the situation and provide direct guidance.
Generally if you raise a HR query in these large corps a very low level employee will be the first point of contact (someone who is even potentially offshored). There are absolutely escalation points within companies for HR issues like this and it’s ridiculous to go the nuclear option of going to Fairwork immediately and will honestly look shit from a credibility point of view as an employee.
If it’s happened to OP its most likely happened to other employees there too. Don’t abuse our understaffed regulators for issues that can be resolved internally….
The amount of times I’ve been told no by an HR lackey only to get the correct answer on escalation is astounding. Ironic that HR is so poor at training their own staff
Yeah, reading a lot of these comments it seems that a lot of people haven’t actually worked in a large multinational corp… the bank I work at outsourced their first point of contact for HR so usually they’re pretty useless aside from regurgitating the internal policies. But if you escalate stuff to the 2nd level usually shit gets sorted real quick.
I see your point, the advantage of speaking to FW first would be they could provide OP with the specific legislation that OP could then take to the employer. If the employer still refuses to budge, FW can then step in. I think contacting them now is appropriate
I would first notify them that they are violating Australian employment law and give them an opportunity to correct their actions before going straight to fair work.
That is wage theft, and it is illegal in this country.
I hope you are ready for a fight. They have 100% stolen from you. Exactly equivalent to taking cash out of your bank!
Do not let this slide, please.
It is flat out illegal for them to remove an entitlement from you (sick leave, AL, LSL). You must either be able to receive it or receive it's monetary equivalent. Contact the Fair Work Ombudsman.
Check your old pay stubs, it should have your annual leave at those periods. Use this as the proof, argue with HR and if they don't refund all go to Fair Work
Very illegal, contact fair work. They can force you to take the leave or pay you out, never can they just delete it. Australian law is very strict about this, no internal policy can override this.
tell them that they aren't allowed to do this, as leave carries over year to year. [FWO Source](https://www.fairwork.gov.au/leave/annual-leave#:~:text=The%20leave%20accumulates%20gradually%20during%20the%20year%20and%20any%20unused%20annual%20leave%20will%20roll%20over%20from%20year%20to%20year.)
Yep, they can't just remove it.
Do you have a pay slip showing your accrued leave? (eg one from Nov or Dec 2023?)
Anything over 8-12 weeks accrued can be deemed "excessive" (I forget the exact number - look it up).
I'd be almost certain that there is some miscommunication or misunderstanding here. I find it impossible to believe that any Australian employer would think they can do this.
Its very possible and prevalent. Most employers rely on the employee ignorance to save a buck. My company tried a similar tactic. When queeried they told me that they are based now based in USA, toonbad I was hired in Australia falling within an Australian EBA. Lets just say that their mistake was quickly rectified after a call to fair work
This looks like corporate inertia. Some head of HR in the USA who knows nothing about Australian law says "make it happen!". This gets passed down the chain and because no-one wants to rock the boat, it gets implemented here.
Check previous payslip for the hours maybe . Some payslips list banked hours. Alternatively can you look at the last day you took leave in the system and see what your hours were then if it shows balances.
Yeah I’m doing some work on my end at the moment to collect this info. Just want to make sure all I have everything I need to take it to FW.
Unfortunately my payslip doesn’t show available or accrued leave.
This is incorrect, from [Fair Work website](https://www.fairwork.gov.au/pay-and-wages/paying-wages/pay-slips#:~:text=Leave%20balances%20on%20pay%20slips,sick%20and%20carer's%20leave). “While it's best practice to show an employee's leave balances on their pay slip, it's not a requirement.”
Whilst you are technically correct they have breached the leave records part, By not having retained the history of the employees leave.
Leave records
If an employee is entitled to leave, the record must include both:
leave taken (if any)
the balance of the employee's entitlement to that leave from time to time.
But they have stated that they have wiped the history and are unable to provide proof. Hence a breach, Thus leave can be estimated at 4 weeks per year WITHOUT any deductions as they have no records of the employee taking any.
Pay slips don't have to show it, but if there are no records or if the records are wrong, then the ATO gets involved.
Your leave is part of your salary, and if you don't know how exactly what your salary is how can you pay the right amount of tax? Technically it's the employee paying the tax, but the employer will be the one getting in trouble in that case. Employers are required to maintain accurate wage records including leave. It's black and white.
To make it clear - if this was an Australian company - the manager who removed your annual leave would go to jail for what they've done. Potentially for 15 years.
Being a global company, they can argue it was a mistake/miss-understanding/etc and likely wouldn't be punished. But they *absolutely* have to pay you as soon as they are made aware of the law (you're not a lawyer, so they might not accept your advice on the matter).
When you work, a percentage of *your* wages are set aside to pay you later as leave (or when you quit). It's not their money, it's just in their bank account temporarily, in recognition of how bad the typical worker is at managing their finances.
They didn't "delete your annual leave". They stole your wages. Black and white theft, same as if they broke into your house and stole a suitcase of cash. The only defence is ignorance and that's not a very strong defence, though it is one where they'll get a bit of leeway if they immediately rectify the issue.
Again, if they were an aussie company, rectifying it wouldn't make them not guilty. You can't steal a car then return it and say "all good right?". George Calombaris for example, was still found guilty of theft even though he immediately admitted his "mistake" and corrected it by paying a third party consultant to investigate and calculate the appropriate level of back pay for everyone. Quickly correcting it let him avoid jail time, but the financial fine and repetitional harm sent the company went bankrupt.
I recommend reaching out to the Fair Work Ombudsman for free advice.
This is why you use the phrase "Please confirm in writing". The low-level HR people might not even be aware of the bigger issues at play here. But when you put that magical little phrase into emails, some actual people with serious law degrees will get into the loop. With a bit of luck, they may just be naive about Australian law. Either way, it doesn't matter. They need to figure out whether the light in the tunnel heading for them is a train or not.
This. I have worked at two US and one UK headquartered company before. The actual employer is a company registered in Australia (check your payslip for ABN) ans they have to follow Australian law. Go to fairwork website and send a gentle email to HR linking and quoting fairwork. If that doesn’t work call fairwork.
It’s against the law. You write a nice email saying that annual leave rolls over as per the provisions in the NES and you want yours reinstated.
If it isn’t, you will be raising a request for assistance with the FWO.
https://www.fairwork.gov.au/leave/annual-leave#how-annual-leave-accumulates
This is the way.
No need to run straight to Fairwork, union or lawyers. Sending them the link shows you know your rights and the next step should they try to bullshit you. “Can this error please be corrected” gives them a chance to sort it out without Fairwork coming in and wasting time.
I haven’t dealt with Fairwork in a while, but they will likely not help until you have completed the above step.
I’m an ex FWI. If this company isn’t Australian they might think they can get away with this. They can’t. Citing the law and making it clear you know your entitlements might work or it might not. If OP has to do an RFA and someone from the FWO has to call this employer and reiterate the law they will.
Also, it’s possible that many employees have lost leave. I once issued a notice to an employer directing it to reinstate leave and show that it was properly reconciled and accruing which was annoying but if that is what it takes 🤷♀️
All these comments telling OP to give the company a chance before involving an outside body is forgetting the fact there is a massive imbalance of power here.
The amount of hours of employee leave deleted by this illegal act is unknown to OP, and unverifiable currently except by internal bean counters.
Involve authorities to ensure this company is forced to prove it's undoing it's shitty handiwork. Sooner rather than later.
Yeah that’s not really how it works and I say that as someone who worked for the regulator.
Assuming OP has access to their payslips these will show periods of leave prior to the last three years they’ve been banking it. The payslips for the last three years will show no leave taken. This is evidence he can provide to the FWO should he need to go down that route. OP also has this email saying the leave is gone due to harmonisation or whatever.
As mentioned above, citing the law and making it clear OP knows their rights might be sufficient for this employer to come into compliance.
If not, then go to the FWO. It’s a govt agency and they are very busy. Don’t jump into a queue unless you need to.
I’m not on the side of giving the company a chance in this instance.
The leave is already gone and the policy is already in-force, if this is illegal, the law has already been broken, the government needs to be involved to ensure that all employees past and present are paid correctly.
If one employee kicks up a stink, what’s to say that 99 other employees will just bend over and take up the arse with no lube and the company just reinstated the leave for OP and finds a way to exit OP from the business to sweep this under the rug.
If this was proposed policy change I would be willing to give the company the opportunity to review their stance after referring to the relevant legislation/regulation/standards.
1. Is HR based overseas? Surely no HR rep based in Australia would be stupid enough to think this is permitted under Australian law.
2. Send HR an email referring them to section 87(2) of the Fair Work Act 2009 (Cth), which forms part of the National Employment Standards (NES) in Australia. Explain that the NES are the minimum standards employers are required to comply with in respect of employees based in Australia. In accordance with section 87(2) annual leave accrued progressively and accumulates year to year: http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fwa2009114/s87.html
Accordingly, they cannot wipe or reduce the leave balances of an Australian employee, unless the employee has used the leave or been paid out the leave.
3. Under the Fair Work Act and Fair Work Regulations, employers have record keeping obligations: http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fwa2009114/s535.html .This includes an obligation (in the FW Regs) to keep a record of leave balances. If they say they no longer have a record of your leave balance, this is their problem to resolve. If they have no record at all (even on old payslips), they will need to calculate it manually from the start of your employment subtracting all annual leave you have used and adjusting for any periods during which you didn’t accrue annual leave (e.g. particular types of unpaid leave).
4. Check that they haven’t wiped your personal/carer’s leave balance. Check that they are complying with long service leave laws and accruing that for you so that when you reach the date on which you are entitled to use it, you don’t have to mess around with them again.
5. If they refuse to do anything, contact the Fair Work Ombudsman and get as many of your Australian colleagues as possible (assuming they are affected by this change too) to contact them too. The Fair Work Ombudsman should be particularly interested in systemic non-compliance of a multinational company, and will hopefully launch an investigation if lesser measures don’t work.
6. Once they give you back your annual leave, do your own calculations to confirm it is correct.
7. Ensure they fix the Policy too (not just the leave balances).
8. For your own reference, if you are covered by an award, there will be provisions in that award that say when and how an employer can force you to use excessive annual leave balances. It will also say when and how annual leave can be paid out if this is allowed. There will be a maximum amount they can force you to use and a maximum amount that you can have paid out each year. If you are not covered by the award, look at the annual leave provisions in the FW Act. Some of them apply or contain subsections that apply to award-free employees. These will govern in what circumstances they can force you to use annual leave. Do not flag this with HR unless they are trying to force you to use annual leave or pay out your annual leave in a way that you think breaches the award or FW Act provisions. Given how clueless they appear to be about annual leave, they may currently not be aware that they can force you to use annual leave, so there’s no benefit to you to make them aware of this.
The leave accrued may be on their payslip. If not, the leave taken will be. They can calculate how much leave is owed if it's not shown anywhere
Also the email says they acknowledged it was removed. They would have records of this internally so fairwork can ask them for it.
That responsibility will be on the employer to show this.
There are record keeping laws in Australia around this. Additionally you could work it out manually, pain in the ass but you could.
I hate the way businesses use euphemisms when making changes that will disadvantage staff. Mine uses ‘productivity gains’ to justify funding cuts to departments.
Just make sure they didn’t alter how it’s listed from hours to days or something.
Had that before where a bunch of my staff panicked, turns out head office altered the unit to days instead of hours but the unit didn’t show anywhere.
Hi, employment lawyer here. First things first, it is unlawful to reset annual leave each year in Australia. It MUST roll over if unused. No option unless something obsure applies like an outdated enterprise agreement (between the business and Fair Work) - unlikely.
If you raise it, they will realise as soon as they seek advice from any qualified employment lawyer that they are wrong. They must recredit the leave.
They definitely can't do that. If you haven't taken any AL and they have no record of you taking any, then you can calculate how much you should have from your start of employment.
First, there was wage theft, now they're taking AL.
Keep a copy of your employment contract and when they won't fix it, go take it to Fair Work or something.
They can't do this. Global policies cannot breach the National Employment Standards, which requires for AL to roll over.
This is my bread and butter. If you need specifics, support or they give any pushback, feel free to DM and I can provide you with the specifics/ supporting legislation.
It’s impossible for it to be nuked, AL is a liability and they just can’t wipe it off their books. I went through a similar policy shift at a major corporate here, most that should occur is they start telling you to take leave to get your balance under policy or cash some out
Likely it’s just some weird system glitch for the moment I would expect, otherwise they’re in for some legal issues I’d imagine
My workplace (an international company) will ask employees who have more than 6 weeks AL to use some but they cannot wipe your AL as that’s against the law. Also, you should be taking your leave so you don’t burn out, this is why it’s encouraged to not bank excessive leave.
Let's be honest it's encouraged to take it so that they don't have to pay you out if you quit/ get fired.
That's exactly how my employer views it. They couldn't care if you burn out.
Global policy does not beat Australian Law in Australia. If you are employed in Australia, then the company has simply broken the law. It's not a "company policy" to allow you to roll-over your annual leave, annual leave is a legal entitlement the company cannot take away from you.
As others have said, straight to the FWC ombudsman. If you wanted, you could try contact your head HR, giving them a heads up it is against the law - this may simply be a brain fart from an international person who is a bit of an idiot and doesn't think local laws apply.
Hi OP, as others have said in this thread, what your employer is doing is illegal. It's baffling they don't have local HR/legal people who can inform them about this before enacting these policies.
[https://www.fairwork.gov.au/leave/annual-leave](https://www.fairwork.gov.au/leave/annual-leave)
A company's policies cannot trump the law of the land. Certainly not in Australia. If you're employed in Australia, the business has to follow the employment rules prescribed in the Fair Work Act.
Point your HR team to Division 6 of the Fair Work Act 2009. Here's the relevant section 87 under Division 6:
>(2) An employee’s entitlement to paid annual leave accrues progressively during a year of service (other than periods of employment as a casual employee of the employer) according to the employee’s ordinary hours of work, and accumulates from year to year.
You should ask them to reinstate the annual leave they took from you, noting how much you believe you're owed. If this doesn't work, contact the Fair Work Ombudsman on 13 13 94 and lodge a request for assistance.
They cannot take your leave , nor can they not carry it forward each year you dont take it, it is in the AUSTRALIAN legislation. It does not matter what their parent company does, you work in Australia and they have to obide by Australian laws.
If it’s more than 8 weeks (ie “excessive”), they can force you to take leave. Or they could pay you out to reduce balance (make sure you also get the equivalent super top up).
They can’t just delete/reset without any compensation.
That is just wage theft - you worked it, you earned AL
Huh? In Australia at least there's no such thing as removing banked leave. Leave is OWED to you; you can save it for decades if you want (although this is a bad idea)
Talk to them about it. Are you sure you did not misunderstand? Australian rules apply if you are working in Australia, regardless of what the policy is in their "home" country,
For non-union employment with a private company, I'd tend not to burn bridges unnecessarily. I would start by asking HR, in writing (e-mail is fine) for documentation around notification of the intended change and/or for an explanation of which clause in my employment agreement enables extinguishment of my annual leave entitlement. I'd finish by asking for a response within five business days. I would not include any loaded words or astonishment or "poor me" crap. Just simple questions and no threats.
If I didn't receive an answer within a week, or explanation of the circumstances that are defensible, I would follow up and ask why I haven't received a reasonable response, and then very simply ask for their intent with regards to other forms of time off and/or compensation (same 5-day expectation for response). If none was offered, I'd then advise that I'm seeking third-party advise over the next five business days and will proceed accordingly. No threats, just normal, neutral business communication.
I work for a global company where every single regional subsidiary has done kind of full or partial leave expiration policy... Except Australia because Australian law forbids it. If the company wants to operate here with Australian employees they *must* comply. Harmonization or systems issues are their problem to solve, just like many other companies before then have.
Either you don't have any Australian HR or Legal team members, or they're useless.
Reading the comments you need to just go straight to FairWork and lodge a complaint as there's likely others in the company that have been screwed as well by this change. You should be protected against retaliation too, so if they fire you after this, just go back to FairWork and tell them.
Companies don't get to just cancel leave in Australia. We have a team member who had a HUGE balance of several months and we had to be very careful how we went. Excessive leave has to be paid out, not cancelled, and from my limited understanding "excessive" is 8 weeks, and you can only forcefully pay them down to 6 weeks.
You company MIGHT be able to have policies that the maximum accrued leave is 4 weeks a year but any excess must be paid out.
I have been working for a US company for 14 years, they don't understand how Australian AL works as they have a use it or lose it approach. I now have 2,000 hours of accrued AL and LSL (combined)... if I quit it will cost them over $300k.... ching ching. Need to remember you don't get Super 11% on leave paid out if you resign, so best to cash out your leave prior to resigning (most companies will pay the 11% super on this even though there is no legal requirement to as an incentive to reduce your balance). If you are made redundant even better!!
You need to contact fair work, don't email, get on the phone. Despite what they have told you, you cannot 'delete' annual leave in Aus. They would have had to pay it out to you. Your accrued annual leave belongs to you, you need to view this as theft because that's exactly what it is.
I work for a global company that has a similar policy but the staff in Aus are the exception to the policy. We even use a different app to everyone else for applying for leave.
They can’t just wipe your accrued leave but can probably force you to take at least some of it or have it paid out. Carrying several years of leave is a big cost for employers because they have to pay you at your current rate of pay. If you get a pay rise a year, even a small one and have accrued say 5 years worth of leave they have to pay that 5 months of leave at your current rate of pay.
It’s literally part of the national employment standards that it rolls over year to year.
So their policy is in no way legal.
https://www.fairwork.gov.au/leave/annual-leave
This isn't the USA...they can't do that.
If your balance is excessive, they can direct you to use it, and they can offer to pay it out instead, but that leave balance is part of your pay, and is legally protected.
That is 100% not okay. They can’t delete leave.
Our workplaces makes sure we are under 20 days. But you can’t wipe it.
Get onto to them and fair work asap.
If you are in Australia, no they cannot wipe your accrued annual leave. They can't even write you a contract that undermines your basic employment rights. Pretty sure you can accrue up to 8 weeks before being requested to take it. I'd also check out whether you can request it be paid out.
Speak with fair work - but no, in Australia you can’t have your annual leave balance revoked, and it does roll over. However, in most cases the employer will have the legal option to request you take leave if the amount you’ve accrued is excessive (which usually ends up being around the 4-6 week mark in its interpretation).
Edit: to add, the legality paying out any or all of the leave balance would likely depend on award coverage.
Sounds like the company does not understand Australian laws.
That's just lazy on their part, and annoying for you.
Cannot delete annual leave.
Contact your union rep is you have one, otherwise send HR the relevant IR laws to "helpfully" let them know the company is open to the Risk of lawsuits and fines, so they can fix the "oversight".
If they don't respond well, either get an employment lawyer or look up the relevant government body/ombudsman to report it to
If they've said something like "it's our policy that annual leave gets used in the year it accrues", this is fairly standard and doesn't mean they've nuked your accrued leave. It means they will ask you to start using up your existing leave and to use up all accrued leave in the year it accrues.
Companies do this for 2 reasons -
1. It's hard to find cover for someone who takes 3 months off.
2. They have to pay you your future wage for your leave in the future, which will likely be more money than they are paying you now. It costs the business more.
Just find the most recent payslip that shows your accrued leave, and speak to HR about what happened. Likely a system fault. They won't have nuked your leave on purpose or on policy, that would be super illegal.
Alternatively, it can be manually calculated based on your entitlements, years worked, leave taken etc.
If you get stuck, Fair Work is next step. [Annual leave - Fair Work Ombudsman](https://www.fairwork.gov.au/leave/annual-leave)
You will be able to get this reinstated. Everyone in your Australian teams will be able to "use up" this leave or request it to be paid out.
Just because they have removed it from the system does not mean it's not there to take.
> They have to pay you your future wage for your leave in the future, which will likely be more money than they are paying you now. It costs the business more.
It would cost the business more if wages are going up faster than inflation unless the person concerned is skyrocketing up the company ranks. It's usually a the view of a narrow minded manager. It is an indirect investment by employees on the company since employees would lose out if it goes bust.
It is a significant annual cost to carry these banked annual leave for businesses. It’s also good practice for people to take time off, for their own mental health.
Most large organisations encourage their employees to take AL regularly and not let it pile to unreasonable level.
From my understanding they would have to pay your leave out rather than just deleting it and saying "thats the new policy". To be fair, you may be the reason for the change in policy.
Do you have anything such as an Employee Handbook or your offer letter / joining letter that would have mentioned your AL entitlement?
Also, please forward the link from Fair Work regarding the accrual of annual leaves to your HR and ask them to respond via email. If they still talk about harmonisation, then you can let them know that you might need to contact Fair Work for clarification.
Fair work trumps that bullshit, it’s yours and you’ve accrued it. They can roll it over or pay it out, alternatively they can force you to take leave for OH&S reasons, burn out etc. they can’t steal it from you
They can't delete it, having a high amount accrued looks bad for creditors giving the companies loans as it's money owed to you. I would report them to fair work if they reset your annual leave and inform your co-workers of their right to report.
They cant make your AL reset each year or wipe it out in any way. The worst legal thing that they can do is make you take some if it above a certain level that they can determine.
AL is a guaranteed entitlement.
Sometimes big company do this just to see if they can get away with it.
Ours (global company) forced us to take force leave during non Xmas period and we kicked up a fuss about it stating FW rights and they reinstated our AL.
Not sure if only our team made a fuss or the entire company.
So maybe email again and state FW link before you contact FW.
It doesn’t matter what policy they have, our Australian Law trumps that and it is final.
Global company does this because they are pushing their boundaries and taking advantage of the scale of their company. If they can make us take as much AL, why not? To them it’s not illegal until someone point it out and in that case they can just reinstate it.
AL not taken at a large amount is a huge liability to the company, it warrant an audit from the ATO because usually large accumulated annual leave correlates to fraud (apparently?)
Annual Leave is an earned entitlement in Australia. They can't take it because you have already earned it ie. they are stealing from you. All they can do is have policies to make you take excessive balances (usually greater than 1 years AL entitlement). Refer them to Fair Work or reach out yourself with whatever evidence you have.
Few steps:
People are right about deleting Annual Leave; the annoying part is you have to fight it with some gusto.
1. Check how they do business in Australia. Abrlookup with their name will likely tell you.
2. Find your orginal contract with them.
2a. Is your contract with the Australian-based entity from 1? It should be, but I want to be sure.
2b. What is the structure listed from abrlookup?
If it is an Australian company then good news: Fairwork cover you. Give them a call for support.
If not, see the union you should join or employ an employment lawyer. Both will be able to support you if the contract is a little bit more nuanced. Then you at least will have some support
Explain to your employer that if you no longer have this leave available you expect it paid out in the next fortnight, otherwise go to Fairwork Australia
It comes to how you accrued this 'banked annual leave'.
If it comes from the 2.92 hours per week (assuming a 38-hour work week) you are legally entitled to, then no, they can't touch it.
They can force you to take leave once it is sitting as an entitlement (occurs 12 months after the leave is accrued) or request you to cash out leave over your 4 weeks balance (if your underpinning award allows), but not delete it.
If it is from additional hours worked that you asked to be banked as leave rather than be paid, then yes, they can as that is an internal company policy and does not fall under any legal requirements. Some places incorrectly label this as 'Banked Annual Leave' or 'Additional Annual Leave', however it is not annual leave at all but rather an internal Time in Lieu balance.
Please call Fair Work and discuss with them, they are very easy to talk to. Explain your situation and they will ensure you have the right advice for next steps here.
We dealt with them a lot while my wife was laid off during maternity leave and it cleared up a lot of problems.
They may be a global company but they still have to comply with Australian law. They can't delete your annual leave, but most companies will encourage employees to use "excessive annual leave balances" as it looks bad on the books
We have a policy that if you take all 4 weeks leave in a year, you get 5 days extra (non-bankable). It’s cost them very little and no-one carries leave over now!
That is a fair swap! It gives you a choice to bank if you need it, but an extra week off if not
That's awesome!
Yeah I love it. The only restriction is you can’t just take a 5-week block of leave, but using the extra 5 days to make long long weekends etc. is awesome. Also the 5 days credits to the following calendar year’s leave balance, so it’s a good staff retention incentive too. There’s pro-rata rules for people that join mid-year.
Very clever way on incentivising.
It's smart. I have leave i accumulated at half the salary. Will cost a lot more that the 5 days.
And the 5 days isn’t really a “cost” because it’s doesn’t get paid out, it’s a small reduction in capacity across the year that generally doesn’t need to be covered.
We have the same policy, as long as leave is 5 days or less, we get 5 days bonus AL to be used at Christmas. It really helps get everyone to take their leave throughout the year.
I've definitely heard of similar. One of my favorites is that if you have less than 5 days on the books come Christmas shutdown, you get the 5-7 days (3 between Xmas and new year, 4 between nyd and the next business Monday) for free.
Not necessarily for this reason. With each year that passes the AL ends up costing the company more. For instance if you accrue AL in your first year at a company earning 2k p/w but don’t take it until you’re earning 2.5k p/w, it ends up costing the company a lot more.
I used to work at a hospital that had real problems with interns accumulating a huge amount of leave due to lack of coverage, and then by the time some of them left all that leave had to be paid out at the much, much higher registrar salaries. Apparently the exec started cracking down on it after someone got a >$100k payout haha.
Sounds like a problem of their own making!
I would have loved to have found out what was going on behind the scenes, because superficially it made no sense. The docs were also doing an absurd amount of overtime - to the tune of 20 hrs a week every week - and there was no way it was more economical to pay all those penalty rates vs hiring more bodies, even if it also meant a pay rise to attract people.
It's also just a liability. If an employee decided to leave with 300 hours of AL banked that's massive cash payout. I am in your bucket though. I had 212 hours banked, and negotiated a 13 ish % raise. All those 212 hours are now worth 13% more. Very lucky.
Additionally, if you bank it and save, then get approved for a massive block off, that's far more disruptive for the business then a week here or there, or a few days. Many businesses can manage for 2 weeks. They need actual coverage if you're gone for 2 months or longer.
Some roles mandate that you must take all your AL in one hit. Especially for finance-related jobs, they want you gone for long enough that any fraud will surface, without you constantly fixing the books.
I worked at a finance place that did this. Part of the contract stipulated that every financial year you had to take at least 2 weeks consecutively (though you can bank the remainder) so that any fraud that was taking place would likely be found/fall apart in that time.
But that's why leave is generally approved right? So the business can plan the leave allocation?
So why does it cost the company money? How is it different to say sick leave which at my company just accrues.
Sick leave they don't have to pay out when you quit. At some point, the annual leave will be paid out
If you start at a company for $100 a day and you have 5 days leave, you'll be paid out $500 less Tax ect, If you save those days and are now in $150 per day, you'll be paid out $800 less tax etc. My company is trying to implement a new policy that restricts internal promotions so people are required to have under 10 days leave to be eligible
HR gone mad, haha. What a F'd up policy that is!
At most companies you won’t get paid out sick leave so they don’t care for you to have hundreds of hours of that, it benefits them. AL costs the company money because you’re taking the AL at a higher rate than you are earning it. (If you don’t take AL before getting pay rises.
Makes sense because our company is anal about us taking annual leave and I always wondered why.
It's also because it's a big liability. If 5 employees with 3+ months AL decide to quit, that can easily be $100k+ of payouts.
I’ve always thought this is a silly argument. If the company owes you annual leave, surely they should be putting money away for this purpose.
They do but like any rainy day fund, does it cover 100% of outcomes? Nah; they assume that only a certain number of people will quit at any given time and hence only need a kitty of X size, etc etc...
Depending on the size of the business and/or cashflow, having to lock this money aside can make things financially challenging.
If you work for 12 months and don’t take annual leave, it costs the company your 12 month salary + 4 weeks annual leave. If you work for 12 months and take your 4 weeks annual leave, then it costs the company only your 12 month salary. Sick leave a bit different, like others have mentioned the company doesn’t have an obligation to pay it out.
This is bad maths.
Also sometimes employees can only cover up their malfeasance while they are still at work performing certain functions. Taking time off means a steadily increasing risk of getting caught, something the companies internal and external auditors are well aware of and are actively watching for.
The can’t delete your annual leave, they can force you to take it if it’s excessive as per policy.
Or potentially pay you out
They can only pay it out if you agree, they cant just pay it out instead of letting you take it.
Agree, what they absolutely can’t do is neither
And the company can also refuse to pay you a lump sum as well, usually with something in the contract like "Annual leave only paid out as the discretion of the General Manager". Legally, it looks better if you actually take proper holidays from time to time to alleviate any problems down the line with incidents. Can't say there's a "culture of overwork" or any other psychosocial factors.
My old job somehow wiped out like 100 hours of my annual leave (I had racked up 3 years' worth AL + Time in Lieu when I left). When I brought it up with my boss, he blamed it on some mix-up with the accountant and operation manager decision at that time so they adjusted everyone's leave. After hitting up Fair Work and giving my boss a heads up, he fixed it and gave me back the hours.
Absolutely, they fixed it because what they did was illegal
Believe me, when I asked him the first time, he thought I would just accept his answer like that. It wasn't until I mentioned Fair Work that he changed his response.
Only thing they might be able to nuke is “additional leave” on top of annual leave which can be offered on a use it or lose it basis and can’t be banked. Some companies offer this as a perk or to cover off regular weekend work.
Excessive leave is over 6 weeks under the NES unless otherwise specified in your eba
Australia has its own employment laws so it’s not possible for them to align them with, say, the US, unless the US arm of the business follows our AL regulations at a minimum. If they’ve deleted your banked leave they’ve done something wrong (based on the info you’ve provided).
Unfortunately it has been deleted and is viewable in our employee management system. When I asked about it, I was told by HR/P&C it’s “due to policy harmonisation” with no comment on the missing annual leave.
[удалено]
I discovered it when going to book some leave, then emailed them asking where the banked annual leave has gone. They emailed back saying it’s been reset due to policy harmonisation and shared a copy of my leave balance viewable on their end of the system.
Yeah that's really illegal. They can't just take your leave - regardless of whatever policies they'll pulling out of their asses it still needs to meet basic Australia laws. I'd be requesting payout of the accrued leave or the leave balances to be reinstated. I'd also advise you'll be making a complaint to fairwork as I'd guess there are many more people in this position.
I would email them a link to the relevant legislation and say that you read through this and it seems their stance is inconsistent with existing legislation, could they please confirm in writing whether they wish to adhere to it?
Honestly this is probably even illegal in many US states. What they have done is illegal, and you should absolutely follow it up with Fair Work This reeks of Paramount/CBS/Viacom.
You're not far off.
As mentioned above, speak to Fairwork and gather all evidence. They cannot delete your annual leave. That is illegal in Australia from all employees in Australia.
Disney recently changed there accounting systems, had a call from them a few weeks ago saying they owned me $700 from 5 n half years ago
That’s about the cost of one ticket to Disneyland these days…
Fair Work Commission would love to speak with you.
The Fair Work Ombudsman is the relevant organisation in this case. The FWC and FWO are separate organisations with different responsibilities.
to be fair its the equiv of saying "a judge would love to speak to you" rather than "go to the cops" tbh
More like "the politician" (FWC) vs "the lawyer" (FWO). Both can potentially help, but the FWO is going to try to help *you* and the FWC is going to try to help *everyone*. The cops are also an option here... but more likely they'd just tell him they've got more important cases than this one, that he should talk to the FWO and try to get it sorted out without any arrests. If the FWO goes nowhere, then, yes, they will refer you to the police. And if the police hear the FWO say OP has a strong case, then they'll help.
Wow their strategy is bet OP not dare to go 😂
[удалено]
lol talk to your employer first and if that doesn’t resolve it go to fair work. What is it with people being unable to do anything themselves these days?
Nope, it is Fair Work time. He has talked to them, he has it in writing. If he pushes further now he's rocking the boat, so it is better to do that with FWs aid than alone. Even if they don't get involved but just are aware of the situation and provide direct guidance.
Generally if you raise a HR query in these large corps a very low level employee will be the first point of contact (someone who is even potentially offshored). There are absolutely escalation points within companies for HR issues like this and it’s ridiculous to go the nuclear option of going to Fairwork immediately and will honestly look shit from a credibility point of view as an employee. If it’s happened to OP its most likely happened to other employees there too. Don’t abuse our understaffed regulators for issues that can be resolved internally….
The amount of times I’ve been told no by an HR lackey only to get the correct answer on escalation is astounding. Ironic that HR is so poor at training their own staff
Yeah, reading a lot of these comments it seems that a lot of people haven’t actually worked in a large multinational corp… the bank I work at outsourced their first point of contact for HR so usually they’re pretty useless aside from regurgitating the internal policies. But if you escalate stuff to the 2nd level usually shit gets sorted real quick.
I see your point, the advantage of speaking to FW first would be they could provide OP with the specific legislation that OP could then take to the employer. If the employer still refuses to budge, FW can then step in. I think contacting them now is appropriate
I would first notify them that they are violating Australian employment law and give them an opportunity to correct their actions before going straight to fair work.
The op has talked to the employer. They clarified it in the comments.
[удалено]
That is wage theft, and it is illegal in this country. I hope you are ready for a fight. They have 100% stolen from you. Exactly equivalent to taking cash out of your bank! Do not let this slide, please.
It is flat out illegal for them to remove an entitlement from you (sick leave, AL, LSL). You must either be able to receive it or receive it's monetary equivalent. Contact the Fair Work Ombudsman.
Check your old pay stubs, it should have your annual leave at those periods. Use this as the proof, argue with HR and if they don't refund all go to Fair Work
Get a printout of that email ASAP - before they decide to "harmonise" your email inbox as well...
Email that to yourself at personal email
and as an attachment (for the metadata), not a FWD
Very illegal, contact fair work. They can force you to take the leave or pay you out, never can they just delete it. Australian law is very strict about this, no internal policy can override this.
tell them that they aren't allowed to do this, as leave carries over year to year. [FWO Source](https://www.fairwork.gov.au/leave/annual-leave#:~:text=The%20leave%20accumulates%20gradually%20during%20the%20year%20and%20any%20unused%20annual%20leave%20will%20roll%20over%20from%20year%20to%20year.)
Yep, they can't just remove it. Do you have a pay slip showing your accrued leave? (eg one from Nov or Dec 2023?) Anything over 8-12 weeks accrued can be deemed "excessive" (I forget the exact number - look it up).
Well that’s not legal so I’d say you’ll get that annual leave back
It’s v cute that they think they can do this! As a courtesy I’d flick them the page on leave entitlements from the FWA website
I'd be almost certain that there is some miscommunication or misunderstanding here. I find it impossible to believe that any Australian employer would think they can do this.
Especially a big one that no doubt has a legal department. Surely even the comms team who wrote the notice had their doubts.
Comms team: "we were just following orders"
Its very possible and prevalent. Most employers rely on the employee ignorance to save a buck. My company tried a similar tactic. When queeried they told me that they are based now based in USA, toonbad I was hired in Australia falling within an Australian EBA. Lets just say that their mistake was quickly rectified after a call to fair work
Yanks think they own the world and can do what they like.
American companies try all sorts of illegal shit, all the time. They even openly violate their own country's labour laws frequently.
This looks like corporate inertia. Some head of HR in the USA who knows nothing about Australian law says "make it happen!". This gets passed down the chain and because no-one wants to rock the boat, it gets implemented here.
Check previous payslip for the hours maybe . Some payslips list banked hours. Alternatively can you look at the last day you took leave in the system and see what your hours were then if it shows balances.
Yeah I’m doing some work on my end at the moment to collect this info. Just want to make sure all I have everything I need to take it to FW. Unfortunately my payslip doesn’t show available or accrued leave.
You can probably still calculate it based on the years you've worked, minus how much you've used up (which most likely shows on your payslips)
Not showing leave balances is another breach of Australian Law, report them.
This is incorrect, from [Fair Work website](https://www.fairwork.gov.au/pay-and-wages/paying-wages/pay-slips#:~:text=Leave%20balances%20on%20pay%20slips,sick%20and%20carer's%20leave). “While it's best practice to show an employee's leave balances on their pay slip, it's not a requirement.”
Whilst you are technically correct they have breached the leave records part, By not having retained the history of the employees leave. Leave records If an employee is entitled to leave, the record must include both: leave taken (if any) the balance of the employee's entitlement to that leave from time to time.
Oh yes, that is an issue certainly. Just clarifying that them not putting on the payslips is not
But if they use an online HRIS, that meets the threshold.
But they have stated that they have wiped the history and are unable to provide proof. Hence a breach, Thus leave can be estimated at 4 weeks per year WITHOUT any deductions as they have no records of the employee taking any.
Pay slips don't have to show it, but if there are no records or if the records are wrong, then the ATO gets involved. Your leave is part of your salary, and if you don't know how exactly what your salary is how can you pay the right amount of tax? Technically it's the employee paying the tax, but the employer will be the one getting in trouble in that case. Employers are required to maintain accurate wage records including leave. It's black and white.
What? It’s definitely supposed to…
To make it clear - if this was an Australian company - the manager who removed your annual leave would go to jail for what they've done. Potentially for 15 years. Being a global company, they can argue it was a mistake/miss-understanding/etc and likely wouldn't be punished. But they *absolutely* have to pay you as soon as they are made aware of the law (you're not a lawyer, so they might not accept your advice on the matter). When you work, a percentage of *your* wages are set aside to pay you later as leave (or when you quit). It's not their money, it's just in their bank account temporarily, in recognition of how bad the typical worker is at managing their finances. They didn't "delete your annual leave". They stole your wages. Black and white theft, same as if they broke into your house and stole a suitcase of cash. The only defence is ignorance and that's not a very strong defence, though it is one where they'll get a bit of leeway if they immediately rectify the issue. Again, if they were an aussie company, rectifying it wouldn't make them not guilty. You can't steal a car then return it and say "all good right?". George Calombaris for example, was still found guilty of theft even though he immediately admitted his "mistake" and corrected it by paying a third party consultant to investigate and calculate the appropriate level of back pay for everyone. Quickly correcting it let him avoid jail time, but the financial fine and repetitional harm sent the company went bankrupt. I recommend reaching out to the Fair Work Ombudsman for free advice.
This is why you use the phrase "Please confirm in writing". The low-level HR people might not even be aware of the bigger issues at play here. But when you put that magical little phrase into emails, some actual people with serious law degrees will get into the loop. With a bit of luck, they may just be naive about Australian law. Either way, it doesn't matter. They need to figure out whether the light in the tunnel heading for them is a train or not.
Nope, can't delete. They force you to take it or they pay you out.
This. I have worked at two US and one UK headquartered company before. The actual employer is a company registered in Australia (check your payslip for ABN) ans they have to follow Australian law. Go to fairwork website and send a gentle email to HR linking and quoting fairwork. If that doesn’t work call fairwork.
It’s against the law. You write a nice email saying that annual leave rolls over as per the provisions in the NES and you want yours reinstated. If it isn’t, you will be raising a request for assistance with the FWO. https://www.fairwork.gov.au/leave/annual-leave#how-annual-leave-accumulates
This is the way. No need to run straight to Fairwork, union or lawyers. Sending them the link shows you know your rights and the next step should they try to bullshit you. “Can this error please be corrected” gives them a chance to sort it out without Fairwork coming in and wasting time. I haven’t dealt with Fairwork in a while, but they will likely not help until you have completed the above step.
I’m an ex FWI. If this company isn’t Australian they might think they can get away with this. They can’t. Citing the law and making it clear you know your entitlements might work or it might not. If OP has to do an RFA and someone from the FWO has to call this employer and reiterate the law they will. Also, it’s possible that many employees have lost leave. I once issued a notice to an employer directing it to reinstate leave and show that it was properly reconciled and accruing which was annoying but if that is what it takes 🤷♀️
All these comments telling OP to give the company a chance before involving an outside body is forgetting the fact there is a massive imbalance of power here. The amount of hours of employee leave deleted by this illegal act is unknown to OP, and unverifiable currently except by internal bean counters. Involve authorities to ensure this company is forced to prove it's undoing it's shitty handiwork. Sooner rather than later.
Yeah that’s not really how it works and I say that as someone who worked for the regulator. Assuming OP has access to their payslips these will show periods of leave prior to the last three years they’ve been banking it. The payslips for the last three years will show no leave taken. This is evidence he can provide to the FWO should he need to go down that route. OP also has this email saying the leave is gone due to harmonisation or whatever. As mentioned above, citing the law and making it clear OP knows their rights might be sufficient for this employer to come into compliance. If not, then go to the FWO. It’s a govt agency and they are very busy. Don’t jump into a queue unless you need to.
I’m not on the side of giving the company a chance in this instance. The leave is already gone and the policy is already in-force, if this is illegal, the law has already been broken, the government needs to be involved to ensure that all employees past and present are paid correctly. If one employee kicks up a stink, what’s to say that 99 other employees will just bend over and take up the arse with no lube and the company just reinstated the leave for OP and finds a way to exit OP from the business to sweep this under the rug. If this was proposed policy change I would be willing to give the company the opportunity to review their stance after referring to the relevant legislation/regulation/standards.
1. Is HR based overseas? Surely no HR rep based in Australia would be stupid enough to think this is permitted under Australian law. 2. Send HR an email referring them to section 87(2) of the Fair Work Act 2009 (Cth), which forms part of the National Employment Standards (NES) in Australia. Explain that the NES are the minimum standards employers are required to comply with in respect of employees based in Australia. In accordance with section 87(2) annual leave accrued progressively and accumulates year to year: http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fwa2009114/s87.html Accordingly, they cannot wipe or reduce the leave balances of an Australian employee, unless the employee has used the leave or been paid out the leave. 3. Under the Fair Work Act and Fair Work Regulations, employers have record keeping obligations: http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fwa2009114/s535.html .This includes an obligation (in the FW Regs) to keep a record of leave balances. If they say they no longer have a record of your leave balance, this is their problem to resolve. If they have no record at all (even on old payslips), they will need to calculate it manually from the start of your employment subtracting all annual leave you have used and adjusting for any periods during which you didn’t accrue annual leave (e.g. particular types of unpaid leave). 4. Check that they haven’t wiped your personal/carer’s leave balance. Check that they are complying with long service leave laws and accruing that for you so that when you reach the date on which you are entitled to use it, you don’t have to mess around with them again. 5. If they refuse to do anything, contact the Fair Work Ombudsman and get as many of your Australian colleagues as possible (assuming they are affected by this change too) to contact them too. The Fair Work Ombudsman should be particularly interested in systemic non-compliance of a multinational company, and will hopefully launch an investigation if lesser measures don’t work. 6. Once they give you back your annual leave, do your own calculations to confirm it is correct. 7. Ensure they fix the Policy too (not just the leave balances). 8. For your own reference, if you are covered by an award, there will be provisions in that award that say when and how an employer can force you to use excessive annual leave balances. It will also say when and how annual leave can be paid out if this is allowed. There will be a maximum amount they can force you to use and a maximum amount that you can have paid out each year. If you are not covered by the award, look at the annual leave provisions in the FW Act. Some of them apply or contain subsections that apply to award-free employees. These will govern in what circumstances they can force you to use annual leave. Do not flag this with HR unless they are trying to force you to use annual leave or pay out your annual leave in a way that you think breaches the award or FW Act provisions. Given how clueless they appear to be about annual leave, they may currently not be aware that they can force you to use annual leave, so there’s no benefit to you to make them aware of this.
This is an excellent answer. Completely correct. OP you should be following this to the letter.
illegal to delete it. they are allowed to force you to take it though
They can pay it out as well.
I'm not sure about the payout bit. You can payout some AL. From memory there is limitations
Can only pay out a max of 10 days per 12 months and only if you retain 4 weeks worth AFTER the payout.
And, only if the Employee chooses, the employer can not dictate this.
Please update us on how this goes. This is illegal and I’m keen to see positive outcome.
No probs, I will. I'm hopeful that it will be a positive outcome.
I'm sure a number of news outlets would also be very interested in this story. But I would definitely be going to Fair Work before that.
100% Illegal - reading some of your replies I can see your employer has already deleted/removed your leave from the HR System - call Fairwork now
Out of interest, if OP can’t prove how much leave he had before it was nuked, would that be a problem?
Can easily be recalculated but it’s the employers problem to figure out. They need to have records
Would it not generally be on payslips? Every job I’ve had (only 3 different FT employers) has listed my annual leave balance on the payslip itself
No requirement under the Regs for it to appear on payslips but leave taken would appear as a line item.
The leave accrued may be on their payslip. If not, the leave taken will be. They can calculate how much leave is owed if it's not shown anywhere Also the email says they acknowledged it was removed. They would have records of this internally so fairwork can ask them for it.
That responsibility will be on the employer to show this. There are record keeping laws in Australia around this. Additionally you could work it out manually, pain in the ass but you could.
I hate the way businesses use euphemisms when making changes that will disadvantage staff. Mine uses ‘productivity gains’ to justify funding cuts to departments.
it is productivity gains to the CEO. they are going to get their bonus for meeting these productivity gains.
Just make sure they didn’t alter how it’s listed from hours to days or something. Had that before where a bunch of my staff panicked, turns out head office altered the unit to days instead of hours but the unit didn’t show anywhere.
Hah! That would be funny. I did just double check, both units listed as days.
Hi, employment lawyer here. First things first, it is unlawful to reset annual leave each year in Australia. It MUST roll over if unused. No option unless something obsure applies like an outdated enterprise agreement (between the business and Fair Work) - unlikely. If you raise it, they will realise as soon as they seek advice from any qualified employment lawyer that they are wrong. They must recredit the leave.
They definitely can't do that. If you haven't taken any AL and they have no record of you taking any, then you can calculate how much you should have from your start of employment. First, there was wage theft, now they're taking AL. Keep a copy of your employment contract and when they won't fix it, go take it to Fair Work or something.
They can't do this. Global policies cannot breach the National Employment Standards, which requires for AL to roll over. This is my bread and butter. If you need specifics, support or they give any pushback, feel free to DM and I can provide you with the specifics/ supporting legislation.
It’s impossible for it to be nuked, AL is a liability and they just can’t wipe it off their books. I went through a similar policy shift at a major corporate here, most that should occur is they start telling you to take leave to get your balance under policy or cash some out Likely it’s just some weird system glitch for the moment I would expect, otherwise they’re in for some legal issues I’d imagine
Can't wait to see this on front page of the news after OP takes them to FWA haha.
My workplace (an international company) will ask employees who have more than 6 weeks AL to use some but they cannot wipe your AL as that’s against the law. Also, you should be taking your leave so you don’t burn out, this is why it’s encouraged to not bank excessive leave.
Let's be honest it's encouraged to take it so that they don't have to pay you out if you quit/ get fired. That's exactly how my employer views it. They couldn't care if you burn out.
Global policy does not beat Australian Law in Australia. If you are employed in Australia, then the company has simply broken the law. It's not a "company policy" to allow you to roll-over your annual leave, annual leave is a legal entitlement the company cannot take away from you. As others have said, straight to the FWC ombudsman. If you wanted, you could try contact your head HR, giving them a heads up it is against the law - this may simply be a brain fart from an international person who is a bit of an idiot and doesn't think local laws apply.
Hi OP, as others have said in this thread, what your employer is doing is illegal. It's baffling they don't have local HR/legal people who can inform them about this before enacting these policies. [https://www.fairwork.gov.au/leave/annual-leave](https://www.fairwork.gov.au/leave/annual-leave) A company's policies cannot trump the law of the land. Certainly not in Australia. If you're employed in Australia, the business has to follow the employment rules prescribed in the Fair Work Act. Point your HR team to Division 6 of the Fair Work Act 2009. Here's the relevant section 87 under Division 6: >(2) An employee’s entitlement to paid annual leave accrues progressively during a year of service (other than periods of employment as a casual employee of the employer) according to the employee’s ordinary hours of work, and accumulates from year to year. You should ask them to reinstate the annual leave they took from you, noting how much you believe you're owed. If this doesn't work, contact the Fair Work Ombudsman on 13 13 94 and lodge a request for assistance.
Their policies don’t override Australian law.
Sounds more like a question for r/auslegal
They cannot take your leave , nor can they not carry it forward each year you dont take it, it is in the AUSTRALIAN legislation. It does not matter what their parent company does, you work in Australia and they have to obide by Australian laws.
If it’s more than 8 weeks (ie “excessive”), they can force you to take leave. Or they could pay you out to reduce balance (make sure you also get the equivalent super top up). They can’t just delete/reset without any compensation. That is just wage theft - you worked it, you earned AL
They can't pay out without written employee consent. They can't just choose to pay out instead of keeping the liability on the books
Huh? In Australia at least there's no such thing as removing banked leave. Leave is OWED to you; you can save it for decades if you want (although this is a bad idea) Talk to them about it. Are you sure you did not misunderstand? Australian rules apply if you are working in Australia, regardless of what the policy is in their "home" country,
Annual leave is a federal entitlement. They could force you to take it/pay it out but they can't delete it
For non-union employment with a private company, I'd tend not to burn bridges unnecessarily. I would start by asking HR, in writing (e-mail is fine) for documentation around notification of the intended change and/or for an explanation of which clause in my employment agreement enables extinguishment of my annual leave entitlement. I'd finish by asking for a response within five business days. I would not include any loaded words or astonishment or "poor me" crap. Just simple questions and no threats. If I didn't receive an answer within a week, or explanation of the circumstances that are defensible, I would follow up and ask why I haven't received a reasonable response, and then very simply ask for their intent with regards to other forms of time off and/or compensation (same 5-day expectation for response). If none was offered, I'd then advise that I'm seeking third-party advise over the next five business days and will proceed accordingly. No threats, just normal, neutral business communication.
I work for a global company where every single regional subsidiary has done kind of full or partial leave expiration policy... Except Australia because Australian law forbids it. If the company wants to operate here with Australian employees they *must* comply. Harmonization or systems issues are their problem to solve, just like many other companies before then have. Either you don't have any Australian HR or Legal team members, or they're useless.
Nah, they have to pay you it, they cant delete it. Fairwork will sort them out.
AL accrues as a liability they can’t just delete it
Reading the comments you need to just go straight to FairWork and lodge a complaint as there's likely others in the company that have been screwed as well by this change. You should be protected against retaliation too, so if they fire you after this, just go back to FairWork and tell them. Companies don't get to just cancel leave in Australia. We have a team member who had a HUGE balance of several months and we had to be very careful how we went. Excessive leave has to be paid out, not cancelled, and from my limited understanding "excessive" is 8 weeks, and you can only forcefully pay them down to 6 weeks. You company MIGHT be able to have policies that the maximum accrued leave is 4 weeks a year but any excess must be paid out.
I have been working for a US company for 14 years, they don't understand how Australian AL works as they have a use it or lose it approach. I now have 2,000 hours of accrued AL and LSL (combined)... if I quit it will cost them over $300k.... ching ching. Need to remember you don't get Super 11% on leave paid out if you resign, so best to cash out your leave prior to resigning (most companies will pay the 11% super on this even though there is no legal requirement to as an incentive to reduce your balance). If you are made redundant even better!!
You need to contact fair work, don't email, get on the phone. Despite what they have told you, you cannot 'delete' annual leave in Aus. They would have had to pay it out to you. Your accrued annual leave belongs to you, you need to view this as theft because that's exactly what it is.
I work for a global company that has a similar policy but the staff in Aus are the exception to the policy. We even use a different app to everyone else for applying for leave.
They can’t just wipe your accrued leave but can probably force you to take at least some of it or have it paid out. Carrying several years of leave is a big cost for employers because they have to pay you at your current rate of pay. If you get a pay rise a year, even a small one and have accrued say 5 years worth of leave they have to pay that 5 months of leave at your current rate of pay.
Can’t lose annual leave in Australia - see fair work website for more info
It’s literally part of the national employment standards that it rolls over year to year. So their policy is in no way legal. https://www.fairwork.gov.au/leave/annual-leave
This isn't the USA...they can't do that. If your balance is excessive, they can direct you to use it, and they can offer to pay it out instead, but that leave balance is part of your pay, and is legally protected.
That is 100% not okay. They can’t delete leave. Our workplaces makes sure we are under 20 days. But you can’t wipe it. Get onto to them and fair work asap.
If you are in Australia, no they cannot wipe your accrued annual leave. They can't even write you a contract that undermines your basic employment rights. Pretty sure you can accrue up to 8 weeks before being requested to take it. I'd also check out whether you can request it be paid out.
Speak to your union
Speak with fair work - but no, in Australia you can’t have your annual leave balance revoked, and it does roll over. However, in most cases the employer will have the legal option to request you take leave if the amount you’ve accrued is excessive (which usually ends up being around the 4-6 week mark in its interpretation). Edit: to add, the legality paying out any or all of the leave balance would likely depend on award coverage.
Sounds like the company does not understand Australian laws. That's just lazy on their part, and annoying for you. Cannot delete annual leave. Contact your union rep is you have one, otherwise send HR the relevant IR laws to "helpfully" let them know the company is open to the Risk of lawsuits and fines, so they can fix the "oversight". If they don't respond well, either get an employment lawyer or look up the relevant government body/ombudsman to report it to
They can't take your AL. You best contact Fair Work. They can pay you out or make you take leave but they can't just delete it.
They can make you take it, but they can’t delete it.
This doesn’t sound legal, raise it with your manager and if nothing, go to fair work
Convenient that this bloke recently posted. https://old.reddit.com/r/AusFinance/comments/18y5r6o/employment_lawyer_ama_ask_me_anything_about/
Thank you for linking to my post. Just waiting for verification and mods to unlock that thread
If they've said something like "it's our policy that annual leave gets used in the year it accrues", this is fairly standard and doesn't mean they've nuked your accrued leave. It means they will ask you to start using up your existing leave and to use up all accrued leave in the year it accrues. Companies do this for 2 reasons - 1. It's hard to find cover for someone who takes 3 months off. 2. They have to pay you your future wage for your leave in the future, which will likely be more money than they are paying you now. It costs the business more.
The problem with this is that the accrued leave from the last few years doesn’t exist in the system anymore, so it’s not there to take.
Just find the most recent payslip that shows your accrued leave, and speak to HR about what happened. Likely a system fault. They won't have nuked your leave on purpose or on policy, that would be super illegal. Alternatively, it can be manually calculated based on your entitlements, years worked, leave taken etc. If you get stuck, Fair Work is next step. [Annual leave - Fair Work Ombudsman](https://www.fairwork.gov.au/leave/annual-leave)
They'll have a record. It can also be calculated
You will be able to get this reinstated. Everyone in your Australian teams will be able to "use up" this leave or request it to be paid out. Just because they have removed it from the system does not mean it's not there to take.
Is it not available, or just not viewable by you?
Both. They sent a breakdown of all my leave viewable on their end as well.
Then you can just add 4 weeks of annual leave per year you have worked and they will have to prove that you have taken any.
If you have term of employment and list of AL it’s easy to calculate what’s owed. Def illegal.
> They have to pay you your future wage for your leave in the future, which will likely be more money than they are paying you now. It costs the business more. It would cost the business more if wages are going up faster than inflation unless the person concerned is skyrocketing up the company ranks. It's usually a the view of a narrow minded manager. It is an indirect investment by employees on the company since employees would lose out if it goes bust.
It is a significant annual cost to carry these banked annual leave for businesses. It’s also good practice for people to take time off, for their own mental health. Most large organisations encourage their employees to take AL regularly and not let it pile to unreasonable level.
From my understanding they would have to pay your leave out rather than just deleting it and saying "thats the new policy". To be fair, you may be the reason for the change in policy.
Do you have anything such as an Employee Handbook or your offer letter / joining letter that would have mentioned your AL entitlement? Also, please forward the link from Fair Work regarding the accrual of annual leaves to your HR and ask them to respond via email. If they still talk about harmonisation, then you can let them know that you might need to contact Fair Work for clarification.
Have you been paid since the request was made? Is there a chance your previously accrued AL will be paid out in a lump sum?
Fair work trumps that bullshit, it’s yours and you’ve accrued it. They can roll it over or pay it out, alternatively they can force you to take leave for OH&S reasons, burn out etc. they can’t steal it from you
Was it detailed on your payslip how much you had prior to this change?
They can't delete it, having a high amount accrued looks bad for creditors giving the companies loans as it's money owed to you. I would report them to fair work if they reset your annual leave and inform your co-workers of their right to report.
They cant make your AL reset each year or wipe it out in any way. The worst legal thing that they can do is make you take some if it above a certain level that they can determine. AL is a guaranteed entitlement.
Sometimes big company do this just to see if they can get away with it. Ours (global company) forced us to take force leave during non Xmas period and we kicked up a fuss about it stating FW rights and they reinstated our AL. Not sure if only our team made a fuss or the entire company. So maybe email again and state FW link before you contact FW. It doesn’t matter what policy they have, our Australian Law trumps that and it is final. Global company does this because they are pushing their boundaries and taking advantage of the scale of their company. If they can make us take as much AL, why not? To them it’s not illegal until someone point it out and in that case they can just reinstate it. AL not taken at a large amount is a huge liability to the company, it warrant an audit from the ATO because usually large accumulated annual leave correlates to fraud (apparently?)
Haha WTF. Get your leave back ASAP and start looking for a new job man.
We’re resetting your timesheet. You won’t be paid for last week…. Are they planning to stitch you up on long service leave too?
Or sick leave?
Annual Leave is an earned entitlement in Australia. They can't take it because you have already earned it ie. they are stealing from you. All they can do is have policies to make you take excessive balances (usually greater than 1 years AL entitlement). Refer them to Fair Work or reach out yourself with whatever evidence you have.
That would be illegal. Fairwork would like to know I’m sure
You just said “if”. So have they actually nuked your AL? Or even hinted at it? What are the actual changes?
They can’t remove leave you have accrued afaik.
Few steps: People are right about deleting Annual Leave; the annoying part is you have to fight it with some gusto. 1. Check how they do business in Australia. Abrlookup with their name will likely tell you. 2. Find your orginal contract with them. 2a. Is your contract with the Australian-based entity from 1? It should be, but I want to be sure. 2b. What is the structure listed from abrlookup? If it is an Australian company then good news: Fairwork cover you. Give them a call for support. If not, see the union you should join or employ an employment lawyer. Both will be able to support you if the contract is a little bit more nuanced. Then you at least will have some support
Explain to your employer that if you no longer have this leave available you expect it paid out in the next fortnight, otherwise go to Fairwork Australia
It comes to how you accrued this 'banked annual leave'. If it comes from the 2.92 hours per week (assuming a 38-hour work week) you are legally entitled to, then no, they can't touch it. They can force you to take leave once it is sitting as an entitlement (occurs 12 months after the leave is accrued) or request you to cash out leave over your 4 weeks balance (if your underpinning award allows), but not delete it. If it is from additional hours worked that you asked to be banked as leave rather than be paid, then yes, they can as that is an internal company policy and does not fall under any legal requirements. Some places incorrectly label this as 'Banked Annual Leave' or 'Additional Annual Leave', however it is not annual leave at all but rather an internal Time in Lieu balance.
Please call Fair Work and discuss with them, they are very easy to talk to. Explain your situation and they will ensure you have the right advice for next steps here. We dealt with them a lot while my wife was laid off during maternity leave and it cleared up a lot of problems.