You can request employees take leave while they're on JobKeeper but, according to experts, it's paramount you get the where, when and how (including the how much) of the request right.

CCIWA's Employee Relations Advisor Chris Nunn says that it boils down to the temporary flexibility granted through recent amendments to the Fair Work Act.

The changes aim to give employees the flexibility to utilise JobKeeper, and keep staff employed, during the COVID-19 downturn.

"You can request an employee [on JobKeeper] use their annual leave during this time, and they cannot unreasonably refuse that," he said.

The employee, however, must be allowed to retain a minimum of two weeks leave after the requested leave.

Chris recommends, in the event you do request an employee take leave, you make a note of it and keep it on record.

If an employee on JobKeeper does refuse to take annual leave, and the issue proves impossible to resolve between you, it can be taken to the Fair Work Commission to settle.

Reasonable versus unreasonable requests

But what makes a request reasonable or unreasonable? Chris says there's no hard and fast rule.

He says examples of grounds to refuse leave requests have, in the past, included issues like carer responsibilities, and whether employees have enough to take care of children on school holidays.

Backtracking leave

Chris says employers are not obliged to accommodate staff requests to cancel holidays after the JobKeeper scheme was announced.

"If employees want to cancel their annual leave, it is something that is still only by mutual agreement between the employee and the employer," he said.

"JobKeeper itself hasn't impacted this.

As with anything you would think about how reasonable that refusal [to retract the leave] was. But that said, if an agreement was in place to access that leave already, then generally the same rule applies in reversing it--you would need mutual agreement to cancel that."

Public holidays

Public holidays should be approached in the same way as you usually would, regardless of whether your employee is on JobKeeper.

Long service leave

In WA, the majority of employees are entitled to long service leave under the Long Service Leave Act 1958. Under this act, employees can't be made to take their long service leave. Chris says that JobKeeper hasn't changed this.

"Some employees may have long service leave entitlements, which are derived from a federal, pre-modern award, that would have covered an employer and their employees before January 1, 2010.

And depending on that pre-modern award, some employers might under those preserved entitlements, be able to request their employees to take long service leave.

If they're doing this though we'd always recommend advice should be sought."

If you can’t get JobKeeper

Recently, some modern awards were also amended so that employees can temporarily direct staff to take all but two weeks of their annual leave.

Members can contact the Employee Relations Advice Centre for advice on whether these changes include their staff.