COVID-19 | First Job­Keep­er Deci­sion Clar­i­fies Annu­al Leave Request

In McCreedy v Vil­lage Road­show Theme Parks Pty Ltd [2020] FWC 2480, the Fair Work Com­mis­sion hand­ed down its first deci­sion deal­ing with a dis­pute aris­ing under the Job­Keep­er scheme. 

The appli­cant, Ms McCreedy, had been employed by Vil­lage Road­show Theme Parks Pty Ltd (Vil­lage Road­show) on a part time basis, work­ing around 15 hours over two days each week for approx­i­mate­ly 22 years. Dur­ing that time, Ms McCreedy had accrued approx­i­mate­ly 9.3 weeks of annu­al leave and 8.6 weeks of long ser­vice leave. 

As a result of COVID-19, Vil­lage Road­show was no longer able to oper­ate its theme parks and Ms McCreedy was stood down and issued with a Job­Keep­er enabling direc­tion to not attend work. Dur­ing this time, Ms McCreedy became eli­gi­ble to receive the Job­Keep­er pay­ment. As a result, she start­ed to receive $750 per week in Job­Keep­er pay­ments which was well in excess of her usu­al week­ly take-home pay of $375.

In late April, Ms McCreedy was issued a request under the Job­Keep­er scheme, this time request­ing her to take annu­al leave for half her ordi­nary hours of work. For Ms McCreedy, this equat­ed to one day of annu­al leave per week until 27 Sep­tem­ber 2020 (when the COVID-19 eco­nom­ic response plan would cease to take effect) or when Ms McCreedy’s annu­al leave bal­ance was reduced to two weeks (being fours days), whichev­er came first. Ms McCreedy was advised to con­sid­er the request. Being a request made pur­suant to the rules relat­ing to the Job­Keep­er scheme, Ms McCreedy could not unrea­son­ably refuse it. 

Ms McCreedy refused the request to take annu­al leave on sev­er­al grounds. When the dis­pute could not be resolved with her employ­er, she lodged an appli­ca­tion with the Fair Work Com­mis­sion pur­suant to Part 6 – 4C of the Act which was intro­duced in con­junc­tion with the Fed­er­al Gov­ern­men­t’s Job­Keep­er scheme. Part 6 – 4C of the Act pro­vides employ­ers the pow­er to issue Job­Keep­er enabling direc­tions and requests to employ­ees and grants the Fair Work Com­mis­sion juris­dic­tion to deal with Job­Keep­er disputes. 

Dur­ing the pro­ceed­ings, Ms McCreedy not­ed her refusal of the request to take annu­al leave on the basis that she had already booked sev­er­al hol­i­days, includ­ing a six-week trip to Europe in 2021, which would require use of her annu­al leave. Notably, Ms McCreedy had not yet been grant­ed approval for these hol­i­days. She sub­mit­ted that the request par­tic­u­lar­ly dis­ad­van­taged long-serv­ing employ­ees who had accrued large leave bal­ances, and that the Job­Keep­er pay­ment was not intend­ed to be used by larg­er employ­ers, such as Vil­lage Road­show, to set-off against the annu­al leave enti­tle­ments of employ­ees. In addi­tion, Ms McCreedy also cit­ed a med­ical con­di­tion as part of her refusal to accept the request. 

Ulti­mate­ly, Com­mis­sion­er Hunt found that Ms McCreedy had unrea­son­ably refused Vil­lage Road­show’s request. In her rea­son­ing, Com­mis­sion­er Hunt not­ed that Ms McCreedy had not sought for­mal approval for her annu­al leave requests, and that the Vil­lage Road­show pol­i­cy dis­cour­aged employ­ees from book­ing hol­i­days pri­or to being grant­ed leave approval. 

Com­mis­sion­er Hunt also reject­ed Ms McCreedy’s sub­mis­sions that Vil­lage Road­show’s request was unrea­son­able, not­ing that “[t]he test is not, how­ev­er, whether [Vil­lage Road­show] has act­ed rea­son­ably or unrea­son­ably; it is whether Ms McCreedy has unrea­son­ably refused the request of [Vil­lage Road­show]”.

Fur­ther­more, Ms McCreedy’s sub­mis­sion that such requests under the pro­vi­sions of the Job­Keep­er scheme should only be avail­able to small­er employ­ers was also reject­ed on that basis that such an argu­ment was not sup­port­ed by the Explana­to­ry Mem­o­ran­dum. To put it mild­ly, these sub­mis­sions did not find favour. Com­mis­sion­er Hunt stat­ed (at [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 [Vil­lage Road­show], 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.”

Notably, the fact Ms McCreedy ben­e­fit­ed from a greater week­ly wage under the Job­Keep­er pay­ment than she received under her usu­al take-home pay was not con­sid­ered a rel­e­vant fac­tor and was, there­fore, not tak­en into consideration. 

The case of McCreedy v Vil­lage Road­show Theme Parks Pty Ltd [2020] FWC 2480 is like­ly to be the first of many appli­ca­tions heard by the Fair Work Com­mis­sion with respect to Job­Keep­er direc­tions and requests. Impor­tant­ly, it demon­strates that in sim­i­lar dis­putes regard­ing Job­Keep­er requests, an employ­er does not nec­es­sar­i­ly need to prove that the Job­Keep­er request was rea­son­able. Rather, the onus is on the employ­ee to demon­strate that they have not unrea­son­ably refused such a request.