With the recent passing of legislation in France that allows employees to donate their paid leave to employees with sick children has resulted in a number of articles saying that similar laws should be passed in Australia.

Whilst most of the articles have said that change is needed because current legislation doesn't allow it, they are only party right.

Whilst the Fair Work Act 2009 doesn't expressly allow it, the act doesn't prohibit it either. What it does do is set down the minimum amount of days of personal and annual leave that an employee is entitled to, along with a process for cashing out of excess accrued annual leave.

Rather than changing the legislation to force it upon employees and employers, the 'pooling' of annual leave should be established in relevant enterprise agreements.

The Fair Work Act does allow for clauses in enterprise agreements to allow employees to cash out their annual leave when they have more than four weeks accrued, and so long as the amount of annual leave being cashed out does not cause their accrued total to drop below four weeks.

What everyone needs to remember when looking at the personal and annual leave provisions within the Act is that what is legislated is the minimum entitlement, not the maximum.

This means that there are a number of options available to the business that wants to implement something similar.

Give it anyway

Unlimited personal leave

Pooling additional annual leave

Donating cashed in annual leave

Grant It Anyway

There is no legislation in Australia restricting the maximum amount of leave that an employee can take. This means that if the company can afford it, the easiest thing for it to do would be to grant the employee the additional time off.

Though it would be worthwhile noting that if it is done for one employee, it needs to be done for all employees who may find themselves in a similar situation.

Unlimited Personal Leave

By far the easiest way to accommodate this would be to allow all employees an unlimited number of personal leave days. This could be implemented at the policy level, and would be especially useful if there is an enterprise agreement in force that won't expire for some time.

The procedure for accessing leave over the minimum 10 days per year or in extreme circumstance could be written into the policy so all employees know how to access additional leave, if required. It should also help to limit possible abuses of the leave entitlements.

Pooling Additional Annual Leave

This would need to be done via a clause in an enterprise agreement, where the employees accrue four weeks plus two days annual leave per year. The two additional days going to a pool to be used by all employees on compassionate grounds in extreme circumstances when extended leave is required. Once again there would need to be a policy written giving examples of when this pool of leave can be accessed, and what evidence is required.

Donating Cashed In Annual Leave

This option would be the most difficult one to implement. For this to work, employees would need to have in excess of four weeks annual leave accrued, and the amount of leave donated back could not result in them having less than four weeks.

For this to happen, the employee would need to notify the employer every time that they wanted to donate their leave to the pool, and it would only apply to those who had more than four weeks accrued.

As you can see, there are a number of options available to employers and employees who want to do something like this, without the need for legislation to be changed.

=================================================================

About Cameron: He is a prolific blogger about a number of relevant social issues, and a passionate industrial relations professional who is quickly establishing himself as the go to trainer for real world industrial relations solutions.

You can subscribe to his mailing list Industrial Relations Simplified by following this link