Q: We have a number of employees who currently have negative annual and personal/carer’s leave. Are we able to amend our leave policies to include the following statements:

• all negative leave requires a medical certificate; and
• there will be a 5-day cap on negative leave except with the managing director’s approval.

A: It is possible to change your leave policies, in consultation with your employees.

The Fair Work Act 2009 (Cth) (FW Act) allows you to request that an employee provide a medical certificate, or evidence that the leave was taken for the purposes specified under the personal/carer’s leave provisions.

The FW Act does not prohibit an employee from taking more than their accrued amount of annual or personal/carer’s leave. Your policies may be changed to allow the employee to take up to 5 days’ leave beyond what has been accrued.

As with the implementation and change of any workplace policies, employees should be made aware of the changes. This is particularly important in the context of taking negative annual leave.

If an employee leaves and you wish to deduct the excessive leave from their final pay, the employee must have agreed to such a deduction, either by reading and signing the new and improved policy, or by signing an agreement to deduct the amount of money from their final pay.

Please note: The answer is correct at the time of publishing. Be aware that laws may change over time. Refer to Annual leave for current advice.