Back in March of this year (
here), following a Federal Court decision, we happily declared
an end to the long debate over whether annual leave loading must be
paid on termination payments in respect of accrued but unused
annual leave (the Court found that it does). We apparently forgot
to touch wood at the time because guess what – appeal!
However, in a win for consistency, the Full Bench of the Federal
Court upheld the initial decision on the basis that section 90(2)
of the Fair Work Act 2009 clearly states that a payment in
lieu of accrued annual leave on termination must be equivalent to
the amount that the employee "would have been paid" if
he/she had taken the annual leave. That includes any entitlement to
annual leave loading even if a modern award or enterprise agreement
says otherwise.
