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Optometry Australia is aware that some employers and individuals in decision-making roles (e.g. managers, directors, HR officers) are placing themselves at risk of legal action by unreasonably restricting access to annual leave. We remind all persons involved in these decisions that annual leave requests should generally be approved unless there is a valid and reasonable basis for refusal.

Legal precedent confirms that individuals may be found personally liable when they are involved in the unlawful refusal of annual leave. Relying on company policy will not protect a person from liability where the refusal breaches the Fair Work Act.

For more information on when a leave request should be approved, see the Fair Work website or contact OA for no-charge initial legal advice from our member-only HR legal service. – Optometry Australia

Authors (L-R): Emma Dalley, Principal Lawyer at Industry Legal Group (ILG) and Sophie Koh, Director of Professional Services at Optometry Australia

At Optometry Australia we are actively standing beside our members with legal guidance, practical tools and advocacy to protect your workplace rights.

We are seeing increased concern from members about leave requests being unreasonably denied and approved requests being cancelled. These actions may breach legal entitlements. 

We are working closely with members and the employment law team at Industry Legal Group (ILG) to address these issues when they arise and help ensure you’re treated fairly at work. 

Your legal entitlements: Backed by law and your Association 

Annual leave cannot be unreasonably refused

Under section 88 of the Fair Work Act, annual leave is to be taken at a time agreed between the employee and employer. An employer must not unreasonably refuse a request by an employee to take paid annual leave.  

Each request should be considered on its merits, and any refusal must be based on valid operational grounds. 

This applies even if your contract refers to “blackout periods.” Such clauses do not override your entitlements under the Fair Work Act. 

Tip: We recommend checking your employer’s leave policy to confirm the correct process for requesting annual leave. If you need help preparing a request, we can assist with drafting a clear and professional template.  

For managers: You may be personally liable  

In addition to the employer, managers and other individuals can also be held personally liable for breaches relating to annual leave. Under section 550 of the Fair Work Act, a person who is involved in a contravention of a civil remedy provision concerning annual leave is taken to have contravened that provision themselves. This includes managers, directors, HR officers and others who are involved in decisions about granting, refusing or cancelling annual leave. 

This means individuals may face personal penalties if they take part in unlawful decisions affecting an employee’s statutory right to annual leave. Relying on internal policy or instruction is not a defense. Each person must ensure their own conduct complies with the Fair Work Act.   

Case example

In Chin v Visual Thing Australia Pty Ltd [2024] FedCFamC2G 896, the employer cancelled pre-approved annual leave and implemented a new leave rule in response to the employee raising concerns about work hours and entitlements. The Court held that both actions amounted to adverse action under section 340 of the Fair Work Act. The manager and a director involved in these decisions were found personally liable under section 550 for their role in the contraventions. 

Key findings

  • Cancelling pre-approved leave for a prohibited reason constituted adverse action under section 340. 
  • Introducing a new leave policy that restricted access to leave also constituted adverse action. 
  • Both actions were causally linked to the employee’s exercise of a workplace right. 
  • The individuals involved were aware of the employee’s rights and knowingly participated in the contraventions.  
Takeaway: Managers and other individuals may be personally liable under section 550 of the Fair Work Act if they are involved in decisions that unlawfully interfere with an employee’s annual leave entitlements. Internal policies or operational demands do not excuse adverse action taken for a prohibited reason.

Under section 88(2), employers must not unreasonably refuse annual leave. Any decision to deny, cancel or limit leave must be based on legitimate operational grounds and assessed fairly. If not, both the employer and individuals involved may face legal consequences.

FAQ: Annual leave during blackout periods 

Q: My contract says I can’t have time off over Christmas and New Year. My annual leave request was rejected. What can I do?

A: Employers may set blackout periods during peak times like Christmas, New Year or Easter. However, under section 88(2) of the Fair Work Act, they must not unreasonably refuse a request for annual leave.  A refusal may be unlawful where the employee has given sufficient notice, followed the correct process and the employer fails to respond within a reasonable timeframe or fails to apply the blackout period fairly and consistently. The existence of a blackout period alone is not a blanket justification for refusal. 

Case example

In Adriana Stevens v Horsley Park Supermarket Pty Ltd T/A Carlo’s IGA Horsley Park [2017] FWC 4626, the employee submitted a leave request 12 weeks in advance for Easter. The employer cited a blackout period but failed to respond until 2.5 weeks before the trip. The Commission found that this delay and the employer’s overall handling of the request was unreasonable. The dismissal that followed was held to be harsh, unjust and unreasonable. The decision confirms that blackout periods must be managed in line with the procedural and substantive requirements of the Fair Work Act.

Takeaway: Blackout periods are permitted, but they do not override the obligation to consider leave requests fairly, case by case. Employers must respond in a timely manner and be able to justify any refusal on operational grounds. Poor handling, delay, or blanket policies applied without proper engagement may breach the Fair Work Act. 

Q. Are blackout periods even legal?

A: Yes, if applied reasonably. Each request must be considered on its merits. Employers should have a clear, consistently applied policy and respond within a reasonable timeframe. Informal rules or unexplained refusals can be challenged. 

Tip: If your leave request has been refused and you are unsure whether the decision was lawful, we can help review the situation and advise you on next steps. 

You’re not alone: We’re taking action 

We’re already helping members in similar situations, advocating for fair treatment, supporting internal discussions and escalating matters where appropriate. 

We can: 

  • Review your contract and entitlements 
  • Assist with drafting communications or formal responses and 
  • Liaise with ILG to advise on legal strategy and next steps. 
  • If you’re experiencing issues with leave – we encourage you to get in touch. 

Get support today 

Whether you’re an optometrist needing clarity or an optometrist manager seeking to do the right thing, we’re here to help ensure everyone understands their rights and responsibilities. 

Optometry Australia Help Desk:

Industry Legal Group (ILG):

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In the spirit of reconciliation Optometry Australia acknowledges the Traditional Custodians of country throughout Australia and their connections to land, sea and community. We pay our respects to their Elders past and present and extend that respect to all Aboriginal and Torres Strait Islander peoples today.