Last week Justices Tracey, Flick and Katzmann of the Full Federal Court upheld the decision of Justice Buchanan, in relation to an employer’s obligation to pay annual leave on termination of employment pursuant to section 90 (2) of the Fair Work Act 2009 (Cth) (“FW Act”). This decision confirms that “the intention of the legislation is that untaken annual leave is payable at the rate at which it would have been paid had the employee taken it at the time the employee was eligible for it regardless of whether this amount was in excess of the minimum annual leave entitlement required under section 90(1) of the FW Act.What this means for employers

• Annual leave paid out at termination of employment must include loadings, such as annual leave loading if the employee would have entitled to such loadings while employed