sec.35Payment for annual leave

### sec.35 Payment for annual leave Unless an employee and employer otherwise agree, the employer must pay the employee for annual leave in advance. The employer must pay for the leave— at the ordinary rate being paid to the employee immediately before the leave is taken; or if, immediately before taking the leave, the employee is being paid at a higher rate than the ordinary rate—at the higher rate. If an employee is entitled to receive an amount representing commission in the employee’s annual leave payment, the employer must pay the default average commission unless— a relevant industrial instrument, or a contract between the employer and employee, otherwise provides; or the commission, on application, considers the default average commission would not represent a fair amount in the circumstances. If, on application under subsection (3) (b) , the commission considers the default average commission would not represent a fair amount in the circumstances, the commission may make the order it considers appropriate in the circumstances. In this section— default average commission means the amount worked out by the following formula— where— dac means the default average commission. c means the lesser of the following total commissions— total commissions payable to the employee in the 1 year before the leave is taken; total commissions payable to the employee during the employee’s period of employment. d means the lesser of the following— 365.25; the number of days in the employee’s period of employment. ld means the number of days in the period starting on the day the leave starts and ending on the day before the employee is to return to work. (sec.35-ssec.1) Unless an employee and employer otherwise agree, the employer must pay the employee for annual leave in advance. (sec.35-ssec.2) The employer must pay for the leave— at the ordinary rate being paid to the employee immediately before the leave is taken; or if, immediately before taking the leave, the employee is being paid at a higher rate than the ordinary rate—at the higher rate. (sec.35-ssec.3) If an employee is entitled to receive an amount representing commission in the employee’s annual leave payment, the employer must pay the default average commission unless— a relevant industrial instrument, or a contract between the employer and employee, otherwise provides; or the commission, on application, considers the default average commission would not represent a fair amount in the circumstances. (sec.35-ssec.4) If, on application under subsection (3) (b) , the commission considers the default average commission would not represent a fair amount in the circumstances, the commission may make the order it considers appropriate in the circumstances. (sec.35-ssec.5) In this section— default average commission means the amount worked out by the following formula— where— dac means the default average commission. c means the lesser of the following total commissions— total commissions payable to the employee in the 1 year before the leave is taken; total commissions payable to the employee during the employee’s period of employment. d means the lesser of the following— 365.25; the number of days in the employee’s period of employment. ld means the number of days in the period starting on the day the leave starts and ending on the day before the employee is to return to work. - (a) at the ordinary rate being paid to the employee immediately before the leave is taken; or - (b) if, immediately before taking the leave, the employee is being paid at a higher rate than the ordinary rate—at the higher rate. - (a) a relevant industrial instrument, or a contract between the employer and employee, otherwise provides; or - (b) the commission, on application, considers the default average commission would not represent a fair amount in the circumstances. - (a) total commissions payable to the employee in the 1 year before the leave is taken; - (b) total commissions payable to the employee during the employee’s period of employment. - (a) 365.25; - (b) the number of days in the employee’s period of employment.