Section 91 — Fair Work Act 2009 (Cth)

Transfer of employment situation in which employer may decide not to recognise employee’s service with first employer

(1) Subsection 22(5) does not apply (for the purpose of this Division) to a transfer of employment between non‑associated entities in relation to an employee, if the second employer decides not to recognise the employee’s service with the first employer (for the purpose of this Division).

Employee is not entitled to payment for untaken annual leave if service with first employer counts as service with second employer

(2) If subsection 22(5) applies (for the purpose of this Division) to a transfer of employment in relation to an employee, the employee is not entitled to be paid an amount under subsection 90(2) for a period of untaken paid annual leave.

Note: Subsection 22(5) provides that, generally, if there is a transfer of employment, service with the first employer counts as service with the second employer.

Related sections

• s 88 — Taking paid annual leave
• s 89 — Employee not taken to be on paid annual leave at certain times
• s 90 — Payment for annual leave
• s 92 — Paid annual leave must not be cashed out except in accordance with permitted cashing out terms
• s 93 — Modern awards and enterprise agreements may include terms relating to cashing out and taking paid annual leave
• s 94 — Cashing out and taking paid annual leave for award/agreement free employees

Research how courts apply s 91

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