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Employee Leave Entitlements

08/05/2019 2:22 PM

Employee Leave Entitlements

EMPLOYEE LEAVE ENTITLEMENTS

Leave entitlements are prescribed in the National Employment Standards (NES) within the Fair Work Act and set standards for both permanent (full time and part time) employees and for casual employees.
Leave entitlements are generally paid time for permanent employees (although there are some exceptions). Casual employees do not have access to paid leave entitlements (apart from Long Service Leave) with the general option of being unavailable to work when unpaid leave is being sought. The taking of leave by a casual employee should not impact on their service with an employer.
This newsletter provides details of the various forms of leave under the NES and how they are requested and taken by employees.

1. Annual leave

Annual leave (also known as holiday pay) allows an employee to be paid while having time off from work.

All employees (except casual employees) get paid annual leave. Full-time and part-time employees get four (4) weeks of annual leave, based on their ordinary hours of work.

For example, a part time employee works 20 hours per week for a year. During that year, the employee will accumulate 80 hours of annual leave (the equivalent of four (4) weeks work for them).

Shift workers may get up to five (5) weeks of annual leave per year provided they work as a seven day shift worker including regularly working on Sunday and on public holidays and with an employer that operates continuous shifts of work 24 hours per day and over seven days each week.

Annual leave accumulates from the first day of employment, even if an employee is in a probation period. The leave accumulates gradually during the year and any unused annual leave will roll over from year to year.

Annual leave accumulates when an employee is on paid leave such as paid annual leave and paid sick and carer’s leave, community service leave including jury duty and on long service leave.

Annual leave does not accumulate when the employee is on unpaid forms of leave including parental leave.

Payment of annual leave loading of 17.5 % still exists in many awards. Payment of leave loading for shift workers may be at the shift penalty rate if higher than the 17.5%.

2. Personal (sick) and carer’s leave

Personal and carer’s leave (also known as personal leave or sick and carer’s leave) lets an employee take time off to help them deal with a personal illness, caring responsibilities and family emergencies. Sick leave can be used when an employee is ill or injured.

An employee may have to take time off to care for an immediate family or household member who is sick or injured or help during a family emergency. This is known as carer’s leave but is paid out of the employee’s personal leave balance.

For carer’s leave, an immediate family member is a:

  • spouse or former spouse
  • de facto partner or former de facto partner
  • child
  • parent
  • grandparent
  • grandchild
  • sibling, or
  • child, parent, grandparent, grandchild or sibling of the employee’s spouse or de facto partner (or former spouse or de facto partner).
  • an immediate family member includes step-relations (e.g. step-parents and step-children) as well as adoptive relations.
  • In addition, a household member is any person who lives with the employee.

What evidence and notice does an employee need to give for personal (sick) and carer’s leave and compassionate leave?

For any period of personal/carer’s leave or compassionate leave, an employee must give his or her employer notice of the taking of such leave. That is, the employee who is absent must let their employer know as soon as practicable, and must advise the employer of the period, or expected period, of absence.

An employer is able to request evidence to substantiate the reason for leave. A failure to either provide notice or, if required, reasonable evidence to substantiate the absence, means the employee is not entitled to the leave.

3. Compassionate leave

All employees (including casual employees) are entitled to two days compassionate leave each time an immediate family or household member dies or suffers a life-threatening illness or injury. (also known as bereavement leave).

Compassionate leave can be taken when a member of an employee’s immediate family or household dies or contracts or develops a life-threatening illness or injury.

Immediate family is an employee’s:

  • spouse or former spouse
  • de facto partner or former de facto partner
  • child
  • parent
  • grandparent
  • grandchild
  • sibling, or
  • child, parent, grandparent, grandchild or sibling of the employee’s spouse or de facto partner (or former spouse or de facto partner).
  • an immediate family member includes step-relations (e.g. step-parents and step-children) as well as adoptive relations.
  • In addition, a household member is any person who lives with the employee.

Employees will be able to take compassionate leave for other relatives (e.g. cousins, aunts and uncles) if they are a member of the employee’s household, or if the employer agrees to this.

If an employee is already on another type of leave (e.g. annual leave) and needs to take compassionate leave, the employee can use compassionate leave instead of the other leave.

Full-time and part-time employees receive paid compassionate leave using their base rate of pay and casual employees receive unpaid compassionate leave.

This does not include separate entitlements such as incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates.

Compassionate leave cannot be cashed out.

4. Community service leave

Employees, including casual employees, can take community service leave for certain activities such as voluntary emergency management activities or jury duty (including attendance for jury selection). Community service leave is unpaid. However, jury service is paid.

An employee engages in a voluntary emergency management activity if:

  • the activity involves dealing with an emergency or natural disaster
  • the employee engages in the activity on a voluntary basis
  • the employee was either requested to engage in an activity, or it would be reasonable to expect that such a request would have been made if circumstances had permitted
  • the employee is a member of or has a member-like association with a recognised emergency management body.

A recognised emergency management body is:

  • a body that has a role or function under a plan that is for coping with emergencies / natural disasters (prepared by the Commonwealth or a state or territory)
  • a fire-fighting, civil defence or rescue body
  • any other body which is mainly involved in responding to an emergency or natural disaster such as the State Emergency Service (SES), the Country Fire Authority (CFA) and the RSPCA (in respect of animal rescue during emergencies or natural disasters).

How much leave is an employee entitled to?

An employee is entitled to take community service leave while they are engaged in the activity and for reasonable travel and rest time. There is no limit on the amount of community service leave an employee can take.

Are there notice and evidence requirements?

An employee who takes community service leave must give their employer notice of the absence as soon as possible (this may be after the leave starts) and information about the period or expected period of absence.

An employer may request an employee who has given notice, to provide evidence that they are entitled to community service leave.

5. Long service leave

Most employees’ entitlement to long service leave comes from long service leave laws in each state or territory. These laws set out how long an employee must work to get long service leave (e.g. after seven years) and how much long service leave the employee gets. In some states and territories long serving casuals are eligible for long service leave.

Please note that the long service leave legislation in Victoria changed with affect from 1 November 2018 and now includes , amongst other changes, counting unpaid absences of up to 52 weeks due to parental leave as service

6. Maternity and parental leave

Parental leave is leave that can be taken when:

  • an employee gives birth
  • an employee’s spouse or de facto partner gives birth
  • an employee adopts a child under 16 years of age.

Employees are entitled to 12 months of unpaid parental leave. They can also request an additional 12 months of leave.
Employees can get parental leave when a child is born or adopted. Parental leave entitlements include:

  • maternity leave
  • paternity and partner leave
  • adoption leave
  • special maternity leave
  • a safe job and no safe job leave
  • a right to return to old job.

All employees in Australia are entitled to parental leave.
Employees are able to take parental leave if they:

  • have worked for their employer for at least 12 months:
    • before the date or expected date of birth if the employee is pregnant
    • before the date of the adoption, or
    • when the leave starts (if the leave is taken after another person cares for the child or takes parental leave)
    • have or will have responsibility for the care of a child.

    Casual employees
    For casual employees to be eligible for unpaid parental leave they need to have:

    • been working for their employer on a regular and systematic basis for at least 12 months
    • a reasonable expectation of continuing work with the employer on a regular and systematic basis, had it not been for the birth or adoption of a child.

    Pre-adoption leave
    Employees who are taking parental leave to care for an adopted child are also entitled to two days unpaid pre-adoption leave to attend relevant interviews or examinations.
    This leave can’t be used if an employer tells an employee to take another type of leave (e.g. paid annual leave).

    7. Family and Domestic Violence Leave

    All employees (including part-time and casual employees) are entitled to five days unpaid family and domestic violence leave each year.

    Family and domestic violence means violent, threatening or other abusive behaviour by an employee’s close relative that:

    • seeks to coerce or control the employee
    • causes them harm or fear.

    A close relative is:

    • an employee’s:
      • spouse or former spouse
      • de facto partner or former de facto partner
      • child
      • parent
      • grandparent
      • grandchild
      • sibling
    • an employee’s current or former spouse or de facto partner’s child, parent, grandparent, grandchild or sibling, or
    • a person related to the employee according to Aboriginal or Torres Strait Islander kinship rules.

    8. Public holidays

    Public holidays also form part of the NES and provides an entitlement for employees to be absent from work on a day or part-day that is a public holiday. Employees may also be requested to work on a public holiday.

    What days are public holidays?

    The following days are public holidays:

    • 1 January (New Year’s Day)
    • 26 January (Australia Day)
    • Good Friday
    • Easter Monday
    • 25 April (Anzac Day)
    • Queen’s birthday holiday (the day on which it is celebrated in a State or Territory or a region of a State or Territory)
    • 25 December (Christmas Day)
    • 26 December (Boxing Day)

    State and Territory governments may also declare other days or part-days as public holidays. For example, Easter Saturday is an additional public holiday in most states and territories.

    A full list of public holidays.

    What are reasonable grounds for requesting or refusing to work on a public holiday?

    In determining whether a request (or a refusal of such a request) to work on a public holiday is reasonable, the following must be taken into account:

    • the nature of the employer’s workplace (including its operational requirements) and the nature of the work performed by the employee
    • the employee’s personal circumstances, including family responsibilities
    • whether the employee could reasonably expect that the employer might request work on the public holiday
    • whether the employee is entitled to receive overtime payments, penalty rates, additional remuneration or other compensation that reflects an expectation of work on the public holiday
    • the type of employment (e.g. full-time, part-time, casual or shiftwork)
    • the amount of notice in advance of the public holiday given by the employer when making the request
    • the amount of notice in advance of the public holiday given by the employee in refusing the request
    • any other relevant matter.

    What payment is required for an absence from work due to a public holiday?

    If an employee is absent from work on a public holiday, the employer must pay the employee (other than a casual employee) the base rate of pay only for the employee’s ordinary hours of work on that day or part-day. However, an employee is not entitled to payment if they do not have ordinary hours of work on that public holiday.

    In many cases, modern awards and enterprise agreement contains specific provisions related to public holidays including relevant rates of pay.

    Summary

    Understanding and applying correct rates of pay and conditions and managing and granting leave applicable for employees are both critical to ensuring your business is legally compliant. Employers must make serious efforts in ensuring the employees of their business are correctly paid and have their entitlements managed.

    Needing advice and help?

    If you would like assistance with understanding the application of correct rates of pay, modern award terms or you would like your rates of pay reviewed and checked and any information about leave entitlements, the team of advisors at AB Phillips can assist you with practical advice and support.

    For support and assistance, please contact our team of advisors at AB Phillips, Monday to Friday between 9:00 am and 5:00 pm AEST by phone on 1300 208 828 or email advice@abphillips.com.au

    This article refers to employees engaged in the national Fair Work system. If you are not sure if your employees are in the national Fair Work system, check here  or contact us at AB Phillips for assistance.

    The national Fair Work system applies to employees of incorporated companies and all employees engaged in the State of Victoria, the ACT and the Northern Territory and to employees of incorporated companies in other states.

    Please note that the above information is provided as comment and should not be relied on as a substitute for detailed professional advice from AB Phillips or professional legal and or financial advice on any particular matter. Where you would like additional information and support about the content in this document please contact AB Phillips.

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