Leave Entitlements

Leave Entitlements

November 9, 2022 Uncategorized

One of the most common questions we are asked as HR Professionals is “What leave are my employees entitled to?”. 

All employees in the national workplace relations system are covered by the National Employment Standards (NES) regardless of the award, registered agreement or employment contract that applies.  The national workplace relations system is a collection of legislation that applies to most employees and employers in Australia. It includes the Fair Work Act 2009, the National Employment Standards, registered agreements and awards.

The leave entitlements in the NES include annual leave, personal/carers leave, compassionate leave, family and domestic violence leave, parental leave, community service leave and long service leave. 

Annual Leave

Full time and part time employees are entitled to 4 weeks of paid annual leave per year of service, based on their ordinary hours of work. 

Shiftworkers may be entitled to 5 weeks of paid annual leave per year of service, depending on the Award coverage or registered agreement.

Annual leave accumulates from the first day of employment, even if the employee is in a probationary period.

Unused annual leave rolls over from year to year.

Casual employees are not entitled to annual leave.

There are rules in awards and registered agreements for taking annual leave, annual leave in advance, cashing out annual leave, excessive annual leave.

Personal/Carers Leave

Full time and part time employees can take paid sick leave when they can’t work because of a personal illness or injury.

Full time and part time employees can take paid carer’s leave to care for or support a member of their immediate family or household who is sick, injured or has an unexpected emergency.

Sick and carer’s leave comes under the same leave entitlement – it is known as personal / carer’s leave.

Full time and part time employees are entitled to 10 days of paid personal/carers leave per year of service, based on their ordinary hours of work.

Personal/carers leave accumulates from the first day of employment, even if the employee is in a probationary period.

Unused personal/carers leave rolls over from year to year.

Employees have to provide notice to get paid for sick and carers leave.

Most awards and registered agreements do not allow personal/carers leave to be cashed out.

Unpaid Carers Leave

Employees, including casual employees, are entitled to 2 days unpaid carers leave each time an immediate family member or household member of the employee needs care and support because of:

• illness
• injury or
• an unexpected emergency

Full-time and part-time employees can only get unpaid carers leave if they don’t have any paid personal/carers leave left.

Compassionate Leave (also known as Bereavement Leave)

All employees are entitled to 2 days compassionate leave each time they meet the criteria.

Employees can take compassionate leave if:

• a member of their immediate family or household dies, or contracts or develops a life-threatening illness or injury
• a baby in their immediate family or household is stillborn
• they have a miscarriage
• their current spouse or de facto partner has a miscarriage

Employees can take compassionate leave for other relatives (for example, cousins, aunts and uncles) if they are a member of the employee’s household or if their employer agrees.

Employees don’t accumulate compassionate leave and it’s not a part of their personal/carers leave entitlement.  

Full-time and part-time employees receive paid compassionate leave, at the base pay rate for the ordinary hours they would have worked during the leave.

Casual employees receive unpaid compassionate leave.

Compassionate leave can’t be cashed out.

An employer can request evidence about the reason for compassionate leave (for example, a death or funeral notice or statutory declaration).  This request for evidence has to be reasonable.

Parental Leave

All employees are entitled to parental leave if they meet the eligibility criteria.

Parental leave entitlements include:

• maternity leave
• paternity and partner leave
• adoption leave
• special maternity leave
• a safe job and no safe job leave

Parental leave is leave that can be taken after:

• 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 up to 12 months of unpaid parental leave. They can also request up to an additional 12 months of leave.

Employee parents have a right to return to the job they had before going on leave, on their return to the workplace from parental leave.

There are additional entitlements for circumstances where an employee’s baby is stillborn or their child dies within the first 24 months of life.

There are different rules about when an employee can take unpaid parental leave for the birth or adoption of a child.

Employers may provide paid parental leave in addition to the Paid Parental Leave from the Australian Government.  Otherwise, parental leave is unpaid.

Note: Legislation has been proposed to increase the Government Paid Parental Leave from 18 weeks to 26 weeks over the next four years to 2026.

Family and Domestic Violence Leave

Note: An amendment to Fair Work Act 2009 has been passed by Parliament to replace the current entitlement in the National Employment Standards to:

• ten days of paid leave for full-time, part-time and casual employees
• extend the definition of family and domestic violence to include conduct of a current or former intimate partner of an employee, or a member of an employee’s household
• extend the entitlement to paid family and domestic violence leave to non-national system employees

Current entitlement in the NES

All employees are entitled to 5 days unpaid family and domestic violence leave each year of service.

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
• a person related to the employee according to Aboriginal or Torres Strait Islander kinship rules

Employees are entitled to the full 5 days from the day they start work.  The 5 days renews each 12 months but doesn’t accumulate from year to year if it isn’t used.

Employees can take the leave if they need to do something to deal with the impact of family and domestic violence and it’s impractical to do so outside their ordinary hours of work.

For example, this could include:

• making arrangements for their safety, or safety of a close relative (including relocation)
• attending court hearings
• accessing police services

The leave can be taken as single or multiple days.

An employer can ask their employee for evidence that shows the employee took the leave to deal with family and domestic violence. 

Employees covered by registered agreements, enterprise awards or state reference public sector awards may be entitled to other paid or unpaid entitlements in their award or agreement that they can access in these circumstances.

Community Service Leave

Employees, including casual employees, can take community service leave for activities such as voluntary emergency management activities or jury duty.

With the exception of jury duty, community service leave is unpaid. 

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.

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

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 has to be working to get long service leave (for example, after 7 years)
• how much long service leave the employee gets

In some states and territories long serving casuals are eligible for long service leave.

The state and territory long service leave laws don’t apply when there are long service leave entitlements in a federal pre-modern award that would have covered an employer and their employees before 1 January 2010.

Some Australian states and territories have legislation to provide employees in the security, community services, building and construction, coal mining, and contract cleaning industries with access to portable long service leave.

This means an employee keeps their long service leave entitlement even if they work on different projects for one or more employers.

Additional Entitlements

Additional leave entitlements and rules can be contained within awards, registered agreements, employment contracts and an organisation’s specific policies.

Definitions

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)

Immediate family also includes:

• the immediate family of the employee’s spouse or de facto partner (or former spouse or de facto partner)
• step-relations (for example, step-parent and step-child)
• adoptive relations

A household member is any person who lives with the employee.

Next steps

1. Create/review the leave policies within the organisation to ensure they cover the entitlements employees have under the NES
2. Train your managers on the leave entitlements
3. Review the entitlements contained in the payroll system to ensure compliance with the NES

If you would like assistance with developing or updating your leave policies, please reach out to HR On Demand. 

If you are considering a restructure of your organisation, please reach out to HR On Demand to discuss redundancies entitlements, including leave.

• Email Address: hrondemand@talentcodehr.com.au
• Phone: 1300 55 99 62
• Set up a meeting: this link