What is leave?
Employees can take leave for many reasons, including to care for sick family members, because of personal injury or illness, or to go holiday. It is always important to understand the rights you have as an employee. However, navigating the different types of leave available to you can be hard, especially due to the diverse nature of employment. Employment contracts, awards, or registered agreements can provide for other leave entitlements, so long as they are not less than the National Employment Standards (NES).
We have outlined the main types of leave available to part and full-time employees in Australia below
Sick & Carer’s Leave
According to the NES, sick and carer’s leave allows an employee to take time off to help them deal with personal illness and family emergencies. All employees (except casuals) are entitled to paid sick and carer’s leave. The yearly entitlement is based on an employee’s ordinary hours of work. Full-time employees receive 10 days per year, and part-time employees’ 10 days pro-rata – meaning their sick and carer’s leave is proportional to the hours they work each week.
Reasons for Sick and Carer’s Leave
- Personal illness or injury (including stress and pregnancy related illnesses); and/or
- To provide support to a member of their immediate family or household who is sick, injured, or has an emergency.
Who classifies as family or a household member?
A household member is any person who lives with the employee. An immediate family member is classified as either:
- a spouse or former spouse;
- de facto partner or former de facto partner;
- child, parent, grandparent, grandchild, or sibling (related to the employee or the employee’s spouse/de facto partner);
- Stepfamily members, (including stepparents and stepchildren); and
- Adoptive family members.
An employee must be paid at least their base rate of pay for their ordinary hours of work whilst on personal/career’s leave, unless their Award, enterprise agreement, or contract provides a greater entitlement.
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).
Apart from 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 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), the period or expected period of absence. An employer may request an employee who has given notice, to provide evidence that they’re entitled to community service leave.
All employees (except for casual employees) get paid annual leave. Full-time and part-time employees get four weeks of annual leave, based on their ordinary hours of work. Annual leave accumulates from the first day of employment (even if an employee is in a probation period). Annual leave must be taken at a time that is mutually agreed by both the employee and the employer.
The leave accumulates gradually during the year and any unused annual leave will roll over to the following year. Annual leave still accumulates when an employee is on paid leave such as paid:
- annual leave;
- sick and carer’s leave;
- community service leave; and
- long service leave.
However, annual leave does not accumulate when the employee is on unpaid annual leave. An employee does not accumulate annual leave while being paid by the Paid Parental Leave Scheme, if the person is taking unpaid leave from their employer at this time.
Leave does not accumulate for a period of annual leave that has been cashed out.
Parental leave can be taken when an either employee gives birth, an employee’s spouse or de facto partner gives birth, or 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; and
- special maternity leave.
From 1 July 2020, eligible employees can split their Parental Leave Pay (PLP) so they take it over 2 periods within 2 years. Employees are able to claim PLP for 1 set period and 1 flexible period. The first period of PLP is available for up to 12 continuous weeks, within 12 months of the birth or adoption of a child. The second period of PLP is flexible and available for up to 30 days, usually starting after the first period ends and finishing within 24 months of a child’s birth or adoption.
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 have or will have responsibility for the care of a child.
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, or 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.
Long Service Leave
An employee gets long service leave after a long period of working for the same employer. If you have been working for the same employer for 10 years you are entitled to 2 months (8.67 weeks) paid leave, to be paid at your ordinary gross weekly wage under the NSW Long Service Leave Act 1955 (the Act).
Family and Domestic Violence Leave
Family and domestic violence means violent, threatening, or other abusive behaviour by a person’s close relative that seeks to coerce or control the person or causes them harm or fear.
All industry and occupation awards include unpaid family and domestic violence leave. All employees (including part-time and casual employees) are entitled to 5 days unpaid family and domestic violence leave each year.
Some businesses may provide paid or unpaid family and domestic violence leave entitlements in their employment contracts or workplace policies. The amount of leave and pay entitlements will depend on the contract or policy. An employment contract or workplace policy must provide for the minimum entitlements in the NES.
The award entitlement is for the same amount of leave as the entitlement in the National Employment Standards. 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.
How does leave accumulate for part-time employees who work irregular hours?
Annual leave and sick and carer’s leave accumulate on the basis of ordinary hours of work. If you work part-time and irregular hours, you must work out your ordinary hours by:
- calculating the total number of hours worked over the last 4 weeks
- divide by 4
If you worked less than four weeks, complete steps one and two using the period worked, ie.:
- calculating the total number of hours worked over X period
- Divide by X
How does leave accumulate for pieceworkers?
Pieceworkers and commission only employees still accumulate annual leave and sick and carer’s leave on the basis of ordinary hours worked. Leave ie paid at the employee’s minimum hourly rate, which is calculated as follows:
- Total amount earned by the employee over X period
- Divide the total amount by total number of hours worked in X period
Can you take annual leave in advance?
Some awards and registered agreements allow employees to take annual leave in advance. This must be agreed to by the employer in writing. This agreement must:
- Be signed by both employer and employee;
- Stipulate the amount of annual leave being taken in advance; and
- Stipulate the date the leave will start.
Can your employer make you take annual leave?
Yes. An employer can direct an employee to take annual leave where the award or registered agreement allows it, and the requirement is reasonable.
This can occur when the business is being closed down for a period (ie Christmas and New Year), or where an employee has excessive annual leave accrued.
Can annual leave be cashed out?
Some awards and registered agreements allow for this. However, in all cases:
- The employee must retain at least 4 weeks annual leave;
- There must be a signed written agreement; and
- The payment must be the same as leave accrued.
If you are in a dispute with your employer, or having other workplace issues, please contact us so we can assist.