Leave entitlements for casual employees are different to other employment types. Casual employees do not receive annual leave or other paid leave.
Unpaid leave is a leave entitlement of absence during which an employee takes time away from work without pay. During this time, the casual employee usually keeps his job and may also maintain his usual benefits. This is often called job-protected leave.
Unpaid leave is given to casual employees who wish to take extra days from work beyond their paid time off, either as a mandatory employee benefit or as a voluntary benefit.
As an employee, you need to be familiar with these entitlements to claim benefits and enforce your rights.
In this article, Prosper Law solicitor and employment lawyer, Micaela Diaz, explains leave entitlements for casual employees. This article also explains what casual employees can do if they are not given their proper leave entitlements.
How much leave does a casual employee have?
Leave entitlements mean any time away from work. It is often described as the time to which an employee is entitled by law or company policy.
Under the Fair Work Act 2009 (Cth), a casual employee is entitled to a certain number of types of leave for absences during his employment. Leave entitlements for casual employees are different to permanent employees.
The most common leave entitlements available to casual employees in Australia are:
- Carer’s leave
- Compassionate leave
- Family and domestic violence leave
- Community service leave
Let’s discuss all leave entitlements for casual employees in detail.
Unpaid Carer’s Leave
Carer’s leave (also known as personal leave) allows employees to take time off to deal with illness, caring responsibilities, and family emergencies.
Amount of carer’s leave for casual employees
Casual employees receive two days of unpaid carer’s leave each time an immediate family member or household member of the employee requires care and support due to:
- illness (including stress and pregnancy-related illnesses)
- an injury; or
- an emergency.
Unpaid carer’s leave may be taken:
- in one continuous period (e.g., two consecutive workdays); or
- in separate periods as agreed upon by the employee and employer (e.g., four half days could be taken in a row).
Accumulation of Carer’s Leave for casual employees
For casual workers, carer’s leave is not accumulated. Therefore, the balance at the end of each year is not carried over to the next year.
The benefit of accumulated carer’s leave at the end of employment for casual employees
Casual employees don’t receive payment from the employer for accrued caregiver leave at the end of employment.
Notice Period to use sick leave for casual employees
There is no fixed period of notice that an employee must give before taking a carer’s leave. However, an employee should give as much notice as possible and try to estimate how long he expects to be away from work.
Requirement of evidence to use sick leave for casual employees
Employers have the right to request evidence of the need for time off. Generally, employers require:
- a medical certificate;
- doctor’s note; or
- statutory declaration.
However, the type of evidence also depends on company policy. For example, some companies require a medical certificate for one day of leave or after two days.
Employees should check with their supervisors or HR to determine what applies to them.
Unpaid Compassionate Leave
Compassionate leave (also known as bereavement leave) is the time employees are given due to a death in the family or a loved one. The leave allows employees to grieve, make arrangements, and attend a funeral or service.
Application of compassionate leave for casual employees
Employees may take compassionate leave when:
The National Employment Standards govern eligibility for compassionate leave. Awards, enterprise agreements, and other registered agreements may provide for additional compassionate leave entitlements.
Amount of compassionate leave for casual employees
Casual Employees are entitled to two days of compassionate leave each time they meet the criteria. They may take compassionate leave as:
- a single continuous period of two days;
- two separate periods of one day each;
- any separate periods as agreed upon with the employer.
Accumulation of compassionate leave for casual employees
Casual employees don’t accumulate compassionate leave, and it’s not part of their sick and carer’s leave entitlement. Employees may take compassionate leave whenever they need it.
Payment of compassionate leave for casual employees
Unlike full-time and part-time employees, casual employees do not receive pay for compassionate leave.
Notice Period to use compassionate leave for casual employees
Casual employees must inform their employer of notice for compassionate leave as soon as possible (this can be done after the leave has begun). Moreover, employees must tell the employer how much leave they are taking or expect to take and when.
Evidence to use compassionate leave for casual employees
An employer may require evidence of the reason for compassionate leave (e.g., a death or funeral notice or statutory declaration). This request for evidence must be reasonable. If the casual employee fails to provide the requested notice or proof, they may not be granted compassionate leave.
Unpaid Family & Domestic Violence Leave
Under the Fair Work Act 2009 (Cth), domestic violence is defined as violent, threatening, or other abusive behaviour by a close relative of an employee. It occurs when the conduct is intended to coerce or control the employee and cause the employee harm or fear.
Family and domestic violence leave allow employees to be absent from work to deal with problems or effects of domestic violence. Employees can deal with violence against themselves or their immediate family members when it is not possible to do so outside of scheduled work hours.
How casual employees can apply for family and domestic violence leave
Casual employees are eligible for family and domestic violence leave. Leave entitlements for casual employees recognise that domestic violence can occur against both permanent and casual employees.
The entitlement to unpaid leave for family and domestic violence comes from the National Employment Standards. It also applies to employees covered by an award.
However, the following types of employees are not eligible for family and domestic violence leave:
- Employees covered by enterprise awards and state reference public sector awards
- Employees covered by enterprise and other registered agreements
- Award and enterprise agreement-free employees
Amount of Family and Domestic Violence leave for casual employees
Casual employees are entitled to five days of unpaid leave each year for family and domestic violence reasons.
Accumulation of Family and Domestic Violence leave for casual employees
Family and domestic violence leave entitlements are not renewable from year to year. Therefore, the leave is reset on the anniversary of its commencement.
Changes in Family and Domestic Violence leave for casual employees
The leave may change under the proposed Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022, which was introduced to Parliament in July 2022.
The Bill entitles employees to 10 days of paid family and domestic violence leave in 12 months. It will apply from:
- February 2023: Employees (except for small business employees) will be eligible immediately upon starting work;
- August 2023: Employees in small businesses (less than 15 employees) will be eligible for paid leave.
Evidence to use Family and Domestic Violence leave for casual employees
An employer may require an employee to provide evidence that the employee took the leave to deal with family and domestic violence. If the employee fails to provide the necessary proof, the employee may not get family and domestic violence leave.
The evidence must convince a reasonable person that the employee took the leave to cope with the effects of family and domestic violence.
Types of evidence can include:
- documents issued by the police service
- documents issued by a court
- family violence support service documents
- a statutory declaration
Employers must take reasonable steps to keep confidential all information about an employee’s situation when they receive it as part of a leave request. This includes information about the employee who is giving notice of leave and any evidence they provide. Employers are not prevented from disclosing information if:
- required by law; or
- necessary to protect the life, health, or safety of the employee or another person.
Employers must know that any information about an employee’s experience with family and domestic violence is sensitive. If information is mishandled, there could be negative consequences for the employee. Employers should discuss and work with their employees on how to handle this information.
Community Service Leave
Community Service Leave is a time off program that provides employees leave to perform volunteer services, such as volunteer activities in emergency management or jury duty. Except for jury duty, community service leave is unpaid.
Amount of Community Service Leave
Employees are entitled to take community service leave while on duty and for reasonable travel and rest. There is no cap on the number of days of leave an employee may take for community service.
How to use Community Service Leave
An employer may require an employee to present evidence to request community service leave. An employee may present any evidence that establishes that he or she is eligible for community service leave.
When can a casual employee use their leave?
Broadly, there are three categories of unpaid leave:
- Unpaid leave that you have to grant by law;
- Unpaid leave that you have to consider by law; and
- Unpaid leave that is at the discretion of the employer.
An employee must be allowed to take unpaid leave in the following circumstances:
- Selection for jury duty;
- If they are a magistrate, reasonable time off to perform their duties;
- to attend to an emergency involving a family member; and
- to spend time with a child under 18 (known as parental leave), subject to certain conditions being met.
Unpaid leave that employers must consider by law:
- A request for training or study under section 63D of the Employment Rights Act 1996.
Unpaid leave that is entirely discretionary:
- A career break or sabbatical;
- Appointments with the doctor or dentist (unless the employee is pregnant, in which case you must provide paid time off for prenatal appointments);
- Compassionate leave; and
- Bereavement leave.
What happens if a casual employee is not allowed to use their leave?
In Australia, casual employees can take different types of leave when they need it. These are essential leave entitlements that employers grant to most employees in Australia.
However, the use of leave entitlements by employees can disrupt business operations. Sometimes, there are situations where the employer has the right to refuse the employee’s leave request. However, such a refusal must be based on reasonable grounds and must not be unlawful.
Valid Circumstances for Refusal of Leave Entitlements
Here are some of the valid circumstances for refusal of leave entitlements:
Refusal on the ground of genuine, sound business reason
An employer may deny a leave request if there is a “genuine, sound business reason.” Therefore, the denial must not be unreasonable. And what constitutes an unreasonable denial depends on many factors.
Relevant factors may include:
- The time for which the employee wants to take leave;
- The business needs of the company during the leave period;
- Whether the leave would cause harm to the business; and
- Whether the employee gave timely notice of the leave.
Refusal on the ground of Block Out Period
Businesses often have a period known as a “block out period,” during which they deny any leave. These block out periods usually coincide with major holidays when companies are busiest.
In Stevens v Horsley Park Supermarket Pty Ltd  FWC 4626, the Fair Work Commissioner found that block-out periods during Easter, Christmas, and New Year are generally reasonable for retail businesses. However, there are exceptions, and the relevant factors for unreasonable reasons for refusal must still be considered.
Refusal on the ground of short notice served
The most obvious reason for denying a request is an employee’s unreasonably short notice, such as a few days’ notice of leave for several weeks. However, an employer must not unreasonably deny an employee’s leave request.
In Stevens v. Horsley Park Supermarket, an employee was fired for failing to show up for work after the employer refused to approve her request for annual leave.
The FWC found that it was unreasonable for the employer to delay deciding on the request because adequate notice had been given of the absence. The delay resulted in the employee having to pay a $4,000 fee for international travel.
The employer’s unreasonable refusal meant that the employee’s absence from work did not constitute misconduct. Therefore, there was no just cause for the employee’s dismissal, and the claim for unfair dismissal was well-founded. The plaintiff did not seek reinstatement and was awarded compensation for $13,400 (16 weeks’ wages).
For more information on reasonable grounds for refusal of leave requests, refer to the Modern Award applicable to employees or other agreements such as enterprise agreements, individual flexibility arrangements, policies, or procedures in the employee’s workplace. Therefore, instances of unreasonable denial will vary from case to case.
What to do when an employer refuses a request for leave
Employers may not understand leave entitlements for casual employees. Employers may deprive their employees of leave entitlements contrary to their legal obligations. Therefore, employees need to know what steps to take if they do not receive their leave entitlements.
Review employment terms & policy document
Employees must review their employment terms to make sure they are entitled to the holiday. Then, they must review the company’s policy document (if any) to verify the general reasons for refusal given by the employer.
If the employee is entitled to the requested leave, or if the reason for the leave request is not a reason for denial in the company policy, the employee must make an appointment and present their complaint to their employer or representative. The employee may request that his/her employer provide a written explanation for denying the leave entitlement.
Although the acceptance of leave requests is at the discretion of the employer, it is expected that reasons will be given for the denial. This means that a company cannot simply say no. The employer must explain why the leave request was rejected.
Contact an employment lawyer for a confidential discussion
Australia has strict rules and regulations for the treatment of employees. It is unlawful for an employer to deny leave to an employee if the leave complies with the requirements.
Any unlawful denial of leave entitlement by an employer may result in a claim by the employee for unfair dismissal. If an employee believes that their employer has wrongfully denied their request, it may be worth contacting an employment lawyer for further advice.
How can Prosper Law help?
Prosper Law is Australia’s online law firm. We provide legal advice to businesses and individuals across Australia. Our areas of legal practice include contracts, eCommerce, publishing, legal counsel and employment law.
If you need to talk to an employment lawyer, get in touch today.
Contact the team at Prosper Law today to discuss how we can provide you with employment advice for a fixed fee or at affordable hourly rates.
Micaela Diaz | Solicitor
P: 1300 003 077
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