Employment
The Fair Work Act: A Guide for Employers
The Fair Work Act 2009 is the cornerstone of employment law in Australia. It provides a framework for the rights and obligations of both employers and employees. Whether you are
Australia has some of the world’s most generous leave entitlement policies for full-time and part-time employees. 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 employee leave entitlements for full-time and part-time employees and explains what they can do if they cannot exercise their rights properly.
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), an employee is entitled to a certain number of paid leave types for absences during employment.
The most common leave entitlements available to full-time and part-time employees in Australia are:
Let’s discuss all leave entitlements in detail.
Annual leave (also known as holiday pay) allows full-time and part-time employees to receive their pay while they are off work.
The entitlement to annual leave comes from the National Employment Standards. Awards, enterprise agreements, and other registered agreements cannot offer less than the National Employment Standards. However, they may provide employees with more annual leave.
All full-time and part-time employees get a minimum of four weeks of annual leave each year. Similarly, a part-time employee gets four weeks equivalent to their work week.
Jake is a part-time employee who works 20 hours per week for one year. He will accumulate 80 hours of annual leave (equivalent to four weeks of work).
Annual leave accumulates as soon as the employee begins his employment with the employer. The employee may use the annual leave at their discretion. In fact, the employee may carry over leftover annual leave from year to year.
Annual leave accumulates when an employee is on:
Annual leave does not accumulate when the employee is on:
Every business has its own business needs. Therefore, employees can apply for annual leave according to the business policy.
Usually, employers give all their employees leave details on how much leave they can take at any one time. There may also be certain times they cannot take leave based on how the employer’s business operates.
An employer’s business may have a shutdown period over Christmas/New Year. Employees must understand this. An employee cannot take annual leave if the employer has provided negative leave for this period. This is usually found in an annual leave policy.
Sick and carer’s leave (also known as personal or personal/carer’s leave) allows employees to take time off to deal with illness, caring responsibilities, and family emergencies.
Full-time workers in Australia can take ten days of sick leave a year. Whereas Australian part-time employees are also entitled to sick leave. However, their sick leave is prorated.
Like annual leave, the unused leave is rolled over from year to year.
Example: sick leave for full-time employees
Jake takes only five sick leave days in one year. The following year, he receives 15 sick leave days.
Full-time and part-time employees do not receive payment of accrued sick leave upon termination of employment.
Example: sick leave at the end of employment
Jake took only five sick days one year and accumulated 15 sick days the next year. That year, his employment ended and he still had six days of unused sick leave. His employer won’t pay him the accumulated sick leave.
Employees may need to provide proof when they take sick leave. However, the type of proof 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 managers to find out what applies to them.
Typically, employers request the following documents:
Compassionate & 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.
Employees may take compassionate leave when:
The National Employment Standards govern eligibility for compassionate and bereavement leave. Awards, enterprise agreements, and other registered agreements may also provide additional entitlements to compassionate leave.
Employees are entitled to two days of compassionate leave each time they meet the criteria. Employees may take compassionate leave as:
Compassionate leave does not accumulate as it is not part of the entitlement to sick and carer’s leave entitlement. Employees may take compassionate leave any time they need it.
If an employee already has another type of leave (e.g., annual leave) and needs to take compassionate leave, they may take compassionate leave in place of the other leave.
Full-time and part-time employees receive paid compassionate leave. They receive payments equal to their base salary for the ordinary hours they would have worked during the leave.
However, the payment does not include separate entitlements such as incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates.
The employer may require reasonable evidence to allow compassionate and bereavement leave to employees. Examples of evidence include a death or funeral notice.
Under the Fair Work Act 2009 (Cth), domestic violence is defined as violent, threatening, or other abusive behavior by an employee’s close relative which seeks to coerce or control the employee and causes them harm or fear.
Family & Domestic Violence leave allows employees to take time away from work to deal with issues or impacts of domestic violence against themselves or their direct family when it is not possible to do so outside their scheduled work hours.
Full-time and part-time employees are eligible for family and domestic violence leave. However, the following types of employees are not eligible for family and domestic violence leave:
Full-time and part-time employees may take up to five days of unpaid leave in 12 months. The leave is reset on its commencement date anniversary. Family and domestic violence leave are therefore not renewable from year to year.
The leave may change under the proposed Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022, 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:
Some companies may provide for paid, or unpaid family and domestic violence leave entitlements in their employment contracts or workplace policies.
Leave and compensation entitlements depend on the employment contract or policy. If an employment contract or workplace policy provides less than the minimum entitlement in the NES, the NES entitlement still applies.
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 be approved for 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:
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:
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.
Example: Workplace policies about family and domestic violence leave
Jake is entitled to 5 days of unpaid leave each year under the NES. His employer also has a family and domestic violence leave policy that entitles employees to 2 days of unpaid leave each year.
The employee’s entitlement under the NES is greater than that of his employer. Therefore, Jake is entitled to five days of family and domestic violence leave each year.
Community Service Leave is a time off program that provides leave to employees to perform volunteer services, such as voluntary emergency management activities or jury duty.
Except for jury duty, community service leave is unpaid.
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.
Employers may require an employee to give evidence to seek community service leave. An employee may provide any evidence that proves he or she is entitled to community service leave.
Full-time and part-time employees get long service leave after a long period of working for the same employer.
The entitlement of most employees to long service leave is derived from state or territory. These laws specify:
Here’s the long service leave agency of each state or territory to find out about long service leave entitlements:
Various types of leave for full-time and part-time employees in Australia allow employees to take time off from work when they need it. All of these are essential leave entitlements that employers grant to most employees in Australia.
The use of leave entitlements by employees can disrupt business operations. There are situations where the employer has the right to deny the employee leave request. However, such a denial must be based on reasonable grounds and must not be unlawful.
Here are some of the valid circumstances for refusal of leave entitlements:
The employer may refuse a request for leave if there is a “genuine, sound business reason.” The denial must not be unreasonable. What constitutes an unreasonable denial depends on many factors.
Relevant factors may include:
Companies often have a period known as a “block out period” during which they refuse annual leave. These periods usually coincide with major holidays when businesses are busiest.
In Stevens v Horsley Park Supermarket Pty Ltd [2017] FWC 4626, the Fair Work Commissioner found that block out periods during Easter, Christmas, and New Year are generally reasonable for retail businesses. However, exceptions apply, and the relevant factors for unreasonable grounds of refusal still need to be considered.
An employer may refuse a request for leave if the employee has no accrued leave.
For example, if an employee has already taken four weeks of leave in the year and has not accrued any additional hours. The employer may grant the unpaid employee leave or allow the employee’s entitlement to fall into a negative leave balance.
However, employees have no obligation to approve “leave in advance” before it accumulates.
The most apparent reason for denying a request is that an employee provides unreasonably short notice, for example, 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 making a decision on the request because adequate notice had been given of the absence. The delay resulted in the employee having to pay a late change fee of $4,000 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 applicant did not seek reinstatement and was paid $13,400 (16 weeks’ wages).
For more information on reasonable grounds for refusal of leave requests, see the Modern Award that applies 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.
Many employers deprive employees of their leave entitlements without a legitimate reason. Therefore, employees need to know what steps to take if they are deprived of their leave entitlements.
Employees must foremost review their employment terms to ensure they are entitled to the holiday. Then, they must review the company’s policy document (if any) to check the general reasons for refusal given by the employer.
If the employee is entitled to the requested leave entitlement 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 can request that their employer provide a written explanation of the reason for the refusal of 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. It means that a company cannot simply say no. The employer must explain why the leave request was denied.
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 their employer has wrongfully denied their request, it may be worth contacting an employment lawyer for further advice.
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.
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