EMPLOYEE ENTITLEMENTS FOR PROVISION OF LEAVE
Overview
The NES (National Employment Standards) have minimum entitlements for permanent employees to receive leave.
These forms of leave are designed to help an employee deal with personal illness, caring responsibilities, family emergencies, family and domestic violence and the death or serious illness of close family members.
Sick & Carer’s Leave (also known as personal leave)
When can sick and carer’s leave be taken?
An employee can take paid sick leave when they can’t work/are unfit for work because of a personal illness or injury. This can include stress and pregnancy related illnesses.
An employee can take paid carer’s leave to provide care or support to a member of their immediate family or household who is sick, injured or has an unexpected emergency.
A member of immediate family means:
- Spouse or former spouse
- De facto partner or former de factor partner
- Child
- Parent
- Grandparent
- Grandchild
- Sibling, or a
- Child, parent, grandparent, grandchild or sibling of the employee’s spouse or de factor partner
This definition also includes step relations as well as adoptive relations.
Who gets paid sick and carer’s leave?
All employees except casuals are entitled to paid sick and carer’s leave. Casual employees are entitled to unpaid sick and carer’s leave.
How much paid sick and carer’s leave does an employee get?
Sick and carer’s leave comes under the same leave entitlement. It is also known as personal leave.
Employees get:
- 10 days each year for full time employees
- Pro rata of 10 days each year depending on their hours of work for part time employees.
How does paid sick and carer’s leave accumulate?
Full-time and part-time employees accumulate sick and carer’s leave progressively during a year of service. It starts from an employee’s first day of work and is based on the number of ordinary hours they work.
The balance at the end of each year carries over to the next year.
Sick and carer’s leave accumulates when an employee is on:
- paid leave such as paid annual leave and paid sick and carer’s leave
- community service including jury duty
- long service leave
Sick and carer’s leave does not accumulate when an employee is on:
- unpaid annual leave or unpaid sick and carer’s leave
- unpaid parental leave
- unpaid family and domestic violence leave
How much paid sick and carer’s leave can an employee take?
An employee can take as much paid sick or carer’s leave as they have accumulated if they are unfit for work due to illness or injury.
Long periods of sick leave / Protection from dismissal while on sick leave
Employees who are away from work temporarily due to illness or injury may be protected from being dismissed:
To be protected from dismissal during a temporary absence from work:
- The total time away due to illness or injury must be less than 3 consecutive months, or a total of less than 3 months over a 12-month period
- Employees can be taking paid, unpaid or a combination of both during their absence
- Employees need to provide evidence of their illness or injury
An employee is no longer protected from being dismissed (even if they provide evidence) if:
- The total length of their absence due to illness or injury is more than 3 consecutive months, or a total of more than 3 months over a 12-month period
- Over that period, they’ve only taken unpaid leave.
*Employees who take a period of sick leave that is paid the whole time are protected from dismissal regardless of how long they’re on leave.
Unpaid Carer’s leave
All employees, including casual employees are entitled to 2 days unpaid carer’s leave.
Employees get 2 days unpaid carer’s 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 carer’s leave if they don’t have any paid sick/carer’s leave left.
Taking unpaid carer’s leave
Unpaid carer’s leave can be taken:
- In 1 continuous period (eg. 2 working days in a row), or
- In separate periods as agreed between the employee and employer (eg. 4 half days may be taken in a row)
Compassionate /Bereavement Leave
All employees (including casual employees) are entitled to compassionate leave (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.
A member of immediate family means:
- Spouse or former spouse
- De facto partner or former de factor partner
- Child
- Parent
- Grandparent
- Grandchild
- Sibling, or a
- Child, parent, grandparent, grandchild or sibling of the employee’s spouse or de factor partner
This definition also includes step relations as well as adoptive relations.
Employees will be able to take compassionate leave for other relatives (eg. Cousins, aunts and uncles) if they are a member of the employee’s household, or if the employer agrees to this.
Amount of Compassionate leave
All employees are entitled to 2 days compassionate leave each time an immediate family or household member dies or suffers a life-threatening illness or injury.
The compassionate leave can be taken as:
- A single continuous 2-day period, or
- 2 separate periods of 1 day each, or
- Any separate periods the employee and employer agree.
An employee does not accumulate compassionate leave and it doesn’t come out of their sick or carer’s leave (or annual leave) balance. It can be taken at any time an employee needs it.
If an employee is already on another type of leave (eg. annual leave) and needs to take compassionate leave, the employee can use compassionate leave instead of the other leave.
Payment of Compassionate leave
Full-time and part-time employees receive paid compassionate leave and casual employees receive unpaid compassionate leave.
Full-time and part-time employees are paid at their base pay rate for the ordinary hours they would have worked during the leave.
Compassionate leave can’t be cashed out.
Notice and Evidence
An employee taking compassionate leave must give their employer notice as soon as they can (this may be after the leave has started). The employee must tell the employer of the period, or expected period, of the leave as soon as they know it.
An employer can request evidence about the compassionate leave (eg. death/funeral notice or statutory declaration) but the request must be reasonable. The employee may not be paid for the leave if they do not provide the requested notice.
Annual Leave
Annual leave (also known as holiday pay) allows an employee to be paid while having time off from work, and all employees (except for casual employees) get paid annual leave.
Full-time and part-time employees get 4 weeks of annual leave, based on their ordinary hours of work and it is paid at the employee’s base rate of pay for all ordinary hours worked.
How does annual leave accumulate?
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 including jury duty
- long service leave
Annual leave does not accumulate when an employee is on:
- unpaid annual leave or unpaid sick and carer’s leave
- unpaid parental leave
- unpaid family and domestic violence leave
Leave also does not accumulate for a period of annual leave that has been cashed out.
When can annual leave be taken?
Annual leave can be taken as soon as it is accumulated and does not have to be taken each year. It is up to each employer and employee to agree on when and for how long annual leave can be taken.
However, the employer must not unreasonably refuse an employee’s request to take annual leave. There is no minimum or maximum period of annual leave that can be taken.
An employee is not on Annual leave if the period during which an employee takes annual leave:
- Includes a day or part-day that is a public holiday
- Includes a period of any other leave (other than unpaid leave), or a period of absence from employment due to community service (eg. jury duty).
Direction to take annual leave / Excessive annual leave
An employer can generally direct an employee to take annual leave, but only if the requirement is considered reasonable. For example:
- the employee has an excessive annual leave balance (eg. 8 weeks of annual leave or more)
- the employer’s business is being shut down for a period (such as Christmas and New Year).
The needs of the employee and the employer need to be taken into consideration as well as the timing, and length of the period of notice given.
Can annual leave be cashed out?
An employer and employee may come to an agreement to cash out annual leave, however the following should always apply:
- The employee must retain at least 4 weeks annual leave (unless a smaller leave balance is agreed to by the employer
- There must be a signed, written agreement with their employer on each occasion that outlines the amount of leave being cashed out, the amount they will be paid and the date it will be paid
- The payment for the cashed out leave must be the same as what the employee would have bene paid if they took the leave
Family and domestic violence leave
An employee (including a casual employee) is entitled to five days of unpaid family and domestic violence leave each year.
Employees are entitled to the full five days from the day they start work. They don’t have to build it over time.
The five days renew each 12 months but do not accumulate from year to year if not used.
Employees can take the leave if they need to do something to deal with the impact of family and domestic violence and its impractical to do so outside of their ordinary hours of work
For example, this could include:
- Making arrangements for their safety, or safety of a family member (including relocation)
- Attending court hearings
- Accessing police services.
This leave doesn’t need to be taken all at once and can be taken as single or multiple days.
An employer and employee can also agree for an employee to take less than one day at a time, or for the employee to take more than five days.
Notice and evidence requirements
An employer can ask their employee for evidence that shows the employee took the leave to deal with family and domestic violence. If the employee doesn’t provide the requested evidence, they may not be granted the leave.
The evidence has to convince a reasonable person that the employee took the leave to deal with the impact of domestic violence
Types of evidence can include:
- Documents issued by the police
- Documents issued by a court
- Family violence support service documents, or
- a statutory declaration
Employers can ask employees to provide evidence for as little as one day or less off work.
Confidentiality
Employers have to take reasonable steps to keep any information about an employee’s situation confidential, when they receive it as part of an application for leave.
Employers need to be aware that any information about an employee’s experience of family or domestic violence is sensitive and if mishandled, it could have adverse consequences for their employee. Employers should work with the employee to discuss and agree on how the information will be handled.
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