By April Zahra- Lawyer, Slater and Gordon Lawyers
This article will set out:
Source of leave entitlements
In Australia, all employees in the national workplace relations system are covered by the National Employment Standards (NES). The NES are 10 minimum employment entitlements contained in the Fair Work Act 2009 (Cth) (FW Act) that must be provided to all employees. An employee’s entitlements to annual leave and personal leave are protected by the NES.
In addition to the NES, an employee’s wages and entitlements may be governed by an industry-based Award or Enterprise Agreement. The terms in an industry-based Award or Enterprise Agreement cannot exclude entitlements under the NES or provide for entitlements that are less favourable than those under the NES. However, they can provide for certain rules regarding how these entitlements apply in practice and can supplement the NES with additional entitlements.
Similarly, an employee’s contract of employment may contain leave entitlements that are additional to those in the NES.
What are my annual leave entitlements?
In accordance with section 87 of the FW Act an employee (other than a truly causal employee) is entitled to receive 4 weeks of paid annual leave for each year of service with their employer. A shiftworker employee (as defined by a Modern Award or Enterprise Agreement or the FW Act) is entitled to receive 5 weeks’ paid annual leave for each year of service.
Your entitlement to annual leave accrues progressively during a year of service according to your ordinary hours of work and accumulates from year to year. These annual leave entitlements accumulate on a pro rata basis for part time employees.
Depending on the terms of any industry-based Award or Enterprise Agreement that covers your employment, you may also be entitled to receive payment of annual leave loading for a period of annual leave, in addition to your ordinary pay.
When can my boss force me to take annual leave?
In general, the FW Act says that an employer and employee must agree on the taking of annual leave. An employer can only direct an employee to take annual leave in certain situations defined by an Award or Enterprise Agreement – and in all cases the direction must be reasonable. For instance, your employer may direct you to take annual leave if their business is closed during the Christmas and New Year period, or if you have accumulated excess annual leave.
In another example, clause 26 of the Health Professional and Support Services Award 2020 governs annual leave entitlements for employees in the health industry who are covered by the Award. The Award provides that where an employer temporarily closes a dental or medical practice, an employee may be directed to take paid annual leave during part of, or all of this shutdown period, provided the direction is reasonable.
That Award also provides guidance about the circumstances in which an employee may be directed to take leave when they have an excessive leave accrual. For the purposes of the Award, an employee is considered to have an excessive leave accrual when their leave balance is in excess of 8 weeks (or 10 weeks for a shiftworker). In such circumstances, the Award provides that an employer and employee may confer with each other to genuinely reach an agreement about how to reduce or eliminate the employee’s excessive leave balance. If an agreement cannot be reached, the Award allows for an employer to direct an employee to take one or more periods of annual leave, provided that the employee is left with a leave balance of at least 6 weeks and adequate notice is given as to the period of leave.
What can I do if my annual leave request is not approved?
Generally, you will need to request permission from your employer before you take annual leave. Pursuant to section 88(2) of the FW Act, an employer must not unreasonably refuse to agree to a request to take paid annual leave. Factors taken into account in determining whether the refusal of any request is unreasonable might include:
It is, for example, less likely to be considered unreasonable for an employer to refuse a leave request during an extremely busy period where all/most employees are essential to the operation of the business at the time.
In most cases, your request for annual leave should be approved, especially if you have provided adequate notice. If you believe your employer has unreasonably refused your request, you should contact your Union, HACSU.
What are my personal leave entitlements?
The NES provides for both paid and unpaid personal leave entitlements. Pursuant to section 96 of the FW Act, an employee (other than a casual) is entitled to receive 10 days of paid personal/carer’s leave for each year of service. This entitlement accrues progressively during a year of service according to your ordinary hours of work and accumulates from year to year.
You can utilise your personal leave as sick leave for when you are unable, or unfit, to attend work because of personal illness or injury.
Similarly, you can access paid leave if you need to take time off to care for an immediate family or household member who is sick or injured, or to help during an unexpected emergency. This type of leave is commonly known as carer’s leave but forms part of your personal leave balance.
For the purposes of personal leave, an immediate family member is a:
Requirements for utilising personal leave
You will need to provide notice to your employer that you are going to take sick or carer’s leave as soon as possible, even if it is after the leave has started. Depending on your workplace policies and the terms of any applicable industry-based Award or Enterprise Agreement, you may be asked by your employer to provide a medical certificate or other evidence that your absence was due to illness/injury or because of carer responsibilities.
An Award or Enterprise Agreement may also set out additional entitlements for paid sick or carer’s leave. Your Award or Enterprise Agreement might also set out different species of personal leave available to you for example, family violence leave or gender transition leave.
Unpaid sick leave
All employees, including casuals, are entitled to two days of unpaid carer’s leave. You are entitled to two days of unpaid carer’s leave each time an immediate family member or household member needs care and support because of illness, injury or an unexpected emergency.
Can my employer direct me to take sick leave?
Employers and employees alike have health and safety obligations that can prevent sick individuals from attending the workplace. These obligations have become increasingly stringent, especially in the health services industry, as a result of the COVID-19 pandemic. Accordingly, it may be possible for your employer to direct you not to attend work if you are sick. However, your employer can only make this direction if it is lawful and reasonable and if it is based on factual information that links to health and safety.
If you are directed to stay at home in these circumstances, you should be paid. Employers are not entitled to stand employees down without pay in these circumstances, nor to require an employee to use their annual leave. A casual employee should request special paid leave from their employer if required to stay home from work due for reasons associated with COVID-19.
What do I do if I’m concerned about my leave entitlements?
Your Union, HACSU, should be your first contact point. This might mean reaching out to your site delegate, or your local area organiser. The Union will be able to assist you with clarifying the terms and conditions of your specific leave entitlements.
In the event you believe there may be a dispute with your employer about your leave entitlements, the Union will also assist you in working out whether there are grounds for initiating a dispute or some alternative legal claim (such as adverse action or discrimination).
You can read more about your leave entitlements on the Fair Work Commission website.
About the Author: April Zahra is a lawyer working in our Melbourne Industrial and Employment Law team. April previously worked at the Young Workers Centre at Victorian Trades Hall, advocating on behalf of vulnerable workers who were getting the rough end of the stick from their boss. April supports the North Melbourne Football Club, is an avid Star Wars fan, and advocates passionately that Nippy’s is the best chocolate milk drink ever produced.
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