other leave entitlements under NES

Employees may be entitled to paid or unpaid leave, including public holidays, sick leave, personal/carer’s leave, compassionate leave or community service leave.

public holidays

Employees (except casual employees) are entitled to a paid day holiday, except where reasonably requested to work. They should be paid at least their base pay for the hours worked. Awards, enterprise agreements and other registered agreements may provide entitlements for working on public holidays.

 As well as national public holidays, each state has its own public holidays.

sick leave

Sick leave is a type of personal leave under the National Employment Standards (NES). Employees can take sick leave when they cannot attend work due to illness or injury. Full-time employees are entitled to ten days of paid personal leave (for sick and paid carer’s leave) per year. Part-time employees receive a pro-rata entitlement to sick leave based on the number of hours they work.

Paid personal leave accumulates from year to year and is carried over into future years. The only time paid personal leave does not accumulate is if an employee is on unpaid leave – but it continues to accumulate during paid holiday leave and paid sick leave. To calculate personal leave entitlements, including sick leave, under the NES, use the leave calculator at www.fairwork.gov.au/leave

It’s important to be aware that some modern awards, enterprise awards and enterprise agreements go beyond the NES in this respect. To access and check your modern award for leave entitlements, you can use the award finder at www.fairwork.gov.au/awards/award-finder

cashing out sick leave

Employees covered by an award or agreement (including transitional award or agreement based instruments), can cash out of paid personal or carer’s leave (such as sick leave) as permitted if all of the following apply:

the award or agreement allows it

there is a separate agreement in writing on each occasion that leave is cashed out

the employee retains a balance of at least 15 days of untaken paid personal/carer’s leave

the employee is paid at least the full amount that would have been payable had the employee taken the leave that the employee has cashed out.

You must not exert undue influence or pressure on an employee to cash out a period of personal/carer’s leave. An employee not covered by an award or agreement is not able to cash out paid personal/carer’s leave.

unpaid carer’s leave

Employees (including casual employees) are entitled to two 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.

Find out who is an immediate family or household member on the Fair Work Ombudsman’s Sick and Carer’s Leave page (www.fairwork.gov.au/leave/sick-and-carers-leave).

taking unpaid carer’s leave

Unpaid carer’s leave can be taken:

in one continuous period (e.g. 2 working days in a row) or

in separate periods as agreed between the employee and employer (e.g. 4 half-days could 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.

Immediate family is an employee's:

spouse or former spouse

de facto partner or former de facto partner

child

parent

grandparent

grandchild

sibling

child, parent, grandparent, grandchild or sibling of the employee's spouse or de facto partner (or former spouse or de facto partner).

This definition includes step-relations (e.g. step-parents and step-children) as well as adoptive relations.

Employees will be able to take compassionate leave for other relatives (e.g. cousins, aunts and uncles) if they are a member of the employee's household, or if the employer agrees to this. And finally, there are those who wish to see compassionate leave extended pet owners, following a trend that is currently finding traction in the UK.

amount of compassionate leave

All employees are entitled to two 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 two day period, or

two separate periods of one day each, or

any separate periods the employee and the employer agrees.

An employee does not accumulate compassionate leave and it doesn't come out of their sick and carer's leave (or annual leave) balance. It can be taken any time an employee needs it.

If an employee is already on another type of leave (e.g. annual leave) and needs to take compassionate leave, the employee can use compassionate leave instead of the other leave.

payment for 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. This doesn't include separate entitlements such as incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates. 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.

An employer can request evidence about the reason for compassionate leave (e.g. a death or funeral notice or statutory declaration). This request for evidence has to be reasonable. If the employee doesn't provide the requested notice or evidence they may not get compassionate leave.

An award or registered agreement can include terms about the kind of evidence that an employee must provide to get compassionate leave.

community service leave

Employees, including casual employees, can take community service leave for certain activities such as:

voluntary emergency management activities

jury duty (including attendance for jury selection).

With the exception of jury duty, community service leave is unpaid. To find out more, visit the Fair Work Ombudsman’s Jury Duty page (https://www.fairwork.gov.au/leave/community-service-leave/jury-duty).

voluntary emergency management activity

An employee engages in a voluntary emergency management activity if:

the activity involves dealing with an emergency or natural disaster

the employee engages in the activity on a voluntary basis

the employee was either requested to engage in an activity, or it would be reasonable to expect that such a request would have been made if circumstances had permitted

the employee is a member of, or has a member-like association with a recognised emergency management body.

recognised emergency management body

A recognised emergency management body is:

a body that has a role or function under a plan that is for coping with emergencies / natural disasters (prepared by the Commonwealth or a state or territory)

a fire-fighting, civil defence or rescue body

any other body which is mainly involved in responding to an emergency or natural disaster.

This includes bodies such as:

the State Emergency Service (SES)

Country Fire Authority (CFA)

the RSPCA (in respect of animal rescue during emergencies or natural disasters).

how much leave is an employee entitled to?

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.

are there notice and evidence requirements?

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.

directing employees to take leave

Employers can request that employees take their annual leave, if the requirement is reasonable, for example: 

during a shut-down period, e.g. over the Christmas and New Year period 

when an employee has accrued excess annual leave. 

An annual leave balance is considered excessive if an employee has more than eight weeks of annual leave (ten weeks if employee is a shift worker).  

The exact requirements concerning when and how employers can direct employees to take annual leave are set out in awards and registered agreements. All requests to take annual leave must be reasonable, and to consider both the needs of the employer and employee in terms of timing and notice given.



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