Leave Entitlements
This article explains the general position of leave entitlements in Australia. This is governed by Part 7 of the Workplace Relations Act 1996 “WRA”, set out in the Australian Fair Pay and Conditions Standard (“the Standard”).
The WRA sets minimum standards. Each state is permitted to increase these as it sees fit. Similarly, as an employer, you may increase leave entitlements with contracts of employment if you like. Of course employers who allow leave entitlements to fall below the WRA standard are at risk of a tribunal against them. This article is a general guide to the main types of leave available for permanent employees.
The article addresses:
- Annual leave
- Sick leave
- Parental leave
- Berevement leave
- Family or carer's leave
- Long service leave
- Jury duty
Am I eligible for leave entitlements?
If you are a permanent employee (full-time or regular part-time) or are employed under a fixed term contract, you are normally entitled to various types of paid and unpaid leave, in addition to about ten paid public holidays throughout the year.
Regular part-time employees generally receive, on a pro rata basis, annual leave equivalent to that of full-time employees who do the same type of work.
For example, if you were employed half-time (19 hours per week) and were entitled to four weeks recreation leave, you would be entitled to four weeks annual leave per year at a rate of 19 hours per week (i.e. 76 hours).
Casual employees (including part-time casual) are usually not eligible to any sort of leave or paid public holidays. Instead they receive a higher rate of pay (a ‘casual loading’). However, casual workers who have worked for the same employer for a long time are frequently given some entitlements by their employer.
First we identify how each sort of leave is classified. Then we summarise the minimum standards.
Annual leave
The standard annual leave is four weeks per annum. This can increase to five or more weeks if the employee works shift work.
Some employers have rules about how much annual leave you can build up by not taking your full quota each year. For instance, some employees may not accumulate more than six weeks annual leave.
Sick leave
Sick leave is awarded at approximately 5–10 paid days paid per year. Sometimes sick leave is accrued over the period of employment. Often, a sickness certificate from a medical practitioner must be provided in order for the leave to be paid.
Parental leave
Parental leave refers to maternity leave (for women), paternity leave (for men) and adoption leave. You may be eligible if you are a long-term casual employee.
Maternity leave
Awards or agreements may also allow maternity leave to commence up to six weeks before the birth. Some part of the leave may also be paid leave under an award or agreement.
Paternity leave
Fathers may be eligible to take paternity leave at the time of birth of a child, and may also take another period of paternity leave afterwards. Some part of the leave may be paid leave under an award or agreement.
Adoption leave
Some, but not all employers offer adoption leave, which can be taken to care for an adopted child.
Bereavement leave
Permanent employees may receive two or three days of paid bereavement leave on the death of a close family member – which is usually immediate blood relatives.
Family or carer’s leave
You may be able to take leave to care for ill family members. Where personal leave is available under an award or agreement, it generally replaces separate entitlements for sick leave and bereavement leave, so that personal leave can generally be used for either sick leave, bereavement leave or carer’s leave purposes. Generally, up to five days carer’s leave can be taken each year. Foe example, if your child is sick, you may take a day off to care for them.
Long service leave
Paid long service leave is awarded to permanent employees (and in some cases, to casual employees) after a specified period of continuous employment with the same employer.
Jury duty
Each state and territory has different rules about jury duty. An employer must allow employees to perform jury duty by giving them paid time off. Usually the court pays the employee a certain amount for their service. The employer is then required to make up the difference between the court’s payment and the employee’s normal pay.
The minimum leave entitlements, as set by the Workplace Relations Act 1996 are as follows:
- minimum and classification-based rates of pay and casual loadings;
- a maximum of 38 ordinary hours of work per week (which can be averaged over a period of up to 12 months, by agreement), plus reasonable additional hours;
- four weeks of paid annual leave per year (5 weeks for shift workers) for full-time employees (pro-rata for part-time employees) – with scope to cash out up to two weeks leave per year;
- ten days of paid personal/carer’s leave per year for full time employees (pro-rata for part time employees), two days of unpaid carer’s leave per occasion and two days of paid compassionate leave per occasion;
- 52 weeks of unpaid parental leave (which may be taken as maternity, paternity and adoption leave).
Workplace agreements and contracts of employment
Terms and conditions of employment in a workplace agreement or contract of employment cannot fall below the minimum entitlements guaranteed by the Standard.
The Standard does not apply to pre-reform certified agreements and Australian Workplace Agreements made before the commencement of WorkChoices, or preserved State agreements.
Awards
Award terms about annual leave, personal/carer’s leave and parental leave are preserved (which means they remain in awards, but cannot be varied) and will continue to apply only where they are more generous to an employee than the Standard.
The 'more generous' test is based on a comparison of the total annual quantum of leave that the employee is entitled to, and is applied on an individual basis.
Where a preserved award term provides more leave than the Standard, the preserved term will apply in full, to the exclusion of the Standard, including all administrative rules (e.g. accrual, crediting, accumulation and payment).
Conversely, where the Standard provides an equivalent or higher amount of leave than a preserved award term, the Standard applies in full.
Award terms about long service leave, superannuation (until end of 30 June 2008), jury service and notice of termination are also preserved award terms. This means that they continue to apply (for existing and new award reliant employees) but the terms may not be varied by the Australian Industrial Relations Commission.
The more generous test has no application in relation to these matters as they are not dealt with by the Standard. | 
