NATIONAL EMPLOYMENT STANDARDS

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4. Annual Leave

Full-time employees are entitled to 4 weeks’ paid annual leave for each continuous year of service. If the employee is a shift worker as defined in the legislation or Modern Award, then that employee is entitled to 5 weeks’ of paid annual leave each year. Part-time employees receive annual leave on a pro-rata basis calculated on their ordinary part-time hours of work.

Casual employees are not entitled to paid annual leave.

Annual leave accrues progressively during a year of service according to the employee’s ordinary hours of work and accumulates from year to year.

An employer can direct an employee to take annual leave where the employee has excessive annual leave accrued. For an award employee this must be done in accordance with the terms of the Modern Award.
For a non-Award employee, an agreement will be reached between the employer and the employee based on a reasonable period of notice given before taking annual leave. In practice, this notice should be a period of at least 4 weeks.

Paid Annual Leave

Paid annual leave may be taken as agreed between the employer and employee. If an employee requests paid annual leave for a specified period, the employer must not unreasonably refuse the request.

If paid annual leave is agreed upon for a specified period, then payment must be based on the base rate of pay for the employee’s ordinary hours of work in that specified period.

If the employment of an employee ceases, then any remaining entitlements to annual leave must be paid to the employee.

Annual leave loading

Annual leave loading is an entitlement that arises under an award or industrial agreement. It is not an entitlement under the NES. Therefore, non-award employees are not entitled to annual leave loading. For award employees, employers must check the Modern Award relevant to the employees to determine the entitlement to annual leave loading. Generally, this is an entitlement to 17.5% loading on their base rate of pay for the period of annual leave.

Cashing of Annual Leave

Paid annual leave is to be cashed out according to an award or enterprise agreement. For both award and non-award employees, this is done by making a written agreement with the employer to cash the annual leave, ensuring that annual leave is not cashed out if the remaining accrued entitlement is less than 4 weeks, and the employee is paid the full amount of leave that the employee has forgone.

Interaction of Annual Leave with Public Holidays and Other Forms of Leave

Where a public holiday falls within a period of annual leave, the day of the public holiday is not to be counted as annual leave.
Also, if the period during which an employee takes paid annual leave includes a period of any other leave (other than unpaid parental leave), or a period of absence from employment such as community service leave, the employee is taken not to be on paid annual leave for the period of the other leave or absence.

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5. Personal/carers leave and compassionate leave

Paid Personal/Carer’s Leave

Full-time employees are entitled to 10 days of paid personal/carers leave for each year of continuous service. Part-time employees receive personal/carers leave on a pro-rata basis calculated on their ordinary part-time hours of work.
Personal/carers leave accrues progressively during a year of service according to the employee’s ordinary hours of work and accumulates from year to year. 

Personal/carer’s leave may be taken because the employee:

(a) is unfit for work due to personal illness or injury; or
(b) is required to provide care or support to a member of the employee’s immediate family or household member from illness, injury or an unexpected emergency.

When calculating the period of personal/carers leave, public holidays are not to be included in the calculation.

Paid personal/carers leave is to be calculated on the employee’s base rate of pay for the employee’s ordinary hours of work in the period.

Casual employees are not entitled to paid personal/carers leave.

Unpaid Carer’s Leave

An employee is entitled to a further 2 days of unpaid carer’s leave for each occasion when a member of the employee’s immediate family or household member requires care and support for personal illness, injury or an unexpected emergency.
Unpaid carer’s leave is not available if paid personal/carers leave is still available to the employee.

Casual employees are entitled to unpaid carer’s leave.

Compassionate Leave

Full-time and part-time employees are entitled to take up to 2 days of paid compassionate leave for each occasion when a member of the employee’s immediate family or household member contracts or develops an illness or injury that poses a serious threat to life; or dies.

If compassionate leave is taken, the employee is entitled to payment of their base rate of pay for the employee’s ordinary hours of work in the period that is taken off.

Casual employees are not entitled to paid compassionate leave.

Notice and Evidence Requirements

If an employee seeks to apply for personal/carer’s or compassionate leave, the employee must give the employer notice of this intention as soon as reasonably practicable, along with the expected period of the leave.
It is also permissible for the employer to request evidence of reasons for taking personal/carer’s leave or compassionate leave, including the right to request a medical certificate for each absence due to personal/carers leave and a death certificate for any absence due to compassionate leave. 

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6. Community service leave

Community service leave is leave taken in relation to a Community Service Activity. A Community Service Activity includes:

(a) jury service (including attendance for the purpose of jury selection) that is required by or under a law of the Commonwealth or of a State or Territory; or

(b) carrying out a voluntary emergency management activity and an employee engages in a voluntary emergency management activity if, and only if:

(i) the employee engages in an activity that involves dealing with an emergency or natural disaster; and
(ii) the employee engages in the activity on a voluntary basis (whether or not the employee directly or indirectly takes or agrees to take an honorarium, gratuity or similar payment wholly or partly for engaging in the activity); and
(iii) the employee is a member of, or has a member-like association with, a recognised emergency management body; and
(iv) either:

 the employee was requested by or on behalf of the body to engage in the activity; or

 no such request was made, but it would be reasonable to expect that, if the circumstances had permitted the making of such a request, it is likely that such a request would have been made.

(c) an activity prescribed in the regulations of the Fair Work Act 2009 or such other legislation that may apply from time to time.

An employee who engages in an eligible Community Service Activity as defined above is entitled to be absent from his or her employment for a period if:

(a) the period consists of one or more of the following:

 time when the employee engages in the activity;
 reasonable travelling time associated with the activity;
 reasonable rest time immediately following the activity; and

(b) unless the activity is jury service – the employee’s absence is reasonable in all the circumstances.

An employee must provide the employer with notice of the absence as soon as is reasonably practicable (which may be at a time after the absence has started) and must advise of the expected period of the absence.

The employer may request evidence of the reason for the absence.

Payment to Employees on Jury Service (other than casuals)

Where an employee, other than a casual employee, is absent from his or her employment for a period because of jury service, the employer must pay the employee’s base rate of pay for the employee’s ordinary hours of work, however:

(a) the employee is required to provide the employer with evidence that the employee has taken all necessary steps to obtain any amount of jury service pay to which the employee may be entitled and inform the employer of the total amount that has been paid or is payable to the employee for the period. The employee is not entitled to payment from the employer if the employee fails to provide this evidence;

(b) if the employee provides the evidence, the amount the employer has to pay the employee is reduced by the amount of jury service pay the employee has received or will receive;

(c) the employer is only required to pay the employee the difference between the base rate of pay and the jury service pay, for the first 10 days’ of the absence.

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7. Long Service Leave

An entitlement to long service leave for an employee in Queensland is currently still found in the Queensland Industrial Relations Act 1999. The Federal Government’s intention is that long service leave will fall under the NES as a national entitlement in the future but this is likely to be a lengthy process due to each State and Territory having a different entitlement and therefore an agreement needs to reached by the States/Territories as to what the national entitlement to long service leave will be.

General Entitlements (10 years of continuous service or over)

From 3 June 2001 the entitlement to long service leave in Queensland is 8.6667 weeks on full pay after each period of 10 years continuous service. If an employee was employed prior to 3 June 2001, then there is an entitlement to claim two thirds of the total years of service prior to this date. Once 10 years of continuous service has been accomplished, an employee will only be entitled to any further long service leave accumulated after another 5 years continuous service. An employee who has completed 15 years of continuous service will be entitled to 13 weeks long service leave.

Pro Rata Long Service

As from 3 June 2001, employees who have completed 7 years of continuous service upon termination are entitled to receive proportionate payments of long service leave (pro rata long service).

Pro rata long service leave is only available to an employee if:

• the employee’s service is terminated by their death;
• the employee terminates their service due to illness, incapacity or because of a domestic or other pressing necessity;
• the employer dismisses the employee for reasons other than conduct, capacity or performance, or
• the employer unfairly dismisses the employee.

A copy of the Fair Work Statement is able to be downloaded here >>>.

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Download a (PDF) copy of this Employment Update here >>>.

8. Public holidays

Every employee is entitled to be absent from work on a public holiday unless the employer reasonably requests an employee to work on a public holiday. If the employer requests an employee to work on a public holiday, the employee may refuse the request if the request is unreasonable or if their reason for refusing to work the public holidays is reasonable.

In determining what is reasonable the employer should consider:

• the nature of the employers workplace or enterprise and the nature of the work performed by the employee;
• the personal circumstances of the employee, including family responsibilities;
• whether there is reasonable expectation by the employee that work on a public holiday will be requested by the employer;
• whether the employee is entitled to receive penalty rates, overtime payments or other compensation for work conducted on a public holiday;
• the type of employment of the employee (i.e. full-time, part-time, casual or shift work);
• the amount of notice given by the employer when making the request;
• the amount of notice given by the employee in advance of the public holiday in refusing the request; and
• any other relevant consideration.

Substituted Public Holiday

It is possible a State or Territory law, Modern Award or an Enterprise Agreement may include terms providing for an employer and employee to agree on the substitution of a day or part-day that would otherwise be a public holiday. For a non-Award employee it is possible for the employer and employee to agree on the substitution of a day or part-day that would otherwise be a public holiday.

Payment for absence on Public Holiday

If a public holidays falls within an employee’s ordinary hours of work and the employee is absent on the public holiday, the employer must pay the employee’s ordinary hours of work on the day. If the public holiday falls on a day that a part-time employee ordinarily works, then the part-time employee is entitled to those hours to be treated as the public holiday hours.

Payment for working on a Public Holiday

If an employee is required/requested to work on a public holiday and actually works, the employee will be entitled:

• Award employee: to be paid in accordance with the relevant Modern Award where the employee is an award employee (or the Division 2A State Award for an employee in the State system up until 31 December 2009);
• Non-award employee: will be paid their ordinary rate of pay for working on the public holiday and, our usual advice is that, in addition the employee will be paid their ordinary rate they would be paid not working on the public holiday (the amount they would have received for the public holiday absence). As an alternative the employer and employee may agree that the employee receive equal time off in lieu of the hours worked on the public holiday (Substitution).

It is possible to include compensation for working on public holidays in an annualised salary so long as the salary is sufficiently above the relevant minimum wage (whether Award wage or Federal Minimum Wage) to absorb this entitlement. Any such arrangement should be agreed in writing between the employer and employee – such as in the contract of employment.

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9. Notice of termination and redundancy pay

Requirement for Notice of Termination

An employer must not terminate an employee’s employment unless the minimum period of notice has been provided. An employer may require an employee to work through the notice period, or not require them to work and then pay them their remuneration in lieu of the notice period. If they are to be paid in lieu of notice, the employee is entitled to receive all entitlements they would have received if they had worked out the notice period.

Minimum Period of Notice

Employee’s period of continuous service with the employer at the end of the day the notice is given	Period of Notice
Not more than 1 year	1 week
More than 1 year but not more than 3 years	2 weeks
More than 3 years but not more than 5 years	3 weeks
More than 5 years	4 weeks

The minimum period of notice increases by 1 week if the employee is over 45 years of age and has completed at least 2 years of continuous service with the employer at the end of the day the notice is given.

Specific Employees Not Covered by Notice of Termination Provisions

There are various exemptions to an employee being entitled to notice of termination. These include where the employee is: 

(a) employed for a specified period of time, for a specified task , or for the duration of a specified season;
(b) an employee who has been terminated for serious misconduct;
(c) a casual employee;
(d) an employee (other than an apprentice) to whom a training arrangement applies and whose employment is for a specified period of time or is limited to the duration of the training arrangement.
(e) a daily hire employee working in the building and construction industry; or
(f) a daily hire employee working the meat industry in connection with the slaughter of livestock; or
(g) a weekly hire employee working in connection with the meat industry and whose termination of employment is determined solely by seasonal factors; or
(h) an employee prescribed by the regulations as an employee to whom the notice of termination provisions do not apply.

IMPORTANT: It should be noted that until the Fair Work Act, employees who were terminated during their probationary period were not entitled to notice of termination (unless agreed otherwise). This exemption is no longer available. Accordingly, when an employee is terminated during their probationary period they are entitled to the minimum period of notice that a permanent employee would receive under the table above. Although a probationary period is usually between 3 and 6 months, at any time during the probationary period an employee will be entitled to a minimum of one week’s termination.

Redundancy Pay

An employee is entitled redundancy pay if the employee’s employment is terminated due to:

• the employer‘s initiative as the employer no longer requires the job being done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or
• because the employer has become insolvent or bankrupt.

The amount of redundancy pay owed by the employer is to be calculated using the table below at the employee’s base rate of pay for his or her ordinary hours of work. 

Employee’s period of continuous service with the employer at the end of the day the notice is given	Period of redundancy pay
At least 1 year but less than 2 years	4 weeks
At least 2 years but less than 3 years	6 weeks
At least 3 years but less than 4 years	7 weeks
At least 4 years but less than 5 years	8 weeks
At least 5 years but less than 6 years	10 weeks
At least 6 years but less than 7 years	11 weeks
At least 7 years but less than 8 years	13 weeks
At least 8 years but less than 9 years	14 weeks
At least 9 years but less than 10 years	16 weeks
At least 10 years	12 weeks

The amount of redundancy pay decreases at 10 years’ service due to the employee being entitled to long service leave at this time.

Note 1: If an employee, prior to 1 January 2010 was covered by a notional agreement preserving state award (NAPSA), and the entitlement to redundancy pay was greater than the NES standard, the ‘no detriment rule’ will provide that the NES standard does not yet apply. In this situation, the entitlement under the NAPSA award will continue to apply until 1 January 2014.

Note 2: If an employee was employed by the employer prior to 1 January 2010, and did not previously have an entitlement to redundancy pay, but is now entitled under a Modern Award the calculation of years of service commences as and from 1 January 2010.

Variations to redundancy pay or incapacity to pay

If the employer is able to find other acceptable employment for the employee or cannot pay the amount specified in the above table, the employer may apply to Fair Work Australia for a determination. The determination may have the effect of reducing the amount required to be paid by the employer.

Exclusions from obligation to pay redundancy pay

An employee is not entitled to redundancy pay if:

a) his or her period of continuous service with the employer on termination is less than 12 months; or 

b) at the earlier of the following times, the employer employed fewer than 15 employees:

o at the time the employee is given notice of termination; or
o immediately before termination.

Furthermore, redundancy pay will not apply to an employee:

a) employed for a specified period of time, for a specified task , or for the duration of a specified season;
b) who has been terminated for serious misconduct;
c) who is a casual employee;
d) who is an employee (other than an apprentice) to whom a training arrangement applies and whose employment is for a specified period of time or is limited to the duration of the training arrangement;
e) who is an apprentice;
f) covered by a Modern Award that includes an industry-specific redundancy scheme; or
g) prescribed by the regulations to whom the redundancy pay provisions does not apply.

Transferring Employee

A transferring employee will not be entitled to redundancy pay if the new employer recognises the employee’s service with the old employer.

If an employee rejects an offer of employment with the new employer and does not transfer, then the employee will not be entitled to a redundancy payment where:

• the terms and conditions of the new position offered by the new employer are substantially similar to, and considered on an overall basis, no less favourable than, the terms and conditions of employment with the old employer immediately before termination; and
• the new employer was going to recognise the employee’s services with the old employer.

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10. Fair Work Information Statement

An employer must give each employee the Fair Work Information Statement before, or as soon as practicable after, the employee commences employment. This Statement informs the employee of their entitlements and rights.

A copy of the Fair Work Statement is able to be downloaded here >>>.

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Download a (PDF) copy of this Employment Update here >>>.