Leave

If you're working you may be entitled to annual and personal leave.

• Find out how much annual leave you are entitled to here.
• Find out how much personal leave you are entitled to here.

It is up to each employer and employee to agree on when, and for how long, paid annual leave may be taken. However, an award or registered agreement may allow for an employee to be directed by the employer to take annual leave in certain circumstances, for example:

• during a period of shutdown (such as between Christmas and New Year)
• if the employee has an excessive accumulated annual leave balance.

The employer’s requirement or direction to take leave must be reasonable, taking into account factors such as:

• the needs of the employer and the employer’s business
• an agreed arrangement with the employee
• custom and practice of the business
• timing of the direction or requirement to take leave, and
• reasonableness of the period of notice given.

The provision to direct an employee to take leave in the circumstances prescribed above may be contained in an award or registered agreement; therefore you need to check the terms of the instrument that covers the employee.

You can’t direct an employee to take annual leave if the award or agreement that covers them does not expressly allow you to.

Under the NES, there is no formula for the accrual of annual leave and personal leave. The NES states that annual leave and personal leave ‘accrues progressively’ during a year of service according to an employee’s ordinary hours of work and is cumulative. The view of the Fair Work Ombudsman is that leave should be accrued on a regular basis provided an employer is able to determine an employee’s entitlement at any time they request leave or their employment ends.

This is subject to any applicable agreement or award that may have differing terms.

Section 130 of the Fair Work Act 2009 states that an employee is not entitled to take or accrue any leave or absence under the National Employment Standards (NES) during a period of workers compensation. However, this section does not prevent the accruing or taking of leave under the NES if it is permitted by a compensation law.

In addition to the NES, entitlements regarding the accrual of leave may be found in a registered agreement or award, therefore it is essential that the provisions of the instrument that applies to an employee are also checked. However, any term of a registered agreement has no effect where that term is detrimental to an employee when compared to an entitlement under the NES. Further, a modern award may include terms that specify in more detail how an entitlement under the NES works under that modern award.

Under the National Employment Standards (NES), an employee who takes a period of paid personal leave is entitled to be paid at their base rate of pay for their ordinary hours of work in the period.

In addition to the NES, entitlements regarding payment for a period of personal leave may be found in a registered agreement or award, therefore it is essential that the instrument that applies to an employee is also checked.

However, any term of a registered agreement has no effect where that term is detrimental to an employee when compared to an entitlement under the NES. Further, a modern award may include terms that specify in more detail how an entitlement under the NES works under that modern award

There is information about minimum parental leave entitlements under the NES linked below. Parental leave entitlements can also depend on the award or agreement covers an employee. You should also ensure you check the terms of your relevant award or registered agreement.

The National Employment Standards do not specifically require that an employee provide a medical certificate for paid personal leave taken either side of a weekend. However, an employer is entitled to request evidence that would substantiate the reason for any personal leave taken.

If the employer requests evidence of the leave and the employee fails to provide the evidence, then the employee is not entitled to the paid leave. In addition to the NES, an award or agreement may include terms relating to the kind of evidence that an employee must provide to be entitled to the leave.

The National Employment Standards does not specifically allow for the cashing out of annual leave. However, if an employee is covered by an award or agreement that allows the cashing out of annual leave, it may be done.

An award or agreement-free employee may agree to cash out annual leave at any time with their employer. However, in all cases the following applies:

• an employee must retain an entitlement to at least four weeks paid annual leave
• there must be a separate agreement in writing on each occasion, and
• the employee must be paid at least the full amount that would have been payable had they taken the leave.

Long service leave obligations are outlined in the National Employment Standards (NES). At this stage, the NES just preserves long service leave entitlements in awards and agreements as they were at 31 December 2009. If an employee did not have any entitlement in an award or agreement, their entitlement to long service leave will generally come from State or Territory long service leave legislation.

An employee may be eligible for a pro-rata payment of long service leave on termination. This is usually after a minimum period of 5 years continuous service but sometimes will be longer. Employers and employees will need to check the preserved long service leave entitlement in the relevant award or agreement, or with their relevant state authority to find out a particular employee’s long service leave entitlements.