EMPLOYEE LEAVE ENTITLEMENTS Presenters: Danica Leys, Gracia Kusuma, Grant Smith OVERVIEW It is important to be aware of the various kinds of leave available to employees The types of leave an employee is entitled to will depend on their employment status (permanent or casual) as to whether the leave is paid or unpaid. 1
TYPES OF LEAVE Annual leave Public holidays Leave without pay Close down period Personal / Carer leave Compassionate leave Long service leave Parental leave Paid Parental leave Community service leave Emergency services leave Jury service leave SOURCE OF ENTITLEMENTS National Employment Standards (NES) Awards or Enterprise Agreements Employment contracts and company policies 2
ANNUAL LEAVE ANNUAL LEAVE: OVERVIEW 20 days (4 weeks) annual leave for every year of continuous service. Shift workers may be entitled to additional annual leave Part-time employees are entitled to annual leave on a pro-rata basis. Accrues progressively from commencement of employment and it accumulates from year to year. Casual employees are not entitled to paid annual leave, instead receiving a 25% loading on all hours worked. 3
ANNUAL LEAVE: PAYMENT Employees will be paid based on their ordinary hours of work at their current rate of pay. Most awards provide for 17.5% annual leave loading, however, check your relevant industrial instrument. Superannuation payments need to be made on annual leave payments when the leave is taken. Accrued untaken annual leave and annual leave loading is payable upon cessation of employment. Superannuation is not payable on a lump sum of annual leave upon cessation of employment. ANNUAL LEAVE: RECORD KEEPING Maintain a record of annual leave taken by employees, documenting: Dates of absence Total Days absent Total hours absent 4
ANNUAL LEAVE: TAKING LEAVE The taking of annual leave is at an agreed time with both employer and employee. You cannot unreasonably refuse an employees request for annual leave. However, an employer can refuse an employees annual leave request if deemed reasonable (e.g. operational reasons such as harvest) 5
ANNUAL LEAVE: CASHING OUT Award or enterprise agreement covered employees cannot cash out annual leave unless specifically provided for in their relevant instrument. Award free or agreement free employees are able to cash out annual leave, provided the requirements outlined in s93 of the Fair Work Act 2009 are complied with. ANNUAL LEAVE: EXCESSIVE LEAVE Some industrial instruments provide for excessive leave provisions. E.g. Pastoral Award 2010 provides for excessive leave in clause 23.5. Allows for employers to require employees to take a proportion of their annual leave within certain guidelines. 6
PUBLIC HOLIDAYS: OVERVIEW Prescribed under the NES Permanent employees to receive a day off work without loss of pay on any public holiday gazetted by NSW. Employees required to work will receive a penalty on their base rate of pay in accordance with the relevant instrument. Employees can refuse to work on public holiday for reasonable circumstances. PUBLIC HOLIDAYS How do they interact with employee leave entitlements? An employee is to receive an additional day if a public holiday falls when they are on annual leave or long service leave (LSL). The employee will not be required to take leave on the given public holiday. An employee on unpaid leave will still receive payment for public holiday if it is their usual day of work. 7
PUBLIC HOLIDAYS The public holidays for this upcoming holiday period include: Christmas Day: Tuesday 25 th December 2012 Boxing Day: Wednesday 26 th December 2012 New years Day: Tuesday 1 st January 2013 If employees are required to work on any of the above given days then the employees should be paid accordingly. LEAVE WITHOUT PAY Leave without pay will generally occur when: An employee that wants to take a period of holiday but does not have sufficient accrued annual leave. An employee that is sick or has to care for an immediate family or household member that has no entitlement outstanding. 8
CLOSE DOWN PERIOD Some organisations may close their operations for a short period over Christmas and the new year. Employees need to be notified in advance of the dates of close down. Employees can access their annual leave during this period if they have any outstanding leave. PERSONAL / CARERS LEAVE 9
PERSONAL/CARERS LEAVE: OVERVIEW Previously referred to a sick leave Entitled to take leave when: Sick Injured Taking care of immediate family/household member (i.e. providing support for those suffering from personal illness or injury or unexpected emergency). PERSONAL/ CARERS LEAVE ENTITLEMENT Minimum 10 days per year for each year of continuous service. Accrues progressively from commencement of employment and accumulates from year to year. Part-time employees are entitled to a prorata amount. Casual employees are not entitled to paid leave. 10
PERSONAL/ CARERS LEAVE: PAYMENT Paid based on ordinary hours, excluding: Commission Bonuses Overtime Superannuation is payable Outstanding personal/ carer s leave is not payable upon termination PERSONAL/ CARERS LEAVE: EVIDENCE Right to request evidence e.g. Medical Certificate. Company policy can include the requirements for employees to produce medical documentation if leave exceeds timeframe (i.e. Generally 2 days or more) 11
COMPASSIONATE LEAVE COMPASSIONATE LEAVE OVERVIEW: Entitled to 2 days paid leave for each permissible occasion. Paid entitlement for permanent employees, whereas, unpaid entitlement for casuals. PERMISSIBLE OCCASION DEFINED AS: When a member of the employees immediate family / household: Contracts or develops a life threatening personal illness; Sustains a life threatening injury; dies 12
COMPASSIONATE LEAVE: PAYMENT Payment is based on the employees base rate of pay for the ordinary hours of work in the period of absence. LONG SERVICE LEAVE 13
LONG SERVICE LEAVE: OVERVIEW Provided for under the NES NSW employees become eligible under the Long Service Leave Act 1955 LONG SERVICE LEAVE: OVERVIEW Basic entitlement: 2 months after 10 years of continuous service and one month after every subsequent 5 years After completing 5 years of service (though not more than 10 years) an employee may be entitled for prorata payment of LSL upon cessation of employment in following circumstances: Terminated by the employer for reasons other than serious or wilful misconduct Employee voluntarily resigns due to illness, injury or domestic or other pressing necessity. 14
LONG SERVICE LEAVE: PAYMENT Based on normal weekly hours (excluding overtime, shiftwork and other penalty rates) Part-time employees receive payment based on their average weekly payment. Casual employees payments are based on the normal weekly number of hours of work. This can be calculated by: Averaging the weekly number of hours of work over 12 months; or Averaging the weekly number of hours of work over 5 years. Whichever is greater in monetary value will be applicable. Superannuation is payable Outstanding long service leave is payable upon termination. Superannuation is not payable on lump sum payment of LSL Long Service Leave cannot be cashed out PARENTAL LEAVE 15
PARENTAL LEAVE: OVERVIEW Provided for under the NES To qualify, an employee has to have completed or would have completed 12 months of service before the birth or adoption of a child Basic entitlement: 12 months unpaid leave for the primary care giver and the option to extend for a further 12 months. Under the Fair Work Act, 3 weeks concurrent leave is permitted. PARENTAL LEAVE Other provisions on parental leave in the NES: Notification Requirement Process to return to work earlier than anticipated Process to extend maternity leave beyond the initial 12 months Safety issues 16
PARENTAL LEAVE: OBLIGATIONS Return to work: Employees on parental leave are entitled to return to the same position If there has been a major workplace change, the employee should be consulted. Replacement employee: The replacement employee should be informed that position is only temporary. PAID GOVERNMENT INITIATIVES The three paid government schemes are: Paid Parental Leave Scheme 18 weeks pay at the National Minimum Wage (currently at $606.40 per week) Your role as an employer: act as paymaster for employees who has been with you for at least 12 months. Baby Bonus Dad and Partner Pay 2 weeks pay at the National Minimum wage. This leave can be taken anytime within the first year of the child's birth or adoption. 17
COMMUNITY SERVICE LEAVE COMMUNITY SERVICE LEAVE Provided under the NES Involvement in a voluntary emergency management activity Community service leave is unpaid unless in reference to jury service (other than casuals) Jury service (including attending jury selection) No limit on how much leave an employee is entitled to. Needs to be reasonable in all circumstances. 18
JURY SERVICE OVERVIEW Provides for employees to be absent for jury selection and participate in jury service, under a law of the Commonwealth, State or Territory. Is a paid entitlement for employees other than casuals. PAYMENT Make up payment for up to the first 10 days of jury service. Payment based upon ordinary hours of work and base rate of pay Certain awards provide for make up payment for the entire duration of the jury service VOLUNTARY EMERGENCY MANAGEMENT ACTIVITY: OVERVIEW What does it include? Activity involved around an emergency or natural disaster; An activity on a voluntary basis Must be with a recognised emergency management body 19
How much leave is an employee entitled to? An employee is entitled to be absent from their employment during the following: Commencement of the community service activity (including travel time); Reasonable rest time after the activity The entirety of the leave is deemed reasonable Employees can choose to be paid from: Annual leave; or Other accrued paid leave entitlement (e.g. long service leave) NSW Farmers Association ABN 31 000 004 651 GPO Box 1068 Sydney NSW 2001 Level 25 66 Goulburn Street Sydney NSW 2000 Member Service Centre 1300 794 000 T 02 8251 1700 F 02 8251 1750 W www.nswfarmers.org.au 20