FAQs

Do you have a question on wage rates, awards, complying with employment regulations, OHS, Workers’ Compensation, EEO, business compliance or other workplace related matters?

Our Workplace relations FAQs below may help you.

Further information on managing employees is also available in the BIZassistManual.

If you are still unsure, call BIZassistInfoline on 1300 78 38 44 for on-the-spot advice, every weekday from 8am-5.30pm, for the cost of a local call from anywhere in Australia. 

What action should I take if I believe an employee has abandoned their employment?

Can an employer make an employee take their annual leave?

Does an employer have to grant annual leave when requested by the employee?

Can an employee cash out their annual leave?

Where leave is granted in advance, and the employee resigns, can the value of the leave be withheld?

Do I have to pay maternity leave?

What notice does an employee have to give prior to taking maternity leave?

What notice does an employee have to give when returning from maternity leave?

How much paid personal/carer’s leave is an employee entitled to?

What evidence is required for taking personal/carer’s or compassionate leave under the Fair Work Act 2009?

How much unpaid carer’s leave is an employee entitled to?

What is community service leave?

Can an employee be requested to work more than 38 hours a week?

Can an employee refuse to work additional hours?

What are flexible working arrangements and how are they applied for?

Does the Fair Work Act cover redundancy pay for employees?

Does the Fair Work Act count workers compensation as time worked for the purpose of leave accrual?

Question: What action should I take if I believe an employee has abandoned their employment?

Answer: 
Abandonment of employment occurs where it is clear that the employee no longer intends to be bound by the contract of employment and has failed to attend work at specified times or locations without prior notification or consent. For the contract to be deemed repudiated, the period of abandonment must exceed 3 consecutive working days. Certain modern awards may contain provisions for dealing with abandonment of employment. If this is the case, these provisions must be adhered to. 

In cases where the employer believes an employee has abandoned their employment, they should write a letter to the employee indicating prima facie evidence suggesting abandonment of employment. The letter should also advise that if the employee does intend to return, he/she should make an appointment with the relevant manager, at which time there will be an opportunity for him/her to explain the reasons for the absence and for the failure to notify the employer of the absence. 

Having heard the reasons, the employer should then decide whether or not to allow the employee to return to his or her previous position. 

If the employee does not reply to the letter, or does not provide a valid reason for the absence, then the employment can be found to be terminated at the initiative of the employee.

Answer: 
The National Employment Standards (NES) provide that an employer may require an “award free/agreement free” employee to take annual leave, but only if the requirement is reasonable. Examples of what are reasonable include excessive accrued amounts of paid annual leave or where the employer’s enterprise is being shut down, for example, between Christmas and New Year. An employer will also be able to reach an agreement with an award free/agreement free employee as to how and when annual leave will be taken.

If the employee does not have sufficient annual leave accrued to cover the duration of the shut down, and the employee is “award free/agreement free”, there are three options available to the employer: 

• The business could undertake only a partial shutdown to allow the employee to work; 
• Reach agreement with the employee to take unpaid leave during the shut down period; 
• Reach agreement with the employee that annual leave in advance would be granted.

If the employee is covered by a modern award that deals with annual leave and shut downs then the provisions of the modern award must be followed. Similarly if an employee is covered by an agreement which contains provisions dealing with annual leave and shut downs then clarification should be sought as to what entitlements and conditions prevail.

When looking to direct an employee to take a portion of their excessive accrued leave, care must be exercised to ensure the provisions of their agreement or modern award do not preclude the employer from doing so. 
 

Question: Does an employer have to grant annual leave when requested by the employee?

Answer:
Under the Fair Work Act an employer cannot unreasonably refuse an employee’s request for leave. However, the employer may have regard to the operational requirements of the business in considering granting requests for annual leave. This can include, but is not limited to, taking into account the leave accrual requirements for scheduled shut downs, the needs of the business, custom and practice in the business and the period of notice provided with the request.
 

Question: Can an employee cash out their annual leave?

Answer: 
The ability of an employer to make an agreement with an employee to cash out a portion of his or her annual leave will continue under the NES. Under the NES, cashing out can occur where a cashing out term is included in a modern award or enterprise agreement; or where an employee is “award free/agreement free” and there is written agreement.

There are three requirements that must be met in order to cash out annual leave, whether under a modern award, enterprise agreement or by agreement with an “award free/agreement free” employee: 

• after the cashing out, the employee must have an accrued entitlement to annual leave of not less than 4 weeks. Subject to this requirement, there is no limit on the portion of annual leave that may be cashed out in any year. In particular, there is no restriction (as there was previously under the AFPC Standard) on cashing out no more than half of an employee’s annual leave entitlement per year; 
• each cashing out must be by a separate agreement in writing between the employer and the employee; and 
• the employee must be paid at least the full amount that would have been payable to the employee had he or she instead taken the leave.

From 1 January 2010, the cashing out provisions in the annual leave component of the NES will be read as though a modern award and enterprise agreement also includes a reference to a transitional instrument. A transitional instrument is any award, notionally agreed preserved State award, collective agreement, workplace determination, preserved State agreement, old IR agreement, pre-reform certified agreements or section 170MX award. Where a transitional instrument continues to apply to an employee their ability to use the cashing out of annual leave provisions can continue to operate. However, the operation of such provision will be subject to the protections around cashing out contained in the NES. For example, regardless of whether a transitional instrument provided otherwise, a minimum balance of 4 weeks’ annual leave would be required to be retained, the agreement to cash out must be a separate written agreement, and the employee would have to be paid for the cashed out leave at the full amount he or she would have received had the employee actually taken the leave.

Question: Where leave is granted in advance, and the employee resigns, can the value of the leave be withheld? 

Answer: 
Under the Fair Work Act 2009 there are limited circumstances under which an employer can withhold or deduct the value of leave given in advance from an employee’s termination pay. Where a modern award provides for an employer to deduct from any monies owing as a result of leave provided in advance, this is enforceable. However, where the modern award does not contain such a provision then the Fair Work Act 2009 does not allow for such a deduction. This will mean for the majority of employee’s, where an employer elects to forward credit annual leave to an employee, this decision was made in good faith and does not entitle the employer to withhold the value of the leave where an employee resigns before the leave is accrued.

Answer:
No.  There is no legal requirement to pay an employee during a period of maternity leave; the Fair Work Act 2009 makes provision for ‘unpaid parental leave’ of up to 52 weeks, with the ability to request an extension of up to a further 52 weeks. However, where the employee’s conditions of employment are subject to a Workplace Agreement or common law contract of employment that does provide for a ‘paid maternity leave’ entitlement, then the employee will have an entitlement to payment for a period of maternity leave. It is worth noting that the current Federal Government is planning to implement a paid maternity scheme in the near future, which will be separate legislation to the Fair Work Act 2009.

Question: What notice does an employee have to give prior to taking maternity leave?

Answer:
An employee must provide, where practicable, a medical certificate to their employer 10 weeks before the expected date of birth. Such notice must specify the intended start and end dates of the leave. 

An employee must then provide the employer with an application for a period of ordinary maternity leave no later than four weeks before the first day of the intended continuous period of maternity leave, unless it was not reasonably practicable to do so (for example, in the instance of premature birth). 

If the employer requests evidence that would satisfy a reasonable person after being given notice of an employee’s intention to take maternity leave, an employee is obligated to provide such evidence in order to comply with the leave requirements. The Fair Work Act 2009 outlines the requirements that need to be adhered to ensure compliance for birth-related leave and adoption-related leave.

Answer:
The employee must provide her employer with written notice of the proposed date of her return to work no later than four weeks before that day. 

If the employee wishes to extend the period of maternity leave within the original entitlement, they may do this once by providing the employer with at least 4 weeks notice prior to the normal maternity leave finishing. This can be accessed once at the employee’s initiative. However, the employer can use their discretion when granting additional changes to the planned return date. 

If the employee wishes to extend the period of maternity leave to access the additional 52 weeks, they may do this once by providing the employer with at least 4 weeks notice prior to the normal maternity leave finishing. The employer is obligated to provide a written response as to whether or not they are granting the extension within 21 days of the request being made. 

If the employee wishes to shorten the period of maternity leave, this can be done by mutual agreement between the employer and the employee.
 

Question: How much paid personal/carer’s leave is an employee entitled to?

Answer:

Under the NES, employees, other than casual employees, will be entitled to 10 days’ paid personal/carer’s leave per annum. Personal/carer’s leave accrues progressively during a year of service according to the employee’s ordinary hours of work, up to a maximum of 76 hours per annum, and accumulates from year to year. 

There will no longer be a limit on how many days per year an employee can take as carer’s leave; the entire of an employee’s accrued paid personal/carer’s leave entitlement will be available to be taken as either personal or carer’s leave.

Question: How much unpaid carer’s leave is an employee entitled to?

Answer:
The following employees are entitled to two days “unpaid carer’s leave” for each occasion when a member of the employee’s immediate family or household requires his or her care or support because of a personal illness or injury or an unexpected emergency: 

• A casual employee; and 
• A full-time or part-time employee who has exhausted his or her paid personal/carer’s leave entitlements.

This unpaid leave can be taken in a single unbroken period of up to two days, or if the employer and employee agree, in separate periods. 

An employee cannot take unpaid carer’s leave during a particular period if the employee could instead take paid personal/carer’s leave.

Question: What is community service leave?

Answer:
Community service leave under the NES can be accessed under three different scenarios. This can include where an employee is required to attend jury service (including attendance for jury selection), a ‘voluntary emergency management activity’ or a ‘prescribed community service activity’.

In the case of jury service for an employee who is not a casual employee, the employee will be entitled to be paid their base rate of pay (i.e. exclusive of incentives, loadings, allowances, or overtime or other penalty rates) for the first 10 days of jury service. However, the employer is only required to pay the difference between what the employee receives in respect of ‘jury service pay’ (not including any expense related allowances) and the employee’s base rate of pay for their ordinary hours of work for the time that the employee is absent on jury leave up to 10 days.

Jury service pay means an amount paid in relation to jury service under a law of the Commonwealth, a State or a Territory, other than an amount that is an expense related allowance. Jury service longer than 10 days is unpaid. Casual employees are entitled to jury service leave, but this will be unpaid.

A ‘voluntary emergency management activity’ scenario occurs where an employee engages in an activity dealing with an emergency or natural disaster on a voluntary basis and the employee is a member of a ‘recognised emergency management body’, or has a ‘member like’ association with the emergency management body, for example, volunteer fire-fighting or State Emergency Services (SES) work.
In addition, for the activity to qualify for community service leave, the employee needs to have been requested by the emergency management body to engage in the activity or, where no request was made, it was reasonable to expect that such a request would have been made.

A recognised emergency management body is: 

• a body whose function is to cope with emergencies or disasters and is prepared by the Commonwealth, a State or a Territory; 
• a fire fighting, civil defense or rescue body; 
• any other body, whose substantial purpose involves securing or protecting the safety of persons or animals, or protecting property, in an emergency or natural disaster; 
• prescribed by the regulations.

The Act does however specifically exclude any body which is established for the purpose of entitling employees to be absent from their employment under this entitlement.

A ‘prescribed community service activity’ is intended to be prescribed by the Fair Work Act 2009 Regulations. It should be noted that the entitlements under the NES do not exclude any similar employee entitlements in relation to engaging in eligible community service activities derived from State or Territory laws where those entitlements are more beneficial to employees than the entitlements under the NES.

Question: Can an employee be requested to work more than 38 hours a week?

Answer:
Under the NES a national system employee can only be required to work a maximum of 38 ordinary hours per week. An employee may be requested to work more than 38 hours where those additional hours are considered reasonable. Factors taken into account when deciding whether additional hours are reasonable include: 

• any risk to employee health and safety from working the additional hours; 
• the employee’s personal circumstances, including family responsibilities; 
• the needs of the workplace or enterprise in which the employee is employed; 
• whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours; 
• any notice given by the employer of any request or requirement to work the additional hours; 
• any notice given by the employee of his or her intention to refuse to work the additional hours; 
• the usual patterns of work in the industry, or the part of an industry, in which the employee works; 
• the nature of the employee’s role, and the employee’s level of responsibility; 
• whether the additional hours are in accordance with averaging terms included under section 63 of the Fairwork Act in a modern award or enterprise agreement that applies to the employee, or with an averaging arrangement agreed to by the employer and employee under section 64 of The Fairwork Act; 
• any other relevant matter.

Question: Can an employee refuse to work additional hours?

Answer:
An employee may refuse to work reasonable additional hours if those hours are unreasonable. The factors taken into account when deciding whether additional hours are reasonable are the same as those that must be considered when requesting an employee to work more than 38 hours per week.
 

Question: What are flexible working arrangements and how are they applied for?

Answer:
Under the NES, an employee with 12 months’ service will have the right to request a change in working arrangements to assist the employee who is a parent or has responsibility for the care of a child under school age or the child is under 18 and has a disability.

The NES does not define what a change in the working arrangements for an employee may be; however, it does provide examples, including changes to hours of work, patterns of work or in location of work.

The right to request flexible working arrangements does not apply to casual employees, unless they are a long term casual employee who has a reasonable expectation of continuing employment with the employer and works on a regular and systematic basis.

An employee wishing to enter into flexible working arrangements must make the request in writing and set out the details of the change sought, including the reasons for the change. Following receipt of the written request the employer must give the employee a written response to the request within 21 days, stating whether or not the employer agrees to or is refusing the request. The employer can refuse the request on reasonable business grounds. If the employer does refuse, they must include details as to the refusal in their response.
 

Question: Does the Fair Work Act cover redundancy pay for employees?

Answer:
The NES contain a redundancy pay entitlement for employees if the employee’s employment is terminated at the initiative of the employer because the employer no longer requires their job to be done by anyone or because of the insolvency or bankruptcy of the employer.

An employee made redundant is entitled to an amount of redundancy pay, calculated based on the employee’s length of service. This means that for the first time, award free/agreement free employees in Australia will have a statutory entitlement to severance pay. The entitlement also applies to award and agreement covered employees. There are a number of exceptions to whom the redundancy pay is not payable, outlined in the Act. On application by the employer, FWA may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that FWA considers appropriate.

The Transition Act provides that an employee’s service prior to 1 January 2010 does not count for the purposes of redundancy pay entitlements if the terms and conditions of employment did not provide for an entitlement to redundancy pay, for example, award free employees who did not have a redundancy pay entitlement in his or her contract of employment.
 

Question: Does the Fair Work Act count workers compensation as time worked for the purpose of leave accrual?

Answer:
The Fair Work Act 2009 places a restriction on employees taking or accruing leave or absences while receiving workers’ compensation. An employee is not entitled to take or accrue any leave or absence (whether paid or unpaid) during a period of compensation when the employee is absent from work because of a personal illness, or a personal injury, for which the employee is receiving compensation payable under a law (a compensation law) of the Commonwealth, a State or a Territory that is about workers’ compensation. If the employee has returned to work, partially or wholly on modified duties, then they will accrue leave for the time worked, and be able to take accrued leave.