Category: public holidays

5 things you need to know about personal leave

September 2017

Personal leave is a big area of employment law that you need to understand to ensure that you are meeting all your obligations to your employees. Here are five things employers must know about personal leave. 1. An employee can use their accrued paid personal/carer’s leave for any amount of personal leave or carer’s leave per year. There is no cap on the amount that can be used for either purpose each year. 2. If an employee has taken all of their accrued paid personal/carer’s leave entitlements in a year, and a member of the employee’s immediate family or household requires care or support because of a personal illness, injury or unexpected emergency, that employee is entitled to take 2 days’ unpaid carer’s leave for each permissible occasion. 3. You can ask an employee to provide you with reasonable evidence of their reason for taking personal/carer’s leave, e.g. medical certificate or statutory declaration. It may not be reasonable for you to ask an employee to provide you with a medical certificate every time they are absent due to personal illness. However, when an absence extends beyond a short period or an employee is repeatedly absent on particular days (i.e. before or after a weekend or public holiday), it may be reasonable for you to request a medical certificate. Ad

Determining personal/carer’s leave entitlements should not be difficult

In The Personal/Carer’s Leave Guide, prominent employment lawyer and workplace relations expert Charles Power has simplified the complexities that can surround personal/carer's leave.

Shop Now 4. Under the NES, paid personal/carer’s leave can be cashed out if: a term in a modern award or enterprise agreement allows the employee to forego an amount of paid personal/carer’s leave (agreement/award-free employees cannot cash out paid personal/carer’s leave – and presently no modern award permits this either); each arrangement you make to cash out a period of paid personal/carer’s leave is by a separate agreement in writing between you and the employee; the employee is paid at least the full amount they would have been paid if they had taken the leave; you authorise the employee to forego the amount of leave; the employee will still retain a minimum balance of 15 days’ paid personal/carer’s leave; and both you and the employee voluntarily agree to the cashing out arrangement. 5. If an employee is on a period of personal/carer’s leave under the NES during a public holiday, that public holiday is not a personal/carer’s leave day. You have to pay the employee as usual for the public holiday and not deduct the day from their paid personal/carer’s leave entitlements. The Employment Law Practical Handbook has much more detailed information about the often challenging and misunderstood topic of leave, including personal, carer's, annual, long service, parental, community service, time off in lieu, public holidays, etc. It's a must for any employer and something you don't want to get wrong. Order your copy today and make sure you're not overpaying or underpaying your employees. PS: Leave chapters make up only 7 of the 70-plus chapters in the Handbook, which holds a substantial amount of information on every employment-related topic you can think of.

How do you calculate Time off in Lieu for your employees

October 2015

Sorry to alert you, but there are less than two months until Christmas Day (or is it fewer than two months?) Either way, the ‘silly season’ will soon be upon us and some businesses will be experiencing pre-Christmas panic and requiring their employees to work additional hours to fulfil orders, meet targets, or just go that ‘extra mile’ to deliver great customer service. So what happens when your budget doesn’t stretch for additional overtime payments to staff, or employees would rather take advantage of the sunshine and take time off in lieu of payment to spend with their kids on school holidays? Can everyone have their cake and eat it, too? Time Off in Lieu (TOIL) arrangements allow an employee to take time off from work in lieu of overtime payment. The following short article by Nicole Hebblewhite will help explain the basics of TOIL so that the process can be embraced, not feared, and everyone is a winner. Nicole is a graduate in the Melbourne office of legal firm Holding Redlich. She works with Charles Power, employment law expert and author of the Employment Law Handbook.

TOIL – getting the calculations right

Currently, 83 of 122 modern awards allow for an employee and employer to make a TOIL agreement. Of those 83 awards, 59 provide that TOIL is calculated at the ordinary rate (i.e. ‘time for time’), while 24 provide that time off for the purpose of TOIL is calculated at the employee’s overtime rate (i.e. ‘time for penalty). As part of the four-yearly review of modern awards, the Full Bench of the Fair Work Commission has recently finalised a model TOIL term to be inserted into particular modern awards ([2015] FWCFB 6847 (6 October 2015)). The term will vary 113 modern awards which provide for employees to be paid overtime. The term will facilitate employees reaching an agreement with their employer to take TOIL instead of payment for overtime. The clause requires that: the employee and employer agree to take TOIL at a mutually-agreed time; TOIL will be taken within six weeks of the overtime being worked. If this does not occur, the overtime is to be paid to the employee at overtime rates; a separate written agreement is made for each occasion that overtime is to be taken as TOIL; any accrued, but untaken, TOIL must be paid to the employee on termination at overtime rates; and if requested by the employee, the employer must pay the employee for any accrued but untaken TOIL entitlement at overtime rates. The term offers a financial incentive to employers to enter into a TOIL agreement as TOIL is calculated at the ordinary time rate. That is, an employee will receive an hour of TOIL for each hour of overtime worked, rather than at the relevant overtime penalty rate. Any award that currently allows TOIL to be calculated using the time for penalty method will remain unchanged. Non-award covered employees While the National Employment Standards in the Fair Work Act 2009 (Cth) (Act) do not provide for compensation, whether monetary or otherwise, for employees who work overtime, both award-covered and award-free employees could reach a TOIL agreement with their employer by requesting a change in working arrangements under section 65 of the Act. An employer can only refuse this request on reasonable business grounds. An employment contract or enterprise bargaining agreement may also facilitate the making of a TOIL agreement between an employee and their employer.


If you need to structure your TOIL agreement with employees, or you have any other outstanding workplace issues, get them sorted before Christmas by ordering your copy of the Employment Law Handbook, written by Editor-in-Chief Charles Power. This comprehensive book is full of advice, tips, warnings, templates, legal case studies and checklists to ensure you can simplify your business. Keep up the good work, Jeff Salton Editor, Workplace Bulletin

Compulsory Christmas close – does everyone get paid?

October 2015

A few years ago I started a new job in November, just after Melbourne Cup Day. Less than two months later the company closed for two weeks over the Christmas-New Year period. Like many businesses, that time of year was ‘dead’ so the time off was compulsory for all staff – there really was nothing to do as we deliberately didn’t publish anything at that time of year. I was told before I started that I would have time off without pay. Luckily, I’d accrued enough holiday pay from my previous employer to cover the shortfall. Can an employer make an employee take unpaid leave where they have insufficient accrued annual leave to cover the period of a Christmas–New Year close-down? Under the National Employment Standards (NES), you can direct an employee to take paid annual leave in particular circumstances, but only if the requirement is reasonable. This will be assessed in terms of: The needs of the employee and your business Any agreed arrangement with the employee The custom and practice in your business; and The timing of your requirement and the notice you gave. A reasonable requirement would be: an employee has accrued an excessive amount of paid annual leave; or your business in being shut down for a period between Christmas and the New Year. In my case, my agreement with my employer was that I would have to take unpaid leave. Other companies I have worked for have let me ‘go into the red’, that is, allowed me to take paid annual leave in advance of it being accrued. So what about unpaid leave? The answer depends on the terms of the applicable award or enterprise agreement, while in the case of award/agreement-free employees, annual leave conditions are subject to the National Employment Standards (NES), which does not provide for annual shut down periods. For instance, Clause 29.4 of the Clerks – Private Sector Award permits an employer to grant annual leave in advance of accrual. However, if the employee leaves their employment before completing the required amount of service to account for the level they in advance, their employer will be entitled to deduct the amount of leave in advance still owing from any remuneration payable to the employee upon termination of employment. And the Manufacturing and Associated Industries and Occupations Award 2010 provides that an employee with insufficient accrual of annual leave to cover the close-down period can be sent on unpaid leave for the duration of the close-down. If an employee does not have sufficient leave, and your agreement with the employee is silent on this matter, it may mean that you will have to advance the employee leave during any periods of shutdown. If that is the case, you should arrange for the employee to authorise you to deduct the amount of any leave advanced from amounts owing should the employee leave your employment before accruing the amount of leave advanced. This advice might be a bit late for you to do anything about it this year, but it would certainly be worth remembering for subsequent years. The subject of annual leave is definitely a tricky one to navigate around, especially with hurdles such as: Dealing with different awards within the one workplace Leave loadings Part-time and casual staff Agreed and non-agreed hours of work Different entitlements between States When has someone accrued too much leave? And what is the ‘no detriment test’? And if you breach your annual leave obligations to an employee, they may ask a court to order you to pay compensation. Right now would be a very good time to be familiar with your responsibilities to your employees. To achieve that goal, we’ve developed a brief and inexpensive (but comprehensive) guide on Annual Leave. Written by the author of the Employment Law Handbook, Editor-in-Chief Charles Power, the guide simplifies the whole subject surrounding annual leave, including how to calculate annual leave, annual leave loading and the cashing out of annual leave entitlements owed to your employees. Keep up the good work, Jeff Salton Editor, Workplace Bulletin

6 things you need to know about public holidays

January 2014

As you know, the Australia Day public holiday is next Monday. So, now is a good time for a refresher of your obligations in relation to public holidays under the Fair Work Act 2009 (Cth) (FW Act). Today, I’m going to explain six things you, as an employer, need to know about public holidays. If you are a national system employer, the FW Act and any modern awards or enterprise agreements applying to your employees will regulate your rights and obligations for public holidays. Here are six things you need to know about public holidays: 1. The National Employment Standards (NES) under the FW Act entitles all employees of national system employers to a paid day off work on a public holiday. 2. If an employee is entitled to be absent from work on a public holiday under the FW Act, you must pay them at the base rate of pay for ordinary hours of work for the holiday. 3. If a casual employee is not rostered to work on a public holiday, they will not be entitled to payment for that day under the FW Act. 4. While there is no entitlement to public holiday penalties (i.e. additional pay for public holidays worked) under the FW Act, usually a modern award or enterprise agreement will grant that entitlement. 5. An enterprise agreement cannot make a provision for public holidays that is less beneficial to the employee than the NES public holiday provision in the FW Act, e.g. entitlement to a paid day off work on a public holiday. 6. You can request an employee to work on a public holiday but the employee may refuse your request and take the day off if they have reasonable grounds for doing so.

Your annual leave obligations to your employees during a Christmas shutdown

December 2013

The silly season is almost upon us, and many businesses will be shutting up shop for the Christmas break. Do you know your obligations when it comes to paying your employees over the Christmas period? Today, I’ll take you through them. As you probably already know, you must pay your employees for Christmas Day and Boxing Day as if they worked on those days (if they would usually work on those days). And if your employees do work on those days, you may need to pay them penalty rates. Check your employee’s relevant award or agreement. But what if your business is shut down for more than just the public holidays? Most awards and agreements allow you to direct employees to take paid annual leave during a shutdown between Christmas and New Year. The direction to take leave has to be reasonable, taking into account factors such as: the needs of the employee and the employer’s business; any agreed arrangement with the employee; custom and practice of the business, e.g. does your business usually stay open or close during the Christmas break; timing of the direction to take leave, e.g. how much notice you have given your employees; and if the period of notice given is reasonable, e.g. a few days’ notice would be unreasonable while a few months’ notice would be reasonable. Check the relevant award or agreement for any specific obligations that could apply to you. If your employees are award- or agreement-free, you can direct an employee to take paid annual leave if it is reasonable. A shutdown period between Christmas and New Year would qualify as reasonable. If an employee doesn’t have enough annual leave accrued to cover the shutdown period, you may ask the employee to take unpaid leave or annual leave in advance. However, they must agree to this; you cannot direct them take unpaid leave or annual leave in advance. In this case, you would need to pay the employee their usual rate of pay for the duration of the shutdown.

Can an employee refuse to work on a public holiday?

December 2012

The holiday season is just around the corner, and with it brings some much-anticipated public holidays. But not every business has the luxury of closing over Christmas. And you may require an employee to work on a public holiday, even Christmas Day.

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How to minimise your legal risks this festive season: Part Two

December 2011

If you recall, in Wednesday's Bulletin, Charles went over 7 things you can do to reduce the chances of inappropriate behaviour at work functions.

One of those 7 things was to make sure you remind employees of the standard of behaviour you expect of them while at a work-organised function.

But what is the best way to do this?

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How to minimise your legal risks this festive season: Part One

December 2011

While hosting a work function carries with it a number of inherent legal risks, there are things you can do to minimise those risks.

Try taking these 7 steps to reduce the chances of inappropriate after hours behaviour occurring at your work functions: Read more

The silly season is upon us again!

December 2011

Believe it or not, the silly season is upon us again!

And that means it's the time of the year when your social calendar starts to fill up with work Christmas parties, drinks and end of year functions.

But you need to remember this...

While holding work Christmas functions and parties offer a great chance for you to reward your employees for all their hard work, hosting end-of year festivities for your staff also carries with it a number of legal risks.

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How to stay on top of your public holiday obligations this holiday season: Part 2

November 2011

Use the below table to work out your obligations when it comes to paying employees for public holidays over the 2011-2012 festive period:

Employee Your public holiday pay obligation The employee usually works on the day the public holiday falls on but does not work because it is a public holiday. The employee is entitled to the same pay that they would have received if they had worked ordinary hours on that day and the day was not a public holiday. The employee works on the day the public holiday falls on. The employee is entitled to public holiday penalties if they are payable under an applicable modern award or enterprise agreement. The employee does not usually work on the day the public holiday falls on and does not work on the public holiday. The employee is entitled to the same pay that they would have received for not working on that day if the day was not a public holiday. The employee does not work on the public holiday because it falls within a period of annual leave. The employee is entitled to the same pay that they would have received on an annual leave day and that day was not a public holiday, but the day is not counted as an annual leave day.
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