Personal/Carer s Leave

Transcription

1 Personal/Carer s Leave From 1 January 2010 personal/carer s leave entitlements form part of the National Employment Standards (NES). The NES replace the minimum entitlements which applied under the Australian Fair Pay and Conditions Standard (the Standard). The NES applies to all employers and employees across Australia except for those who are employed by an unincorporated employer in Western Australia. What is Personal Leave? An employee may take personal leave if the leave is taken because the employee is unfit for work because of a personal illness, or personal injury, affecting the employee. commonly called sick leave. Personal leave is What is Carer s Leave? An employee may take carer s leave if the leave is taken to provide care or support to a member of the employee s immediate family, or a member of the employee s household, who requires care or support because of: (i) a personal illness, or personal injury, affecting the member; or (ii) an unexpected emergency affecting the member. Who is included in an employee s immediate family? The following are members of an employee s immediate family: A spouse, de facto partner, child, parent, grandparent, grandchild or sibling of the employee; and A child, parent, grandparent, grandparent, grandchild or sibling of a spouse or de facto

2 partner of the employee. How much paid personal/carer s leave does an employee get? Under the NES, all employees (except casual employees) are entitled to paid personal/carer s leave based on their ordinary hours of work. An employee is entitled to 10 days personal/carer s leave for each 12 months of service for a full time employee (pro rata for a part time employee). Awards and agreements may provide for additional personal leave entitlements over and above those provided in the NES. Calculating Personal/Carer s Leave Under the NES, an employee s entitlement to personal/carer s leave accrues progressively during a year of service according to their ordinary hours of work and accumulates year to year. A simple way to calculate personal/carer s leave accrual is to add up the total number of ordinary hours worked by an employee and then divide this number by 26. This will calculate the employee s hourly personal/carer s leave entitlement during the period. We have calculated some accrual rates for full time employees (those that work 38 hours per week) Personal/Carers Leave Accrual By Hour hours days By Week hours days By Month hours days By Year 76 hours 10 days How much is the employee paid? The employer must pay personal/carer s leave at the employee's base rate of pay for their ordinary hours during the period of leave. This doesn't include separate entitlements such as incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates. Unpaid Carer s leave An employee is entitled to 2 days of unpaid carer s leave for each occasion when a member of the employee s immediate family, or a member of the employee s household, requires care or support because of: (a) a personal illness, or personal injury, affecting the member; or

3 (b) an unexpected emergency affecting the member. An employee may take unpaid carer s leave for each permissible occasion as: (a) a single continuous period of up to 2 days; or (b) any separate periods to which the employee and his or her employer agree. An employee cannot take unpaid carer s leave during a particular period if the employee could instead take paid personal/carer s leave. Taking personal/carer s leave For all periods of personal/carer s leave (paid and unpaid), an employee must give his or her employer notice of the taking of such leave. The notice must be given to the employer as soon as practicable (which may be at a time after the leave has started), and must advise the employer of the period, or expected period, of the leave. Does an employee need to provide any evidence? An employer is entitled to request evidence that would substantiate the reason for the leave. An award or agreement may include terms relating to the kind of evidence that an employee must provide in order to be entitled to paid personal/carer s leave or unpaid carer s leave. For example, an employer may request that the employee provides a medical certificate. What happens if an employee fails to provide notice or evidence? If the employee fails to either provide notice or, if required, evidence that would satisfy a reasonable person to substantiate the reasons for the leave means the employee is not entitled to the leave (or the payment for the leave). We recommend that all businesses have a specific policy indicating the way that notice is provided (e.g. phone call to manager, no SMS) and the requirement, if any, of the employee to provide evidence requirements. What happens if a public holiday falls during a period when an employee is on personal/carer s leave? If the period during which an employee takes paid personal/carer s leave includes a day or part-day

4 that is a public holiday, the employee is taken not to be on paid personal/carer s leave on that public holiday. Cashing out of Personal/Carer s Leave The National Employment Standards does allow for Cashing out of Personal/Carer s Leave. There are however strict provisions that must be met. For employees covered by an award or agreement, cashing out of paid personal/carer s leave is permitted if all of the following applies: The award or agreement allows the practice; There is a separate agreement in writing on each occasion; The employee retains a minimum balance of at least 15 days of personal/carer s leave; and The employee is paid at least the full amount that would have been payable had the employee taken the leave they have cashed out. It is unlawful for an employer to force (or try to force) an employee to make (or not make) an agreement to cash out personal/carer s under a term included in an award or agreement. What happens to an employee s personal/carer s leave entitlement if they resign or are terminated? On termination of employment an employer is not required to pay an employee in respect of any accrued untaken personal/carer s leave. Is accrued personal/carer s leave paid out on a transfer of employment? A transfer of employment occurs when an employee moves from one employer (the old employer) to another employer (the new employer) within three months of a transfer of business and performs substantially the same work for the new employer as they performed for the old employer. A transfer of employment can also occur where an employee moves from one employer (the old employer) to another employer (the new employer) who is an associated entity of the old employer within 3 months of ending employment with the old employer.

5 A transfer of business can occur where one of the following connections between the old employer and the new employer exists: a transfer of assets outsourcing insourcing where the two employers are associated entities. When there is a transfer of employment, the period of service with the old employer will generally count as service with the new employer, and the employee will keep any personal/carer s leave balance they had accrued with the old employer. However, where the employers are not associated entities, the new employer can decide not to recognise an employee s service in relation to personal/carer s leave with the old employer. In such cases, the old employer will not be required to pay out the employee s untaken personal/carer s leave. In this case, the employee would essentially lose their accrued personal/carers leave.

6 Leave Application Form TYPE OF LEAVE (please tick): Annual Personal* Carers* Compassionate* Parental* Community Service* Long Service Study/Exam/Professional Development Unpaid (List Reason) * The above types of leave require some form of evidence. Please refer to the appropriate [XYZ Company Leave policy, or the Fair Work Act 2009 if no leave policy] for further details on evidence requirements Employee Name: Application Date: First day of leave applied for: Last day of leave applied for: Total Number of hours/days on leave: Is appropriate evidence attached (as per [XYZ company] leave policy or the Fair Work Act 2009): Yes No- List Reason Staff Member Signature Manager Approval