Employment Entitlements

Sometimes there are disagreements between employers and workers about workplace entitlements. Some examples include:

• How many hours can the employer require the worker to work?
• Is over time or loading payable?
• How many days carer’s  leave do you get?
• When is annual leave available, and is loading payable on that? Can it be cashed in?
• When does long service leave accrue?
• How many sick days do you get in a year?

In most cases, there are black and white answers to these questions, and if the employer is not paying the amounts, or not affording the rights that workers should have, the employer will be in strife with the Fair Work Ombudsman. We have provided various links through this page to the authoritative sources in these topics, but please call us if anything needs further explanation.

The most important source of law in this area are the National Employment Standards (NES), which are found in Chapter 2 of the Fair Work Act 2009(Cth). These standards apply to almost all employers in Australia, and cover most key workplace entitlements. When a new employee starts with a company, it is a legal requirement that the company gives to the worker a Fair Work Information Statement which provides a useful summary of these entitlements. We have summarized some of the main provision from the NES below.

State law covers the area of Long Service Leave. In NSW this is the Long Service Leave Act 1955 (NSW), and this law, for example, says that an employee who has worked for ten years with an employer is entitled to two months’ paid long service leave. Further, if an employer terminates the contract after at least five years of service, they must pay the worker Long Service Leave on a pro rata basis.

For many employees there is also a Modern Award that applies to their employment. Modern Awards are specific to industry groups, especially for workers not in senior management positions. Minimum hourly rates, and provisions for the working of overtime relating to a specific industry are often dealt with under the relevant modern award.

Some larger employers negotiate Enterprise Agreements specific to part or all of their workforce. Normally these are negotiated on behalf of workers by their Union, and private law firms like ours can assist companies with negotiating these. There may be something specific to the company’s operations, such as remote work locations and unusual hours of work that make it appropriate to negotiate a different set of rules. As Enterprise Agreements override the modern award to the extent of any inconsistency, Enterprise Agreements must be approved by the Fair Work Commission before they become legally binding.

Some miscellaneous employee entitlements are also contained in a person’s contract of employment, or in the Employment Policies of the Company. For example, a company may choose to have more general study leave or parental leave entitlements than the law requires as a bare minimum, and so this should be checked if you need to clarify this.

Here are some of the main rules everyone should be aware of in Australian employment:

• the most an employer can force a full time employee to work is 38 hours plus reasonable additional hours (section 62)
• an employee who is a parent, or who has the responsibility for the care of a child, may request flexible working arrangements to assist with the care of that child (section 65)
• Ordinary full time workers get 4 weeks paid annual leave per annum, and most shift workers get 5 weeks per annum. Part time staff get a pro-rated amount (section 87). In some instances, annual leave can be cashed out (section 94).
• Each year a full time employee can claim up to 10 days paid person/carer’s leave. This enables the worker to deal with their own sickness, or that of another person who is a member of their household. Part time workers get a prorated entitlement (sections 96 & 97)
• Compassionate leave is also available where there is a death or serious injury in the family, up to 2 days per instance (section 104).

The NES also covers the rules around how much notice must be given on termination (section 117), and how much extra should be paid as a minimum in the case of redundancy (section 119).

Where an employee, or group of employees, believe they have not received their proper entitlements, the first step should be to raise the concern in a non-confrontational way with their employer. It may be that the employee misunderstands the rules, or that the company misunderstands its obligations. If there is no success here, the employee can always contact the Fair Work Ombudsman (FWO) to ask for their help to clarify their entitlements and then, as required, get the FWO to advocate on their behalf to get their entitlements paid. In rare instances, matters are filed in the Federal Circuit Court to enforce payment of these entitlements.

Many employees are afraid to raise these issues with their employer for fear that it may damage their standing as an employee, or worse still, that it may lead to the termination of their employment. It is unlawful for employers to treat employees adversely for seeking to enforce their workplace rights, and any employee who has experienced bad treatment because of this can bring an adverse action claim in the Fair Work Commission.

Some employees who find themselves in the same position find it helpful to speak up as a group. This will make it more difficult for the company to marginalise them.

Law firms like Atkinson Vinden are often able to negotiate a quick resolution of these disputes, clarifying what the law is, and ensuring the full amounts owed (with interest) are paid. We help both companies and individual employees with these issues, so whatever the concern, we are here to help. Please call our team on (02) 9411 4466.