If you have reason to believe that you have not been paid your employment entitlements, please read on.
The National Employment Standards (NES) apply to all employees covered by the national workplace relations system. They contain the minimum entitlements owed to employees. Contracts of Employment, Modern Awards, certain pre-modern awards and Enterprise Agreements can also provide additional entitlements to eligible employees above those provided for in the NES.
Different forms of employment entitlements
Employers are obliged to provide employees with four weeks paid leave per year for full and part time workers. The annual leave must be paid at the employee's base rate of pay.
Shift workers may be entitled to an additional week of annual leave,providing 5 weeks paid annual leave.
Annual leave loading for eligible employees
The NES does not require employers to include separate entitlements such as incentive-based payments and bonuses, loadings, allowances, overtime or penalty rates in annual leave pay.
Despite this, certain awards, employment contracts and agreements may provide for annual leave to be paid at a higher rate than that required by the NES.Modern Awards can provide for payment of annual leave loading in addition to an employee's ordinary rate of pay. If an employee is covered by a relevant modern award, annual leave loading may be paid out upon termination of employment.
Under the NES, employees are entitled to 10 days paid personal/carer's leave,two days of unpaid carer's leave and two days paid compassionate leave.
Casual employees are not entitled to paid personal leave, but are eligible to two days unpaid carer's leave and two days unpaid compassionate leave. Casual loading should be paid to these employees in addition to the minimum or agreed wage applicable in lieu of these benefits.
Upon termination, not all employees are entitled to have their unused personal/ carer's leave paid out; this will be a matter to be determined in accordance with and employment contract, awards or agreements.
Employees must be given notice of the termination of employment. The period of notice required is based on length of service. The NES provides for up to four weeks of notice of termination, with an extra week of notice required if the employee is over 45 years of age and has at least two years of continuous service with the employer. Additional notice can also be provided for in an employment contract.
Employees may be entitled to redundancy pay where they have at least 12 months of continuous service and work for a business with no less than 15 employees.
Employees made redundant by their employer are entitled under the NES to up to 16 weeks redundancy pay. The calculation is based on length of continuous service with an employer.
Length of service for the purposes of redundancy entitlements under the NES is calculated from 1 January 2010. Where an employee was employed prior to this date, a pre-modern award or agreement may provide for preserved redundancy provisions.
Contractual and Workplace Instrument Entitlements to Notice and Redundancy
Contracts of employment and workplace instruments, such as awards and agreements can provide for additional notice periods and greater redundancy entitlements. An employee may also be entitled to redundancy pay above NES entitlements under preserved redundancy provisions.
The calculation of employment entitlements can be quite a complex exercise due to Australia's complex system of employment laws. Upon termination, an employee's final pay can include depending on a variety of situations:
Payment in lieu of Notice
Accrued annual leave and any annual leave loading entitlements
Accrued or pro-rata long service leave (if applicable)
Redundancy entitlements (if applicable)
Personal leave paid out (if provided for in an employment contract or as per of an award or enterprise agreement)
Berrigan Double Lawyers is the law firm of choice for employers and employees alike for all enquiries in relation to employment law. We run a free advice line for employers and employees through our 3 offices in Melbourne, Sydney and Brisbane. We have a dedicated team of lawyers who specialise and practice in nothing else but employment law. Come speak to us and let us guide you in the right direction. If you have any questions, please contact Berrigan Doube Lawyers. You can find more information about our legal services at www.bdl.com.au.You may also contact our lawyers by telephone on (02) 9251 6699 in Sydney, (03)9600 2577 in Melbourne and (07) 3399 4199 in Brisbane.