The federal industrial laws, which came into effect on 1 January 2010, create 10 minimum employment entitlements in the National Employment Standards (NES). These standards apply to all national system employers and employees. In addition, the Notice of Termination and Parental Leave provisions of the NES apply to non-national system employers and employees. Most of the NES have been incorporated into all modern awards which apply as of 1 January 2010.
The NES also apply as a minimum to all employees covered by workplace agreements, including workplace agreements entered into before 1 January 2010 and all award free employees. The NES are:
Maximum working hours under the NES are 38 hours per week for full-time employees and for part-time employees their ordinary hours or 38 hours whichever is less. Modern awards or enterprise agreements set out what are ordinary hours of work.
To determine whether the hours are reasonable, employers need to weigh up all of the above factors. Employees can refuse to work the additional hours if they are not reasonable.
The Pastoral Award 2010 provides for ordinary hours of work to be averaged over a period of four consecutive weeks.
Employers and award-free employees can agree to average ordinary hours of work over a 26-week period so long as the average does not exceed 38 hours per week for full-time employees. The agreement to average hours of work must be in writing.
The laws about requests for flexible working arrangements changed as of 1 July 2013. The NES give employees the right to request a change to working arrangements in the following circumstances:
Casual employees who work on a regular and systematic basis with a reasonable expectation of continuing work can also make a request for flexible working arrangements.
What are reasonable business grounds?
Fair Work Act provides the following list of matters which may amount to reasonable business grounds, but there may be others:
- That the new working arrangements would be too costly for the employer;
- That there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested by the employee;
- That it would be impractical to change the working arrangements of other employees or recruit new employees to accommodate the new working arrangements requested by the employee;
- That the new working arrangements requested by the employee would be likely to result in a significant loss in efficiency or productivity;
- That the new working arrangements requested by the employee would be likely to have a significant negative impact on customer service.
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Some of the laws about parental leave changed on 1 July 2013.
This standard applies to national system and non-national system employers in WA.
The NES provide up to 24 months unpaid leave for the birth of a child or the placement for adoption of a child under 16 years of age. This entitlement also applies to same sex couples.
The employee taking parental leave must have completed 12 months of continuous service immediately before qualifying for this entitlement.
Casual employees employed on a regular and systematic basis over at least a 12-month period prior to the expected date of birth or adoption who have a reasonable expectation of continuing regular employment are also entitled to unpaid parental leave.
Each member of an employee couple can take up to 12 months leave.
In addition, an employee who has taken 12 months of unpaid parental leave can request an extension for a further period of up to 12 months.
Any extension period is reduced by any parental leave or special maternity leave taken by the employee’s partner.
A request for the extension of parental leave may only be refused on reasonable business grounds
Concurrent parental leave
Parents cannot take parental leave at the same time except for a period of up to eight weeks in total. This period of concurrent leave may be taken in separate periods but unless the employer agrees, each period must not be shorter than 2 weeks.
The concurrent leave must not start before the date of birth of the child or the day of placement of the child, if the leave is adoption leave, unless the employer agrees.
If the concurrent leave is to be taken in one continuous period the employee must give the employer 10 weeks notice of the intention to take concurrent leave. An employee who wishes to take more than one period of concurrent leave must give the employer at least 4 weeks notice before starting the further period of concurrent leave.
The federal paid parental leave scheme came into operation on 1 January 2011 - download paid parental leave guide to read more about this scheme.
Transfer to a safe job
The laws about transfer to a safe job during pregnancy changed as on 1 July 2013.
If an employee is pregnant and is advised not to continue in her present position due to hazards associated with the job or due to illness or risks associated with the pregnancy, the employer must transfer the employee to a safe job without reduction in pay. The employer may request evidence in the form of a medical certificate.
If no safe job is available, and the employee is entitled to unpaid parental leave, the employer must pay the employee at the employee's base rate of pay for ordinary hours until the risk is ended (usually the end of the pregnancy). This period of leave does not reduce the amount of maternity leave which can be taken.
If no safe job is available, and the employee is not entitled to unpaid parental leave, the employee must be given unpaid leave until the risk has ended (usually the end of the pregnancy).
Seek legal advice
||The laws about parental leave are complex - seek legal advice.
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Annual leave (updated July 2016)
The NES provide for four weeks paid annual leave for each year of service. Annual leave accrues progressively throughout the year and from year to year. Part-time employees also accrue annual leave on a pro-rata basis depending on the hours they work. Casual employees do not receive annual leave as the casual loading compensates them for this entitlement.
Payment for annual leave is calculated on what the employee would have received for the employee’s base rate of pay for ordinary hours of work. The employee’s base rate of pay does not include the following:
- incentive based payments and bonuses;
- monetary allowances;
- overtime or penalty rates.
For employees in the dairy industry covered by the Pastoral Award 2010, the ordinary hours of work are 152 hours over four consecutive weeks. Read our FAQ sheets for quick reference.
Payment of accrued annual leave upon termination of employment
Any annual leave which has accrued must be paid out if the employment is terminated.
Annual leave and the Pastoral Award 2010
The Pastoral Award 2010 specifies that payment for annual leave is the wages the employee would have received for ordinary hours of work had they not been on leave.
Annual leave loading is an award entitlement so it only applies to award employees. The Pastoral Award 2010 provides for a 17.5% annual leave loading to be paid when leave is taken and upon termination if any annual leave is paid out.
If a public holiday falls when an employee is on annual leave, the employee is taken not to be on paid annual leave on that day. Instead the NES about public holidays will apply and the employee will be entitled to be paid for the public holiday at the employee’s base rate of pay for ordinary hours of work
Other forms of leave taken while on annual leave
If an employee is eligible for another form of leave, other than unpaid parental leave, while on annual leave, or is entitled to be absent from work on community service leave, the employee is taken not to be on annual leave during that time. For instance if the employee is eligible for personal leave or carer’s leave while on annual leave, the NES about payment for personal/carer’s leave will apply.
Cashing out of annual leave - Award/Agreement free employees
Award/agreement free employees may agree with their employer to cash out annual leave.
Each agreement to cash out annual leave must be in writing and the payment must be for the full amount that the employee would have been paid if the employee had taken the leave. A separate agreement is required each time annual leave is cashed out.
Use this template for cashing out of annual leave for award/agreement free employees. This agreement should be kept with the employee’s employment records.
Cashing out of annual leave – Pastoral Award employees (updated July 2016)
As of 29 July 2016, employers and employees covered by the Pastoral Award 2010 can agree in writing to cash out annual leave. Each agreement to cash out annual leave must be in writing and the payment must be for the full amount that the employee would have been paid if the employee had taken the leave. A separate agreement is required each time annual leave is cashed out.
Use this template for cashing out of annual leave for Pastoral Award Employees. This agreement must be kept with the employee’s employment records.
Cashing out annual leave (updated July 2016)
||The following conditions apply when cashing out leave:
- the maximum amount of annual leave that can be cashed out in any 12 month period is 2 weeks (Pastoral Award 2010 employees only)
- the employee must retain an entitlement to least four weeks paid annual leave
- there is a separate agreement in writing on each occasion that leave is cashed out
- the employer must not exert undue influence or undue pressure on an employee to agree to cash out an amount of annual leave
- the employee must be paid at least the full amount that would have been payable had the annual leave been taken
- if the employee is under 18 years of age, a parent or guardian must also sign the agreement (Pastoral Award 2010 employees only)
Directing employees to take annual leave – Pastoral Award employees (updated July 2016)
Terms about excessive leave in the Pastoral Award 2010 changed as of 29 July 2016.
If employees have accrued more than eight weeks annual leave, the employer and the employee can discuss ways to reduce the amount of leave owing.
If the employer and the employee cannot reach agreement, the employer can direct the employee to take one or more periods of annual leave.
Before directing the employee to take annual leave, the employer and the employee must have genuinely tried to reach agreement about the taking of the leave.
Employers must give employees at least eight weeks’ and not more than 12 months’ notice of the requirement to take the annual leave.
The direction to take annual leave must not require the employee to take a period of less than one week’s leave and the employee must retain at least six weeks’ annual leave.
However, employees can elect to take leave which leaves them with less than 6 weeks’ accrued leave.
Annual leave in advance - Pastoral Award employees (updated July 2016)
As of 29 July 2016, agreements for Pastoral Award 2010 employees to take annual leave in advance of it accruing must be in writing.
The agreement must state the amount of leave to be taken in advance and the date of its commencement.
Both the employer and the employee must sign the agreement and If the employee is under 18 years of age a parent or guardian must also sign the agreement.
Use this template for an agreement to take annual leave in advance. This agreement must be kept with the employee’s employment records.
If the employment is terminated before the employee has accrued an entitlement to the amount of the leave taken in advance, the employer can deduct the amount owing from the employee’s termination pay.
Directing employees to take annual leave – non award employees
For award/agreement free employees, the requirement to take accrued annual leave must be reasonable, for instance the employee must have accrued a large amount of annual leave.
Personal / carer's leave and compassionate leave
Under the NES, employees (other than casual employees) are entitled to 10 days paid personal/carer’s leave for each year of service.
Personal/carer’s leave accrues progressively throughout the year and from year to year and there is no cap on how much of this leave can be used for carer’s leave. Personal/carer’s leave and compassionate leave accrue on the basis of the employee’s ordinary hours of work.
Personal leave can be taken if the employee is not fit for work due to personal illness or injury.
Payment for personal/carer’s leave is at the employee’s base rate of pay for ordinary hours of work
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Carer’s leave can be taken to provide care or support for a member of the employee’s household or immediate family due to personal illness or injury or an unexpected emergency. Immediate family is defined to mean:
- a spouse, de facto partner, child, parent, grandparent, grandchild or sibling of the employee; or
- a child, parent, grandparent, grandchild or sibling of a spouse or de facto partner of the employee
Immediate family includes extended and blended families, de facto partners, step-relationships, adoptive relationships and same sex relationships.
All employees, including casual employees are entitled to two days of unpaid carer’s leave per occasion. Permanent employees can only take unpaid carer’s leave if they have used up all of their paid carer's leave entitlement.
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Employees are also entitled to two days of paid compassionate leave per occasion and casual employees are entitled to two days unpaid compassionate leave.
Compassionate leave can be taken on two separate days or any other period as agreed between the employer and the employee.
Compassionate leave is available for employees to spend time with a member of their immediate family or household who has developed personal illness or injury or after the death of a member of their immediate family or household.
Payment for compassionate leave is at the employee’s base rate of pay for ordinary hours of work
Notice and evidence requirements
When taking personal/carer’s leave and compassionate leave, employees must do the following or they are not entitled to take the leave:
- notify their employer as soon as is reasonably practicable (which can be a time after the leave has started);
- state the period, or expected period, of the absence;
- if required by the employer, provide evidence that would satisfy a reasonable person of their entitlement to take the leave (this can be a medical certificate or statutory declaration).
This statutory declaration can be used if required to provide evidence.
Enterprise agreements can specify further rules about evidence requirements, such as the provision of medical certificates.
Cashing out of personal/carer’s leave
Personal/carer’s leave can only be cashed out if it is a term of an award or enterprise agreement.
The Pastoral Award 2010 does not provide for cashing out of personal/carer’s leave. Therefore employees, including employees covered by the Pastoral Award 2010, can only cash out accrued personal/carer’s leave if it is a term of an enterprise agreement. Read more about workplace agreements
Each agreement to cash out personal/carer’s leave must be in writing and the payment must be for the full amount that the employee would have been paid if the employee had taken the leave. A separate agreement is required each time personal/carer’s leave is cashed out. Use this template for cashing out of personal leave
If accrued personal/carer’s leave is cashed out the employee must retain a balance of 15 days to be taken as paid leave.
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Payment of accrued personal/carer's leave on termination of employment
Unused personal/carer's leave does not have to be paid on termination unless there is a term in a workplace agreement or award providing for cashing out of personal carer's leave. The Pastoral Award 2010 does not permit the cashing out of personal/carer’s leave.
Community service leave
The NES provide an entitlement to leave for all employees required to attend jury service and for those who engage in a voluntary emergency management activity.
Jury service leave
Employees (excluding casual employees) are entitled to be paid by their employer for a period of up to 10 days while they are absent from work during a period of jury service. Payment for jury service leave is the employee’s base rate of pay for ordinary hours of work. Employers can require the employee to obtain payments for jury service leave from the applicable State/Territory or Commonwealth body and these payments will reduce the amount payable to the employee.
Notice requirements – jury service leave
Employers can request evidence that the employee has taken steps to obtain any available payments and evidence of the payments from the State/Territory or Commonwealth body for the first 10 days of the jury service leave. If this is not provided the employer does not have to make the payment for jury service leave.
Voluntary emergency management activities
Employees are entitled to unpaid leave to engage in voluntary activities which involve dealing with a natural disaster or emergency if they are voluntary members of the emergency management body and the body has requested them to attend. Emergency management bodies include fire fighting bodies, civil defence and rescue.
Notice requirements – community service leave
Employees must give employers notice of the need for community service leave as soon as possible and advise the employer of the expected length of the absence. Employers can also require employees to give them reasonable evidence of the need for the leave.
Long service leave
State and territory laws provide for long service leave.
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The NES provides for employees to be absent from work on specified public holidays. Payment is the employee’s base rate of pay for ordinary hours of work
Full-time employees are entitled to a paid day off for public holidays. Part-time employees are entitled to be paid for the hours they would normally work on public holidays. If they do not normally work on the day of the public holiday, they are not entitled to pay.
Casuals are not entitled to pay for public holidays unless they are rostered for work on that day.
The following days are public holidays for the NES:
- 1 January (New Year’s Day)
- 26 January (Australia Day)
- Good Friday
- Easter Monday
- 25 April (Anzac Day)
- Queen’s birthday holiday
- 25 December (Christmas Day)
- 26 December (Boxing Day)
- state and territory holidays
What are the public holidays in my state/territory?
Public holidays can be different depending on your location. Visit the Fair Work Ombudsman and browse the public holidays section to check the main public holidays in your state or territory. States and territories can declare their own extra public holidays. For example:
in SA, part-day public holidays have been declared from 7pm - midnight on Christmas Eve and New Year’s Eve
regional public holidays that apply only in a specific area
state public holidays for Labour Day
other state and territory public holidays such as Melbourne Cup Day in Victoria.
For more information about public holidays, phone or visit the relevant state or territory department websites listed below.
Substitution of other days
If a State or Territory substitutes another day or declares an additional day, the employee is entitled to be absent on that day.
Substitution of public holidays
||If a State or Territory law substitutes another day for a public holiday, such as Christmas Day, the substituted day is the public holiday not the other day e.g. not Christmas Day itself. This means the penalties only apply on the substituted day. For the latest information on public holidays and pay, visit the FairWork Ombudsman
The Pastoral Award 2010 allows for employers and individual employees or employers and the majority of employees to agree to substitute an alternative day for the public holiday.
Award-free employees can agree with employers to substitute public holidays. Enterprise agreements can also provide for substitution of public holidays.
An employer may request an employee to work on a public holiday if the request is reasonable. The request may be refused if it is unreasonable or the employee’s refusal is reasonable.
The NES provides a list of factors to be taken into account when determining the reasonableness of a request or refusal:
- the nature of the employer’s workplace or enterprise (including its operational requirements), and the nature of the work performed by the employee;
- the employee’s personal circumstances, including family responsibilities;
- whether the employee could reasonably expect that the employer might request work on the public holiday;
- 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 work on the public holiday;
- the type of employment of the employee (for example, whether full time, part time, casual or shiftwork);
- the amount of notice in advance of the public holiday given by the employer when making the request;
- in relation to the refusal of a request - the amount of notice in advance of the public holiday given by the employee when refusing the request;
- any other relevant matter
Pay award employees double time for public holidays
||The Pastoral Award 2010 provides for award employees in the dairy industry who work on a public holiday to be paid at the rate of double time.
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Notice of termination and redundancy pay
The NES about notice of termination apply to all national system employers and non-national system employers in WA and their employees.
Written notice of termination
As of 1 January 2010, employers are required to provide written notice of the day of termination of employment. The written notice can be given to the employee in person or delivered or posted to their last known address.
Employees are not required to give written notice. The employee can work the notice period or the employer can pay the employee in lieu of that notice.
If notice is paid out, the employer must pay the full amount the employee would have earned had the minimum notice period been worked.
Paying out the notice period
||If the employment relationship has broken down it may be advisable to pay out the notice period.
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Notice periods are calculated according to the length of the employee’s continuous service. These periods are a minimum only and longer notice periods can be given.
|Employee's period of continuous service
with the employer at the end of the day
notice is given
| Not more than 1 year
|| 1 week
| More than 1 year but not more than 3 years
|| 2 weeks
| More than 3 years but not more than 5 years
|| 3 weeks
| More than 5 years
|| 4 weeks
If the employee is over 45 years old and has completed at least two years of continuous service with the employer at the end of the day the notice is given, the employee is entitled to an extra week’s notice.
Continuous service is the time an employee has spent working for an employer without a break and this needs to be calculated so that the notice period can be worked out.
Unauthorised absences from work do not break continuous service but are not counted when calculating how long the notice period should be.
Employees can only be required to give notice if it is a term of an award or enterprise agreement. Under the Pastoral Award 2010, employees must give the same amount of notice as employers and if they fail to give notice, employers can deduct money from the employee’s termination payments.
However, employees do not have to give the additional week of notice based on the age of the employee and length of service.
Award-free employees can only be required to give notice if it is a term of an enterprise agreement. If employers want to enforce employee notice for award-free employees, they should enter into an enterprise agreement.
Exclusions from notice requirement
The following employees do not have to be given notice:
- employees employed for a specified period of time, for a specified task, or seasonal employees;
- employees whose employment is terminated because of serious misconduct;
- casual employees;
- trainees (other than apprentices) and whose employment is for a specified period of time or is, for any reason, limited to the duration of the training arrangement.
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Job search entitlement – Pastoral Award 2010
The Pastoral Award 2010 contains a job search entitlement. The Pastoral Award 2010 provides that where an employer has given an employee covered by the Pastoral Award 2010 notice of termination, the employee is entitled to take one day off without loss of pay to look for other work.
The employee can take the day off at a time when it is convenient to the employee after consultation with the employer.
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The NES provide that all employees who have been employed for 12 months or more and who are not employed by a ‘small business employer' (see definition below) are entitled to redundancy pay if the employee’s employment is terminated:
(a) because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or
(b) because of the insolvency or bankruptcy of the employer.
What is a small business employer?
||'Small business employer' means employers with less than 15 employees. Regular casual employees are included, as are employees in any associated entities.
Exclusions from redundancy payments apply, including:
- employees engaged for less than a year;
- an employee employed for a specified period of time, for a specified task, or for the duration of a specified season;
- an employee whose employment is terminated because of serious misconduct;
- a casual employee;
- an employee (other than an apprentice) to whom a training arrangement applies and whose employment is for a specified period of time or is, for any reason, limited to the duration of the training arrangement
Redundancy pay period
| At least 1 year but less than 2 years
|| 4 weeks
| At least 2 years but less than 3 years
|| 6 weeks
| At least 3 years but less than 4 years
|| 7 weeks
| At least 4 years but less than 5 years
|| 8 weeks
| At least 5 years but less than 6 years
|| 10 weeks
| At least 6 years but less than 7 years
|| 11 weeks
| At least 7 years but less than 8 years
|| 13 weeks
| At least 8 years but less than 9 years
|| 14 weeks
| At least 9 years but less than 10 years
|| 16 weeks
| At least 10 years
|| 12 weeks
Amount of redundancy pay
Redundancy pay is based on years of continuous service with an employer, and is calculated on the employee’s base rate of pay for ordinary hours of work. The base rate of pay does not include any of the following:
- incentive based payments and bonuses;
- monetary allowances;
- overtime or penalty rates;
- any other separately identifiable amounts
Fair Work Information Statement
The NES require all employers to give each new employee a copy of the Fair Work Information Statement prior to or as soon as practicable after commencement of employment
The Fair Work Information Statement contains information about the roles of the Fair Work Commission and the Fair Work Ombudsman, the National Employment Standards, modern awards, agreement making and freedom of association.It also contains information on individual flexibility arrangements, employee records and privacy and termination of employment.
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