Let’s talk about leave. Your employees are entitled to paid time off, however their entitlements can depend on a number of different criteria. In this article we’ll cover everything you need to know about your obligations as an employer, the rights of employees within Australia and how much leave your employees are entitled to, depending on their employment status, including:
- 1. Industry awards
- 2. National Employment Standards (NES)
- 3. Types of employment
- 4. Leave entitlements
Most employees are entitled to minimum pay rates and certain employment conditions that are detailed in the relevant award or agreement related to their employment industry. The following awards cover most, if not all, forms of hospitality businesses:
- Fast Food Industry Award
- Hospitality Industry Award
- Registered and Licenced Clubs Award
- Restaurant Industry Award
It’s important for hospo employers to understand exactly which award applies to their business and employees to ensure you’re always operating under the correct legal guidelines. While some employees aren’t always covered by an award or agreement, they are always entitled to a minimum wage, no matter their type of employment, and (in most cases) the 10 National Employment Standards (NES).
National Employment Standards
The National Employment Standards are 10 minimum employment standards that provide protection to all people working in Australia.
- Maximum weekly hours
- Requests for flexible working arrangements
- Parental leave and related entitlements
- Annual leave
- Personal/carer’s leave, compassionate leave and unpaid family and domestic violence leave
- Community service leave
- Long service leave
- Public holidays
- Notice of termination and redundancy pay
- Provision of Fair Work Information Statement
Types of employment
There are three types of employment that employees can be offered in Australia; full-time, part-time and casual. It’s important to know the difference between the types of employment because pay rates, leave and other entitlements are often different for each.
Full-time employee: usually works an average of 38 hours per week, can be on a permanent or fixed-term contract and is entitled to paid leave such as annual leave or carer’s leave.
Part-time employee: usually works less than 38 hours per week, has regular rostered hours, can be on a permanent or fixed-term contract and is entitled to paid leave such as annual leave or carer’s leave.
Casual employee: usually works irregular hours, has no guaranteed hours of work, doesn’t get paid sick or annual leave.
Annual leave, also known as holiday pay, is a legal requirement for all full-time and part-time employees so they can be paid while taking time off work. Part-time employees get the same minimum entitlements (such as sick leave and annual leave) as a full-time employee, but on a pro-rata basis. Casual employees however, are not entitled to any form of annual leave and are instead paid more per hour to compensate for this.
Full time and part time workers are entitled to 4 weeks (or 20 days) off for every 12 months worked. For example, James, a full-time waiter at your restaurant, works 38 hours per week over 5 days. Over the year he is entitled to 20 days of annual leave. Whereas Sarah, a part-time bartender, works 19 hours per week over 3 days. She is therefore entitled to 10 days of annual leave over a 12-month period.
Annual leave entitlements begin accumulating from the first day the employee works and they can take leave as soon as they accumulate it.
Sometimes your staff may (or may not) be required to work on a public holiday, if so there are certain regulations that need to be followed:
- If a full-time or part-time employee works their normal hours on a public holiday they are entitled to penalty rates depending on their industry award. For example, the Restaurant Industry Award has a penalty rate of 225%.
- If an employee receives a yearly salary, rather than an hourly rate, and is required to work on a public holiday they are entitled to a day off in lieu, or a day added to their annual leave entitlement, in addition to receiving their normal salary for that day.
- If full-time or part-time employees are not required to work on a public holiday they should receive their normal ordinary rate of pay for the day of work, and no deduction from their leave balance.
- If a part-time employee doesn’t normally work on the day a public holiday falls, they are not entitled to payment.
Full-time and part-time employees who have worked for their employers for at least 12 months are entitled to take up to 12 months unpaid parental leave after they have:
- Given birth
- Had a partner give birth
- Adopted a child under the age of 16
Employees who are eligible for parental leave are also entitled to request a further 12 months leave and have the right to return to their old job once their leave has ended.
Casual employees are only eligible for 12 months unpaid parental leave if they have been working for their employer on a regular basis for at least 12 months.
Sick and carer’s leave
Full-time and part-time employees are entitled to 10 days paid sick and/or carer’s leave per year on a pro-rata basis. Sick and carer’s leave allows employees to take paid time off to help them deal with illness, injury, family emergencies, bereavement and caring for an ill family member. As an employer you have the right to ask for evidence, such as a medical certificate, to confirm why an employee was unable to attend work.
Casual employees are not entitled to any paid sick or carer’s leave, however they are allowed to take this type of leave unpaid.
Leave entitlements for hospo workers
As a business owner it can be tricky to understand many of the legal requirements concerning employee entitlements. However, failing to follow these guidelines can land you in hot water. Therefore, it’s important to understand which industry award applies to your employees and the different entitlements for your full-time, part-time and casual employees so everyone is treated fairly.
For more information please visit business.gov.au
Note: The information provided in this article is general in nature and is not intended to substitute for professional advice.
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