Q. Our company recently employed a shop assistant. She has been employed for about one month but has been absent for two days due to her child’s illness. While the employee has provided reasonable evidence, she has been advised that there is insufficient accrual of leave to cover the two working days. She has asked whether carer’s leave could be paid in advance.

Is this possible under the paid personal/carer’s leave provisions of the National Employment Standards (NES)? Does the employee need to complete a minimum period of service to access accrued paid personal or carer’s leave?

A. Under the Fair Work Act section 96 (2), an employee’s entitlement to paid personal/carer’s leave accrues progressively during a year of service according to the employee’s ordinary hours of work. The NES does not prescribe a minimum period of employment before an entitlement to personal or carer’s leave applies. Employees do not need to wait until 12 months of service have been completed before taking their accrued paid personal or carer’s leave.

In effect, the Fair Work Act provides that an employee will accrue the equivalent of 10 days of paid personal/carer’s leave over 12 months of service. Leave entitlement would be calculated by reference to the employee’s relevant period of service and ordinary hours of work.

An employee with one month of service with the employer would have accrued approximately 0.8333 days of paid leave (1/12th of 10 days). In this case, the employee is entitled to unpaid carer’s leave (1.1667 days) for the balance of the absence.

The applicable modern award (General Retail Industry Award) does not contain terms that allow paid personal/carer’s leave to be taken in advance of accrual.

Leave accrues based on the employee’s ordinary hours, which are calculated on actual time in service, not completed months or weeks of service.

The Fair Work Act does not specifically provide for taking paid personal or carer’s leave in advance, nor is it mentioned that a modern award or an enterprise agreement can contain such a term.

Consequently, it is presumed that paid personal/carer’s leave cannot be taken in advance of the accrual of the entitlement.

The amount of accrued paid carer’s leave that can be taken each year is not capped. An employee must use all of their accrued paid personal/carer’s leave before accessing unpaid carer’s leave.  

For employees on an employment contract who are not covered by an award and have benefits above the minimum NES, it may be possible to negotiate taking leave in advance between the employer and employee.

 

Annual leave in advance

While no provision exists to provide paid personal or carer’s leave in advance, a modern award may contain terms that allow paid annual leave to be taken in advance of accrued entitlement.

 

The bottom line

The Fair Work Act does not explicitly provide for taking paid personal or carer’s leave in advance, nor is it mentioned that a modern award or an enterprise agreement can contain such a term.

Consequently, it is presumed that if paid personal or carer’s leave is provided in advance, it cannot be recovered from any payments due if the worker's employment is terminated.