Short-term employees and their employment entitlements

Analysis

Short-term employees and their employment entitlements

Employees working three months or less under any individual employment arrangement have entitlements that some employers do not realise. This article summarises the entitlements of short-term employees.

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Employees working three months or less under any individual employment arrangement have entitlements that some employers do not realise. This article summarises the entitlements of short-term employees.
 
Certain industry sectors have a high incidence of short-term employment because of the nature of the industry. Examples would include hospitality, retail and agriculture sectors, which attract a high proportion of seasonal workers and itinerant workers.
 
An employer may believe that an employee who works less than (say) three months does not have an entitlement to many conditions of employment, although this is certainly not the case.
 
For the purposes of this commentary a ‘short-term employee’ is a person whose total period (or anticipated period) of employment is less than three months.
 
Entitlements
 
A short-term employee’s entitlement to particular employment conditions will depend on the nature of the employment (ie full-time, part-time or casual employment), the relevant employment legislation and the applicable industrial instrument.
 
The minimum entitlements under the National Employment Standards (NES) apply to all full-time and part-time employees covered by the Fair Work Act 2009.
 
A casual employee is entitled to certain provisions under the NES in relation to unpaid leave, as well as conditions prescribed by the applicable industrial instrument.
 
Annual leave
 
Under the NES, a full-time or part-time employee accrues annual leave progressively based on their continuous service with the employer.
 
There is no minimum period of employment that must be served before an eligible employee is entitled to take annual leave or be entitled to payment of accrued annual leave upon termination of employment. Annual leave provisions may also apply under the applicable modern award or enterprise agreement.
 
Casual employees
 
Under most NSW NAPSAs and some pre-reform federal awards, a casual employee may have an entitlement to an additional one-twelfth of the casual’s ordinary hourly rate as compensation for annual leave. In this circumstance, a casual employee may continue to receive this entitlement because of the ‘transitional provisions’ of the relevant modern award. Reference should be made to the applicable modern award to determine a casual employee’s entitlement on this matter.
 
Personal/carer’s leave (including compassionate leave)
 
As with annual leave, a full-time or part-time employee may take any accrued paid personal/carer’s leave regardless of their length of service.
 
All employees, including a casual employee, are entitled to up to 2 days of unpaid carer’s leave for each permissible occasion because of a family or household member’s illness or injury or an unexpected emergency affecting the member.
 
Some modern awards may provide that an employee terminated by the employer who is terminated and re-engaged within a specified period (say six months) is entitled to the balance of personal/carer’s leave to the employee’s credit at the time of the employee’s termination.
 
Compassionate leave
 
A full-time or part-time employee is also entitled to up to two days of paid compassionate leave upon the death of a family or household member, or a member is suffering a life-threatening illness or injury.
 
A casual employee is entitled to two days of unpaid compassionate leave in the same circumstances.
 
As with personal/carer’s leave, there is no qualifying period of employment that must be served before an employee is entitled to paid or unpaid compassionate leave.
 
Superannuation Guarantee 
 
For the purposes of the Superannuation Guarantee (SG) employer contribution, an employee is anyone who receives salary or wages in return for their labour or services.
 
The following categories of employee are eligible for employer contributions under the SG, regardless of their period of service with the employer:
  • an employee aged between 18 years and 70 years
  • are paid $450 (before tax) or more in a particular month
  • work full-time, part-time or on a casual basis
  • temporary residents on selected visas may also be eligible.
 
An employer may also have to make SG contributions for contractors who are paid under a contract that is wholly or principally for labour, even if the worker quotes an ABN.
 
The following employees are NOT eligible for SG employer contributions:
  • those paid less than $450 (before tax) in a calendar month
  • an employee who is under 18 years of age and is working 30 hours or less per week
  • an employee who is a foreign executive who holds a certain visa or entry permit under the migration regulation
  • those paid to do work of a domestic or private nature for not more than 30 hours per week (eg nanny or housekeeper)
  • one who is a member of the Army, Navy or Air Force Reserve
  • an employee temporarily working in Australia for an overseas employer and who is covered by a bilateral social security agreement. A Certificate of coverage must be presented to receive the exemption.
 
Notice of termination
 
The minimum period of notice of termination of employment under the Fair Work Act applies when an employer terminates a full-time or part-time employee’s employment.
 
However, this provision does not apply to an employee employed as a casual or an employee employed for a specified period of time or a specified task.
 
The amount of notice required to be given when an employee resigns, or the notice period required to be given to (or by) a casual employee is determined by the applicable industrial instrument (eg modern award or enterprise agreement), otherwise the individual contract of employment.
 
Unfair/unlawful dismissal
 
To claim unfair dismissal, an employee must have completed the relevant qualifying period of employment — 6 months where the employer employs 15 employees or more, or 12 months where the employer employs fewer than 15 employees (total head count).
 
There is no qualifying period of employment in relation to a claim of general protections (unlawful) dismissal.
 
A general protections (unlawful) dismissal is where the dismissal was on the grounds of, for example, discrimination or because of the employee’s temporary absence from work due to illness or injury.
 
Public holidays
 
The public holidays listed under the Fair Work Act, as well as those prescribed in industrial instruments, do not require an employee to serve a qualifying period of employment before becoming entitled to a paid public holiday, provided the holiday falls on a day the employee is normally rostered to work ordinary hours. This would include a casual employee who is rostered on for the public holiday.
 
Source: Paul Munro, IR Consultant.
 
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