Other leave (long service, compassionate, parental, personal) - employer questions about WorkChoices

Q&A

Other leave (long service, compassionate, parental, personal) - employer questions about WorkChoices

Here are some questions and answers addressing various forms of leave in the WorkChoices environment.

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Here are some questions and answers addressing various forms of leave in the WorkChoices environment.

As with all articles with respect to WorkChoices the commentary is based on the presumption that the employer is a constitutional corporation, unless otherwise specified.

Long service leave - cashing-out

Q. Our employees are currently employed under a pre-reform certified agreement. The personal/carer's leave provisions are 'called in' from the provisions of the Federal Metal, Engineering and Associated Industries Award (five days first year and eight days thereafter and ordinary pay excludes penalty rates). Because this award is now subject to the personal/carer's leave Standard do we now have to observe 10 days per year under our agreement?

A. Long service leave is subject to the relevant State, Territory or pre-reform industrial instrument's long service leave provision applicable to that employee. The relevant legislation in some jurisdictions automatically allows cashing out of long service leave, eg South Australia, Western Australia and Queensland (in certain circumstances), otherwise this can only be achieved by having the provision inserted into a new workplace agreement.

Leave and specified hours worked

Q. Our employees are currently employed under a pre-reform certified agreement. The personal/carer's leave provisions are 'called in' from the provisions of the Federal Metal, Engineering and Associated Industries Award (five days first year and eight days thereafter and ordinary pay excludes penalty rates). Because this award is now subject to the personal/carer's leave Standard do we now have to observe 10 days per year under our agreement?

A. There is no definition of 'specified number of hours' in the WorkChoices legislation.

It's presumed that an employee can only have one number of specified hours - not different specified hours for the purposes of pay, annual leave and/or personal/carer's leave. Therefore, the specified hours would be those specified in the employee's contract of employment (or applicable industrial instrument). If the contract is informal, and the contracted job is 'full-time' and there is no industrial instrument which specifies full-time hours, the employee is taken to be employed to work 38 hours.

Compassionate leave and the Standard

Q. Our employees are currently employed under a pre-reform certified agreement. The personal/carer's leave provisions are 'called in' from the provisions of the Federal Metal, Engineering and Associated Industries Award (five days first year and eight days thereafter and ordinary pay excludes penalty rates). Because this award is now subject to the personal/carer's leave Standard do we now have to observe 10 days per year under our agreement?

A. The answer is no.

The compassionate leave provision under WorkChoices applies to all full-time and part-time employees (including non-award employees) employed by a constitutional corporation and its terms prevail over the compassionate leave provisions under a pre-reform Federal award or NAPSA.

Employees covered by an existing Federal or State agreement are not covered by the Standard until the current agreement is terminated or replaced.

Parental leave and more generous provisions

Q. Our employees are currently employed under a pre-reform certified agreement. The personal/carer's leave provisions are 'called in' from the provisions of the Federal Metal, Engineering and Associated Industries Award (five days first year and eight days thereafter and ordinary pay excludes penalty rates). Because this award is now subject to the personal/carer's leave Standard do we now have to observe 10 days per year under our agreement?

A. The parental leave provision contained in the pre-reform Federal award will prevail as it is more generous in the quantum of parental leave than the Standard.

The 'family provision' was also inserted into all NSW State awards prior to WorkChoices, consequently NSW NAPSAs will override the Standard.

Q. Our employees are currently employed under a pre-reform certified agreement. The personal/carer's leave provisions are 'called in' from the provisions of the Federal Metal, Engineering and Associated Industries Award (five days first year and eight days thereafter and ordinary pay excludes penalty rates). Because this award is now subject to the personal/carer's leave Standard do we now have to observe 10 days per year under our agreement?

A. With respect to parental leave, generally no - so where one set of conditions prevails, it prevails for all aspects of parental leave, although there are two conditions from the Standard that continue to apply regardless of the provisions in the award. These provisions are the 'return to work' and 'special maternity leave' provisions contained in the Standard. Therefore, in these circumstances, the parental leave entitlements must be read in conjunction with the award and the Standard.

Personal/carer's leave, agreements and the Standard

Q. Our employees are currently employed under a pre-reform certified agreement. The personal/carer's leave provisions are 'called in' from the provisions of the Federal Metal, Engineering and Associated Industries Award (five days first year and eight days thereafter and ordinary pay excludes penalty rates). Because this award is now subject to the personal/carer's leave Standard do we now have to observe 10 days per year under our agreement?

A. The answer is no.

The provisions of a pre-reform agreement are not subject to the WorkChoices Standard, so in this case, the personal/carer's leave entitlement will remain at five days and eight days respectively. There would have been an issue if the Federal Metals Award had been rescinded by WorkChoices but the Award continues to exist (to cover employers who are a sole trader or partnership), therefore the provisions continue to form part of the provisions of the agreement.

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