Employee leave entitlements and what Australian employers must provide

Every Australian employer that hires staff must provide at least the minimum leave entitlements set out in the National Employment Standards (NES), which sit in Part 2-2 of the Fair Work Act 2009 (Cth). These are legal floors, not starting points for negotiation. A contract, modern award or enterprise agreement cannot take a leave entitlement below the NES, although any of them can give employees more (s 55 of the Fair Work Act 2009 (Cth)).

Leave is also where compliance problems tend to surface first in a small business. Wrong accruals, an employee terminated without their untaken annual leave being paid out, or a casual worker who was owed paid leave without anyone realising it can turn into an underpayment claim or a Fair Work Ombudsman (FWO) investigation. This guide sets out the leave duties that apply to you as an employer, who they cover, the records you must keep, and what is at stake if you get it wrong.

Who has to provide leave entitlements

The NES applies to national system employees, which covers most people who work for a private sector business in Australia. If you employ staff through a company, partnership, trust or sole trader structure, the Fair Work Act almost certainly applies to you. A small number of employers, mainly unincorporated businesses in Western Australia, sit under a separate state industrial relations system, so it is worth confirming which system covers your business before you rely on this guide.

Within the national system, three things determine how leave applies to a particular worker:

• Employment type: full-time and part-time employees accrue paid annual leave and paid personal/carer's leave. Casual employees do not, but they still hold a range of other leave entitlements, including paid family and domestic violence leave.
• Award or agreement coverage: a modern award or enterprise agreement can add to NES entitlements, for example annual leave loading or extra leave for shift patterns, but can never reduce them.
• State or territory law: long service leave sits outside the NES entirely and is set by state and territory legislation, which varies around the country.

Annual leave: the four-week floor

For each year of service, a full-time employee who is not a casual is entitled to 4 weeks of paid annual leave, or 5 weeks if an applicable modern award or enterprise agreement defines them as a shiftworker for NES purposes (s 87 of the Fair Work Act 2009 (Cth)). The entitlement accrues progressively during each year of service. A part-time employee accrues the same entitlement on a pro rata basis according to their ordinary hours of work.

While an employee is on annual leave, you must pay them at their base rate of pay for their ordinary hours (s 90(1)). When employment ends, any accrued but untaken annual leave must be paid out, at the amount the employee would have been paid had they taken the leave (s 90(2)). This termination payout is one of the most common sources of underpayment claims, because it is easy to miss in a final pay run.

Annual leave loading, usually around 17.5 per cent, is not part of the NES. It comes from the applicable award or agreement, so check the instrument that covers each employee before assuming loading applies.

Personal and carer's leave: paid days and reasonable evidence

A non-casual employee is entitled to 10 days of paid personal/carer's leave for each year of service, accruing progressively and carrying over from year to year (s 96 of the Fair Work Act 2009 (Cth)). The leave can be taken in two situations: the employee is not fit for work because of personal illness or injury, or they need to provide care or support to an immediate family member or household member who is ill, injured or affected by an unexpected emergency (s 97). Payment is at the base rate of pay.

An employee who takes this leave must give you notice as soon as practicable, and you may ask for evidence that would satisfy a reasonable person the leave is being used for a permitted reason (s 107). A medical certificate or statutory declaration is the usual standard. The test is reasonableness, so demanding a certificate for every single sick day, or refusing to accept a statutory declaration, can itself create a dispute.

Compassionate leave: two days per occasion

Every employee, including a casual, is entitled to 2 days of compassionate leave for each permissible occasion (s 104 of the Fair Work Act 2009 (Cth)). A permissible occasion is when an immediate family member or household member dies, contracts a personal illness or sustains an injury that poses a serious threat to their life, when a child is stillborn, or when the employee or their spouse or de facto partner has a miscarriage.

For a non-casual employee, compassionate leave is paid at the base rate of pay. For a casual employee it is unpaid (s 106). The same notice and evidence requirements apply, and you should apply them sensitively given the circumstances in which the leave is taken.

Unpaid carer's leave: the fallback when paid leave runs out

All employees, including casuals, are entitled to 2 days of unpaid carer's leave for each occasion when an immediate family member or household member requires care or support because of illness, injury or an unexpected emergency (s 102 of the Fair Work Act 2009 (Cth)). The leave is taken as a single continuous period of up to 2 days, or in shorter agreed periods.

There is one important limit: an employee cannot take unpaid carer's leave if they could instead take paid personal/carer's leave (s 103(3)). In practice, this means unpaid carer's leave is the safety net once an employee's paid balance is exhausted, which is a common situation for a worker with a long-running caring responsibility.

Parental leave: twelve months, and how to extend it

The NES gives eligible employees 12 months of unpaid parental leave, with a right to request a further 12 months, so long as the total does not extend beyond 24 months after the birth or placement of the child (ss 67, 76 of the Fair Work Act 2009 (Cth)). An employee other than a casual must have completed at least 12 months of continuous service to qualify. A casual must have been employed on a regular and systematic basis for a sequence of periods over at least 12 months, with a reasonable expectation of continuing employment.

An extension request must be made in writing at least 4 weeks before the employee's available parental leave period ends, and you must respond in writing within 21 days (s 76A). You can refuse an extension only after genuinely discussing it with the employee and attempting to reach agreement, and the refusal must be based on reasonable business grounds. Separately, the Australian Government's paid parental leave scheme provides government-funded payments to eligible parents; that scheme operates apart from your obligations under the Fair Work Act, and eligibility is assessed by Services Australia.

Family and domestic violence leave: ten days upfront for everyone

The most recently added NES entitlement is paid family and domestic violence (FDV) leave. Every employee, full-time, part-time or casual, is entitled to 10 days of paid FDV leave in each 12 month period (s 106A of the Fair Work Act 2009 (Cth)). The full 10 days are available at the start of each 12 month period of employment, the leave does not accumulate from year to year, and it applies in full to casual and part-time employees. It can be taken as one continuous period or in separate periods of one or more days.

An employee may take the leave if they are experiencing family and domestic violence and need to do something to deal with its impact, such as arranging their safety, attending court, accessing police services or attending counselling, and it is impractical to do that outside work hours (s 106B). Non-casual employees are paid their full rate as if they had worked; casuals are paid for the hours they were rostered to work (s 106BA).

Evidence can be requested, but only to the standard that would satisfy a reasonable person. Treat requests and any supporting information confidentially, restrict access to payroll and HR staff who genuinely need it, and note that pay slips must not carry prescribed FDV leave information (s 536(2) of the Fair Work Act 2009 (Cth)). This is the entitlement employers most commonly fail to set up in payroll, because casual workers are so often assumed to have no leave at all.

Community service leave and jury duty

An employee who engages in an eligible community service activity is entitled to be absent from work for the activity, plus reasonable travel and rest time. Eligible activities are jury service, including attendance for jury selection, and voluntary emergency management with a recognised body such as the SES or a fire service (ss 108, 109 of the Fair Work Act 2009 (Cth)). There is no limit on the amount of community service leave an employee can take (Fair Work Ombudsman).

With one exception, community service leave is unpaid. The exception is jury duty: for a non-casual employee, you must pay make-up pay for the first 10 days of absence, being the difference between any jury pay the employee receives from the court and their base rate of pay for the ordinary hours they would have worked (s 111 of the Fair Work Act 2009 (Cth), Fair Work Ombudsman). You can ask the employee for evidence of what the court is paying. Casuals receive no payment for jury duty under the NES, though state laws or an award may provide more.

Public holidays: the right to be absent

An employee is entitled to be absent from work on a day or part-day that is a public holiday in the place where they are based (s 114 of the Fair Work Act 2009 (Cth)). You can request that an employee work on a public holiday, but only if the request is reasonable, and the employee can refuse if the request is unreasonable or their refusal is reasonable. Factors such as the nature of the workplace, the employee's personal circumstances including family responsibilities, and whether the employee could reasonably expect the request are all weighed in the assessment.

When an employee is absent on a public holiday under this entitlement, you must pay them at their base rate of pay for their ordinary hours on that day (s 116). A casual who is not rostered to work that day is not entitled to payment. Penalty rates for actually working a public holiday come from the applicable award or agreement, not the NES.

Long service leave: a state-based layer on top

Long service leave is not part of the NES. It is set by state and territory legislation, and the rules differ around the country: qualifying periods are typically around 7 to 10 years of continuous service, some states allow pro rata payment when employment ends after a shorter period, and casual service counts towards the entitlement in some jurisdictions but not others. Because the rules are genuinely state-specific, the reliable move is to check the legislation in the state where your employee works, or ask a lawyer to confirm what applies.

Records and pay slips: what you must keep and give

You must make and keep employee records for 7 years for each employee, and the records must be readily accessible to a Fair Work Inspector, legible and in English (s 535 of the Fair Work Act 2009 (Cth), Fair Work Ombudsman). For leave, the records must capture any leave taken and how much leave the employee has. It is unlawful to make or keep a record you know is false or misleading.

Pay slips must be given within one working day of each payment and contain the prescribed information (s 536 of the Fair Work Act 2009 (Cth)). Showing leave balances on pay slips is common practice but not a legal requirement; what matters is that your underlying leave records are complete and accurate.

What happens if you get leave wrong

The NES leave provisions are civil remedy provisions. A court can order a pecuniary penalty of up to 60 penalty units per contravention for an individual and 300 penalty units for a body corporate, which is five times the individual maximum, with the value of a penalty unit indexed each year (ss 539, 546 of the Fair Work Act 2009 (Cth)). Serious contraventions carry much higher maximums. Beyond penalties, the FWO can issue infringement notices, compliance notices and enforceable undertakings, and it regularly litigates underpayment matters.

Two consequences deserve particular attention. First, if you fail to keep proper records, the burden can shift: in proceedings, the court may presume that an employer's allegations about what was paid or what leave was taken are correct unless the employer disproves them. Second, taking adverse action against an employee because they exercised a workplace right, such as requesting or taking leave, can expose you to a separate general protections claim. In other words, the compliance cost of getting leave wrong is not a fine in isolation; it cascades into back-pay, penalties, and employment disputes.

A compliance checklist for leave

Run through these checks to keep your leave obligations in order:

• Confirm coverage: check whether each employee is covered by the Fair Work Act and which modern award, if any, applies.
• Classify correctly: record whether each employee is full-time, part-time or casual, because that drives which leave applies.
• Track accruals: maintain accurate running balances for annual leave and paid personal/carer's leave.
• Pay out on termination: calculate and pay any accrued untaken annual leave in the final pay run.
• Grant FDV leave upfront: make sure payroll gives all staff, including casuals, 10 days of paid FDV leave at the start of each 12 month period.
• Set an evidence standard: adopt a reasonable evidence policy for personal/carer's leave and apply it consistently across the team.
• Handle jury duty correctly: pay make-up pay for the first 10 days of jury service for permanent staff.
• Keep records for 7 years: store leave records somewhere accessible, legible and in English.
• Check state rules: confirm the long service leave rules for the state where each employee works.
• Review documents: update contracts and policies whenever awards change or new leave types are introduced.

Where a lawyer adds value

Leave law is high-volume and detail-heavy, and the mistakes tend to be factual rather than conceptual: which award covers a worker, whether a casual has become regular and systematic, whether a termination payout was calculated correctly. A lawyer can confirm award coverage and classification, review your contracts and staff handbook so the paperwork matches your leave practices, assist if the FWO contacts you about a complaint or audit, and represent you if a dispute ends up in court. If you are negotiating an enterprise agreement, the interaction between the agreement and the NES is exactly the kind of thing to have checked before it is approved.

The leave duty employers most often miss

If there is one assumption that causes the most trouble, it is that casual employees have no leave entitlements. They do not accrue paid annual leave or paid personal/carer's leave, but they are entitled to 10 days of paid FDV leave in full at the start of each 12 month period, 2 days of unpaid carer's leave per occasion, unpaid compassionate leave, community service leave including jury duty, and unpaid parental leave once they have worked regular and systematic hours for at least 12 months. The practical step to take this week is to open your payroll system and confirm that FDV leave is set up to be available upfront for every employee, including casuals, and that your leave records capture balances accurately. Those two checks address the entitlement employers overlook and the record-keeping failure that shifts the burden of proof against them if a dispute arises.