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Fighting For Australian Workers Who Have Had Their Wages Stolen By Their Boss

All employees are entitled to take many different types of leave, including annual leave, sick or carer’s leave, compassionate leave, public holidays, maternity/paternity leave, long service and workers compensation.  

Some employers seek to deprive their workers of their right to accrue or take leave.

This is a form of wage theft and it is unlawful.

Annual leave

Family at beach enjoying annual leave which employees are entitled toAll employees (except for casual employees) get paid annual leave.

Full-time and part-time employees get 4-weeks of annual leave, based on their ordinary hours of work.

Some shift workers may get up to 5-weeks of annual leave per year.

Annual leave accumulates from the first day of employment, even if an employee is in a probation period.

The leave accumulates gradually during the year and any unused annual leave will roll over from year to year.

Sick and carer’s leave

Sick and carer's leaveSick and carer’s leave (also known as personal leave or personal / carer’s leave) lets an employee take time off to help them deal with personal illness, caring responsibilities and family emergencies.

Sick leave can be used when an employee is ill or injured.

An employee may have to take time off to care for an immediate family or household member who is sick or injured or help during a family emergency.

This is known as carer’s leave but it comes out of the employee’s personal leave balance.

Compassionate leave

Compassionate leaveEmployees can take compassionate leave if:

  • a member of their immediate family or household dies, or contracts or develops a life-threatening illness or injury
  • a baby in their immediate family or household is stillborn
  • they have a miscarriage
  • their current spouse or de facto partner has a miscarriage.

Employees are entitled to 2 days compassionate leave each time they meet the criteria.

Employees don’t accumulate compassionate leave and it’s not a part of their sick and carer’s leave entitlement.

Full-time and part-time employees receive paid compassionate leave.

Casual employees receive unpaid compassionate leave.

Compassionate leave can’t be cashed out.

An employee taking compassionate leave has to give their employer notice as soon as they can (this may be after the leave has started).  The employee has to tell the employer how much leave they are taking, or expect to take, and when.

An employer can request evidence about the reason for compassionate leave (for example, a death or funeral notice or statutory declaration).

This request for evidence has to be reasonable. If the employee doesn’t provide the requested notice or evidence they may not get compassionate leave.

Parental leave

Parental leaveParental leave lets employees take time away from work for the birth or adoption of a child. The term ‘parental leave’ can include:

  • unpaid parental leave
  • government-funded Parental Leave Pay
  • employer-funded paid parental leave.

Unpaid parental leave

Under the Fair Work Act, employees (including regular casual employees) who have worked with their employer for at least 12 months can take unpaid parental leave when they or their partner are to give birth or adopt a child.

These employees can take up to 12 months of unpaid parental leave and can also request an extra 12 months of unpaid parental leave (up to a total of 24 months). The request to extend the leave for an additional 12 months must be in writing and given to the employer at least 4 weeks before the end of the first leave period.

Employees taking unpaid parental leave have a return to work guarantee. This gives them the right to return to the position they held before their leave started. If their old position doesn’t exist when they return, the employee is entitled to an available position which is nearest in status and pay to their pre-parental leave position, and for which they are suitably qualified.

Government funded Parental Leave Pay

The Australian Government provides Parental Leave Pay (PLP) for working parents at the national minimum wage for a maximum period of 18 weeks. This scheme gives eligible employees a payment during their leave, it doesn’t extend the period of leave they can take.

Employees can split their PLP over 2 periods (a set period and a flexible period).

The set period is a minimum period of 60 days that must be taken within a continuous block, and within 12 months of the adoption or birth of a child. It can be paid before, after, or at the same time as other entitlements, such as annual leave, and employer-funded paid parental leave. The set period ends once the employee returns to work (except for ‘keeping in touch’ days).

The flexible period is a period of up to 30 days that can be used as individual days or in one or more blocks as negotiated between the employer and the employee. It must be used within 24 months of a child’s birth or adoption. It usually starts after the set period has ended and after the employee has returned to work.

Dad and partner pay

Working dads or partners who take unpaid leave in the first year after the child’s birth or adoption can access dad and partner pay. Eligible dads or partners (including same-sex partners) get up to 2 weeks of government-funded pay at the national minimum wage.

Long service leave

Long service leaveMost employees’ entitlement to long service leave comes from long service leave laws in each state or territory. These laws set out:

  • how long an employee has to be working to get long service leave (for example, after 7 years)
  • how much long service leave the employee gets.

In some states and territories long serving casuals are eligible for long service leave.

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LAST UPDATED: April 2022

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