Employment rights

About your entitlements

This page talks about minimum employment entitlements, which means the least payment or other benefit that an employee should get by law. These entitlements are outlined in the National Employment Standards (NES) under the Fair Work Act. You can be paid more or get additional benefits (such as more leave) under other state or federal laws, a modern award, an enterprise agreement, your employment contract, or an employer policy.

Modern awards are documents made by the Fair Work Commission outlining minimum conditions of employment. These awards cover employees and employers in certain industries (such as the building, manufacturing, health, fast food, and retail industries) or occupations (such as clerical workers). Most employees are covered by an award.

Enterprise agreements are made between an employer and some or all employees, often at a particular site. Usually, if an enterprise agreement applies to you, the relevant modern award does not.

Importantly, you may get more generous entitlements under an award or enterprise agreement than what is set out on this page.

If you are unsure whether you are covered by an award or enterprise agreement, contact JobWatch on (03) 9662 1933 or the Fair Work Ombudsman on 13 13 94.

If you live in a bushfire-prone area, you should have a safety plan to help you prepare for and respond to a bushfire. As part of that plan, you should think about the impacts of a fire on your work (whether your home, your employer's home, or an external place of work is at risk). Try to identify your options and discuss these with your employer before a crisis occurs. You might be able to agree in advance to certain changes to your working arrangements or to taking certain types of leave. This can save a lot of time and anxiety if there is a fire.

The same applies if you live a flood-prone area – try to plan ahead so you and your employer are ready to deal with a disaster.

Types of leave

This section explains the types of leave you can take to deal with, or prepare for, a disaster.

If you are a full-time or part-time employee and you are absent from work due to a disaster, you may be entitled to:

• paid personal/carer's leave (sick leave)
• paid annual leave
• paid compassionate leave
• paid long service leave.

Some eligibility requirements apply. Full-time and part-time employees may also be entitled to unpaid carer's leave or unpaid community service leave.

If you are a casual employee, you may be entitled to:

• unpaid carer's leave
• unpaid compassionate leave
• unpaid community service leave
• paid long service leave
• paid personal or carer's pay under the Victorian Government's Sick Pay Guarantee Program.

Some eligibility requirements apply. Additionally, if you cannot attend work due to a disaster, your employer may let you to take unpaid leave.

Personal/carer’s leave (sick leave)

You may take paid personal/carer's leave if you are away from work because you are:

• not fit for work due to a personal illness or injury (for example, you are injured during a bushfire or flood)
• caring for an immediate family member or a member of your household who has an illness or injury or is impacted by an unexpected emergency (for example, if your child's school is closed due to a bushfire or flood).

If you need to take leave for one of these reasons, tell your employer as soon as possible (ideally before your absence) and let them know how long you expect to be away from work.

Under the NES:

• full-time employees are entitled to 10 days of paid personal/carer's leave per year of service with their employer
• part-time employees are entitled to paid personal/carer's leave on a pro rata basis proportionate to their hours of work
• casual employees are not entitled to paid personal/carer's leave.

Personal/carer's leave accrues (grows) during a year of service with your employer according to your ordinary hours of work and, if not taken, accumulates (carries over) from year to year. You are entitled to take as much personal/carer's leave as you have accrued, provided the reason for taking that leave persists and you comply with all the notice and evidence requirements.

Your employer can ask you for evidence to support your personal/carer's leave (for example, a medical certificate or a statutory declaration). You should provide any requested evidence to your employer as soon as you reasonably can, because a failure to give notice or evidence if requested means you may not be entitled to that leave. Your employer may have specific requirements about what evidence they need and when they need you to provide it. If a modern award or enterprise agreement covers you, it might also specify the kind of evidence you must provide.

Unpaid personal/carer's leave

If you can take paid personal/carer’s leave, you will not be permitted to take unpaid leave.

If you do not have any paid personal/carer's leave available, or if you are a casual employee and you are not entitled to paid personal/carer’s leave, you may be entitled to take unpaid carer's leave.

You are eligible for up to two days of unpaid carer's leave on each occasion that a member of your immediate family or household requires care or support because of a personal illness or injury affecting that family member or because of an unexpected emergency. You should provide to your employer the same notice and evidence as if you were taking paid personal/carer’s leave.

Paid personal/carers leave – casual employees and contractors

If you are a casual employee or a contract worker, you may be entitled to paid personal or carer's leave due to a natural disaster-related injury or illness or to care for someone due to a disaster under the Victorian Sick Pay Guarantee. This two-year pilot program commenced on 14 March 2022 and entitles eligible casuals up to 38 hours a year sick and carer's pay.

You must sign up to participate in this program and receive the entitlements.

You can sign up for Sick Pay Guarantee through Services Victoria.

You are eligible to participate in this program if you:

1. have the right to work in Australia
2. are 15 years or older
3. work in Victoria
4. are working an average of 7.6 hours or more each week in at least one eligible job
5. do not have access to paid leave entitlements at any job.

An eligible job includes age and disability carers, cleaners and laundry workers, food preparation assistants, food trades workers, hospitality workers, sales support workers, sales assistants, security officers and guards and other labourers who work in supermarket supply chains.

For more information on eligible jobs, go to the Sick Pay Guarantee information page.

Annual leave

If you have annual leave accrued, you can take paid annual leave for a period agreed between you and your employer. If you cannot attend work due to a disaster, you can ask your employer if you can take a period of your accrued annual leave. Your employer must not unreasonably refuse your request.

Whether or not it is 'unreasonable' for your employer to refuse an annual leave request will depend on the situation. Unless there are exceptional circumstances that require you to be at work, it is likely that a refusal by your employer to allow you to take paid annual leave due to a disaster would be considered unreasonable.

Under the NES:

• full-time employees are entitled to four weeks of paid annual leave per year of service
• part-time employees are entitled to paid annual leave proportionate to their hours of work
• casual employees are not entitled to annual leave.

Annual leave accrues progressively and, if not taken, accumulates (carries over) from year to year.

You may be entitled to more generous annual leave if an award, enterprise agreement or employment contract provides you with an additional entitlement.

Your employer may need you to take some of your accrued annual leave, but only if that requirement is reasonable. What is reasonable depends on a range of factors, including how much annual leave you have accrued. It might be considered reasonable for an employer to ask you to take annual leave if the business is shut down by a fire or flood. The situation may be different if you are covered by an award or enterprise agreement that contains provisions about leave requirements.

Compassionate leave

For each occasion that a member of your immediate family or household dies or sustains an injury that poses a serious threat to their life, you may be entitled to two days of paid compassionate leave.

Compassionate leave is for more severe circumstances than carer's leave. Only full-time or part-time employees are entitled to take paid compassionate leave. Casual employees will receive unpaid compassionate leave.

You can take compassionate leave at any time while your immediate family member or member of your household has a life-threatening illness or injury. You do not need to take the leave as soon as your immediate family member becomes ill. You may take compassionate leave as a single continuous two-day period or two separate periods of one day each.

You must give your employer notice when taking compassionate leave and provide evidence of the reason for the leave if requested.

For more information about personal/carer's leave, compassionate leave and annual leave, you can contact the Fair Work Ombudsman on 13 13 94.

Long service leave

For most employees, long service leave entitlements are covered by the relevant state or territory long service leave legislation. Under these laws, most employees are entitled to long service leave after either seven or 10 years of continuous service with the same employer or related employers. If you are covered by an award or enterprise agreement, it may contain a specific provision about long service leave.

In Victoria, an employee can request to take long service leave at any time after seven years of continuous employment with the same employer or related employers. If you request to take long service leave, your employer must grant that leave as soon as practicable, unless the employer has reasonable business grounds for refusing that request. A request to take long service leave can be made for any period of more than one day.

Unpaid leave

The NES do not include an express entitlement to unpaid leave (other than in specific circumstances such as unpaid carer’s leave, unpaid parental leave and community service leave).

You may request a period of unpaid leave from your employer at any time. Your employer is not required to agree to this request and granting it is at their discretion.

During unpaid leave, your continuity of service (how long you have worked for the employer) is not broken. However, your entitlements under the NES (for example, personal/carer's leave and annual leave) will not accrue while you are on unpaid leave.

Community service leave

If you volunteer in emergency management (such as fighting fires), you may be entitled to community service leave.

Under the NES, all employees can take unpaid community service leave to perform a 'voluntary emergency management activity' that involves dealing with an emergency or disaster, such as a bushfire or flood. You are only permitted to take such leave if:

• you engage in the activity on a voluntary basis
• you are a member of a recognised emergency management body, such as the Country Fire Authority, State Emergency Service or the RSPCA (for animal rescue), and either:
  • that body asks you to participate in the activity
  • it would be reasonable to expect the request would have been made had the circumstances permitted (for example, to fight a rapidly spreading bushfire).

There is no set limit on the amount of community service leave you can take. You are entitled to be absent from your employment:

• for the time you are engaged in the eligible community service activity, including reasonable travelling time associated with the activity and reasonable rest time immediately following the activity
• if the absence is reasonable in the all the circumstances.

If you want to take community service leave you must give your employer notice of your absence and the expected duration as soon as practicable. Your employer may require you to provide evidence such as a copy of the request for you to participate in the activity.

Community service leave is unpaid, but does not break your continuity of service with your employer. If you take time off work to help with a natural disaster as part of community service leave, this will count as service with your employer. However, your entitlements under the NES (for example, personal/carer's leave and annual leave) will not continue to accrue while you are on unpaid leave.

It is unlawful under the Fair Work Act for an employer to dismiss you because you were temporarily absent from work to perform eligible community service activity where it was reasonable for you to be absent in the circumstances. Contact JobWatch or the Fair Work Ombudsman to confirm your eligibility for community service leave.

What happens if my employer has to temporarily close due to a disaster?

If your employer wishes to close its business or change your hours of work due to a bushfire or other disaster, they may be required to consult with you before doing so. This consultation will be required if you are covered by an award or enterprise agreement. The award or enterprise agreement will contain further information about the consultation process.

Can my employer ask me to take paid annual leave or long service leave?

If you are a full-time or part-time employee, your employer may need you to take paid annual leave if it is reasonable for them to do so. Whether or not a requirement for you to take annual leave is reasonable will depend on the circumstances. It may be reasonable if there is a disaster that forces the business to close. This situation may be different if you are covered by a modern award or enterprise agreement.

An employer can direct an employee who has accrued an entitlement to take long service leave to take some leave (at a specified time and for a specified period), but only by giving at least 12 weeks' written notice. In a disaster situation, an employer is unlikely to be able to comply with this requirement for notice. In these circumstances, the employer might ask an employee to take this leave, but the employee can refuse.

What happens if my employer stands me down?

Unless an enterprise agreement or contract of employment provides otherwise, your employer can stand you down (tell you not to come to work) for any period where you cannot be usefully employed, for any reason for which the employer is not reasonably responsible (for example, if your employer's business is forced to close due to a bushfire). An employer cannot stand down an employee just because of deteriorating business conditions, and the stand-down period should only be temporary.

You will not be entitled to pay for the period in which you were lawfully stood down, except for any public holidays that you would otherwise have worked during the stand-down period. You are not entitled to take paid personal/carer's or compassionate leave during a stand-down period.

You can make a request to your employer that you either:

• take paid annual or long service leave
• work at another location, such as from home, if you can reasonably complete work from home.

Your employer must reasonably consider any request that you make to take paid leave but is not obliged to agree to your request.

If you are improperly stood down (for example, work did not actually stop or did not have to stop), you will be entitled to recover any lost wages.

During the stand-down period, your continuity of service (how long you have worked for the company) is not broken. The stand-down period counts as service for all purposes. Other entitlements continue to accrue during the stand-down period, including annual leave, personal leave, and long service leave.

You can work for other employers during a stand-down only if your employer agrees.

The Fair Work Commission has power to deal with disputes about stand-downs. For more information about this dispute resolution process, you can contact the Fair Work Commission on 1300 799 675.

If you have been stood down without pay, you may also wish to contact Centrelink on 13 28 50 to discuss the options available to you based on your circumstances.

Redundancy and termination

Redundancy

If you are a full-time or part-time employee and your employer no longer requires the job you were doing to be done by anyone (for example, if the business will not be re-opened after the disaster), then your job has been made redundant. If your job has been made redundant, you may be entitled to redundancy pay (sometimes known as severance pay).

To be entitled to redundancy pay under the NES, you must have been employed by the business for at least 12 months and the business must have more than 15 employees. A 'small business employer' (a business that employs less than 15 people including casual staff working on a regular and systematic basis) is not required to pay redundancy pay.

If you are entitled to redundancy pay, your minimum entitlement will be in accordance with the NES.

You may be entitled to a more generous redundancy payment if an award, enterprise agreement or your employment contract provides you with an additional entitlement.

Termination

If you are a full-time or part-time employee and your employment is terminated, your employer must give you at least the minimum period of notice of termination you are entitled to under the NES. An exception is if you were dismissed for serious misconduct or your employment has ended at the conclusion of a specified (agreed) task or period of time. Your employer may choose to make a payment in lieu of notice to you instead of requiring you to work out the notice period.

NES minimum notice periods:

If you are over 45 and have completed more than two years of service with your employer, you are entitled to an additional week of notice. You may be entitled to a more generous notice period if an award, enterprise agreement, or employment contract provides you with an additional entitlement.

You may also be entitled to get other payments on termination, such as payment of any accrued but untaken annual or long service leave.

Unfair redundancy or termination

You can make a complaint to the Fair Work Ombudsman if you do not receive one of the following:

• notice of termination
• payment in lieu of notice
• redundancy pay (if your employment was terminated because of redundancy)
• any other payment due to you on termination (for example, accrued but untaken annual leave).

You should do this as soon as possible.

If the Fair Work Ombudsman cannot help you to recover your entitlements, or if you choose to take direct legal action against your former employer, any legal proceedings to recover your entitlements must be commenced within six years of the date that entitlement was due to be paid to you.

Unfair dismissal claim

If you think you were not genuinely made redundant (your employer still needs your job to be performed) or that the termination of your employment was otherwise harsh, unjust or unreasonable, you may be eligible to make an unfair dismissal claim to the Fair Work Commission. This claim must be made within 21 days of the date your dismissal took effect.

If you are an employee of a small business (meaning a business that employs less than 15 people including casual staff working on a regular and systematic basis), you can only make an unfair dismissal claim if you have been employed by the business for more than 12 months. If you have been employed by a business with more than 15 employees, you may make an unfair dismissal claim if you have been employed by the business for more than six months.

If you are not covered by an award or enterprise agreement, you must also earn less than the high-income threshold to be eligible to make an unfair dismissal claim. This threshold changes from year to year and is currently $167,500 per annum. This figure is adjusted upwards on 1 July each year.

If you were unfairly dismissed, the Fair Work Commission has power to order your reinstatement and/or payment of compensation (subject to a cap).

General protections and discrimination claims

You may be able to make a general protections claim under the Fair Work Act if you are dismissed or disadvantaged by your employer for:

• a discriminatory reason (for example, because of your family/carer responsibilities, race, religion, sex, sexual orientation, age or disability)
• making a complaint or inquiry about your workplace rights
• seeking to exercise your workplace rights (for example, your entitlement to take paid or unpaid leave in accordance with the NES).

Any general protections claim involving termination of your employment must be made within 21 days of the date that you are dismissed.

If you have suffered some other disadvantage (for example, lost shifts) for one of these reasons, you must make a general protections claim within six years of that disadvantage.

In these circumstances, you might also have a discrimination claim which can be taken to a state or federal anti-discrimination body or tribunal.

Where to get help

For legal information and referrals, call Disaster Legal Help Victoria on 1800 113 432 (Monday to Friday, 8 am to 6 pm). You can also contact your closest community legal centre to get advice from a local lawyer.

For more support options, see Other organisations that can help or find Other ways to contact us.

Fair Work Commission

The Fair Work Commission is Australia’s workplace tribunal hears disputes relating to unfair dismissal, bullying, redundancy, awards, industrial action, and more.

Call 1300 799 675, Monday to Friday, 9 am to 5 pm.

If you need to contact the Commission out-of-hours about an urgent industrial action application, call 0438 244 996.

Fair Work Ombudsman

The Fair Work Ombudsman conducts workplace investigations and will also provide information about workplace entitlements and your rights and responsibilities at work.

Call 13 13 94, Monday to Friday, 8 am to 5.30 pm (not open public holidays).

JobWatch

JobWatch is an independent, not-for-profit community legal centre that provides Victorian employees with information about their workplace rights.

Contact JobWatch Monday to Friday, 9 am to 5 pm (and Wednesday until 8.30 pm) on:

• 1800 331 617 – for regional queries
• (03) 9662 1933 – for metropolitan queries.

WorkSafe Victoria

WorkSafe Victoria is the state’s workplace health and safety regulator. They provide support to people injured in workplace accidents.

For general advice, call 1800 136 089, Monday to Friday, 7.30 am to 6.30 pm.

For emergency advice, call 13 23 60. Available 24 hours a day.

Victorian Government – Sick Pay Guarantee Program

For more information on eligibility for the program, see the Victorian Sick Pay Guarantee Program Guidelines.