Entitlement to leave without pay

While there is no general entitlement to unpaid leave under the Fair Work Act 2009, there are some provisions that deal with the question of when unpaid leave can be taken. In other cases it is a matter for agreement between the employer and employee.

Unpaid Leave under the Fair Work Act 2009

  • Employees with at least 12 months’ continuous service are entitled to 52 weeks of unpaid parental leave (which can be extended for a further 52 weeks). Note there is also provision for unpaid special maternity leave and unpaid pre-adoption leave.
  • Employees can take unpaid carer’s/compassionate leave as follows:

–      Up to 2 days unpaid carer’s leave in relation to a member of the employee’s immediate family or household

–      Up to 2 days compassionate leave for casual employees (for permanent employees compassionate leave is paid leave)

 Other Unpaid Leave

Leave without pay can be taken at other times by agreement between the employee and employer.

Impact of taking Leave Without Pay

Public Holidays

An employee is not entitled to be paid for public holidays that fall during a period of leave without pay.

Annual Leave

An employee absent on leave without pay does not accrue annual leave during that period of absence.

Sick Leave

As with annual leave, sick leave does not continue to accrue while an employee is on unpaid leave.

Parental Leave

Leave without pay does not break the continuity of service provisions. This means that if an employee wishes to take unpaid parental leave, and the 12 month period of continuous service with the employer includes a period of unpaid leave, then the employee is still entitled to the unpaid parental leave.

Long Service Leave

Long service leave will continue to accrue while an employee is on leave without pay, as the employee’s continuity of service includes periods of unpaid leave.

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