LEGL3111.

2023 Topic Outlines and Learning Activities

Week 7 Topic: Leave

Leave
a. Right to Public Holidays
i. Federal System, National Employment Standard, s 114, s 115
What is the pay for public holidays? s 116
ii. State, Public Holidays Act 2010 (NSW)
b. annual leave
i. Federal System, s 86, National Employment Standard, s 87
Annual leave may be taken for a period agreed between an employee and his
or her employer. s 88
Can an employer require an employee to take annual leave? s 93(3)A,
Standard clause now appears in most modern awards allowing, s 89, s 90
Cashing Out, s 92, s 93
ii. State system, Annual Holidays Act 1944 (NSW)
c. personal leave
i. Federal System, s 106. S 107
A. Paid Personal/carer’s leave, s 93, s 97, s 99, s 100, s 101
B. Unpaid carer's leave, s 100, 103
C. Compassionate Leave, s 104, s 106
D. Paid family and domestic violence leave, ss 106A – 106E
ii. State, Ss 26 Industrial Relations Act 1996 (NSW)
d. parental leave
i. Federal system
A. Who is entitled to parental leave? s 67, 68
B. Entitlement, s 70, 73
- Situation, Leave for an employee not a member of an employee
couple; or where the employee is a member of an employee couple,
but the other member of the couple does not intend to take unpaid
parental leave, s 71
- Situation, Both parents are employees, s 72
- Situation Pregnant employee wants to work for as long as possible, s
73, 81
C. Entitlement, Extending period of unpaid parental leave for up to 12
months beyond available parental leave period, s 76
D. Situation, Reducing period of unpaid parental leave, s 77
E. Situation, Employee ceases to have responsibility for care of child,
s 78
F. Interaction with paid leave, S 79
G. Entitlement to unpaid special maternity leave, s 80
H. Consultation with employee on unpaid parental leave, s 83, 79A
I. On ending unpaid parental leave, s 84
J. Entitlement to unpaid pre-adoption leave, s 85
K. Paid Parental Leave, Paid Parental Leave Act 2010 (Cth)
ii. State System, s 55 Industrial Relations Act 1996 (NSW)
e. long service leave ,
i. Federal, s 113 of the Fair Work Act 2009 (Cth)
ii. State, Long Service Leave Act 1955 (NSW)- 2 months after 10 years
f. community service leave, s 108, s 109, s 110, s 111
g. Other Leave

Reading:
A Stewart, A Stewart, Stewart’s Guide to Employment Law, Sydney: The Federation
Press, 2021, Ch pp 269 to 291.

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LEGL3111.2023 Topic Outlines and Learning Activities

Learning Activities

1. Write down any questions that you have from working through the materials for
this week’s topic, namely ‘Leave’. Please raise these questions in class. Your
discussion can include anything you are interested in or anything that you found
difficult to understand.

2. How much leave is an employee entitled to in relation to:

A. Public Holiday leave in NSW
B. Annual leave
C. Personal leave
D. Family and domestic violence leave
E. Parental leave
F. Long Service leave
G. Community service leave.

3. How much pay will an employee be entitled to in relation to:

A. Public Holiday leave
B. Annual leave
C. Personal leave
D. Family and domestic violence leave
E. Parental leave
F. Long Service leave
G. Community service leave.

4. What conditions must you satisfy as an employee to be entitled to:

A. Public Holiday leave
B. Annual leave
C. Personal leave
D. Family and domestic violence leave
E. Parental leave
F. Long Service leave
G. Community service leave

5. Is a casual entitled to:

A. Public Holiday leave
B. Annual leave
C. Personal leave
D. Family and domestic violence leave
E. Parental leave
F. Long Service leave
G. Community service leave.

6. Anne’s daughter, Judy, has just obtained a place at a Sydney university to

undertake an archaeology degree. The transition from living in the country to living in
the city has not been an easy one for Judy, nor for Anne for that matter. Getting her
daughter set up in Sydney has involved a number of trips to Sydney to arrange
accommodation, transport, food and orientation and a settling in period. Just before
first semester started Judy fell ill which meant that it was not possible for Judy to go
to university at the arranged time. Anne arranged to take Judy to Sydney during the
middle of the week.

Figjam Pty Ltd an importer of jam preservatives employed Anne. Anne asked her
supervisor Kathy for a day off on carer’s leave so that she could take Judy to Sydney
to start university. Kathy refused and said that Anne needed to take an annual leave

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LEGL3111.2023 Topic Outlines and Learning Activities

day to do so. Anne pointed out that Kathy had just taken a day off on carers’ leave to
assist her father in registering his car. Kathy said that was different.

Anne was also upset that one of her colleagues, Maria, had been asked to return
from maternity leave four weeks after the birth of her child. Maria refused. When she
did come back from maternity leave she found that the job she used to perform had
been given to somebody else. When Maria inquired as to why that was so, Maria
was told that now that she had had a baby the job that she used to do, that is,
packing boxes of jam would be too strenuous for her. Maria does not like her new
work and wants to return to her old position.

Discuss the legal rights of Anne, Kathy and Maria.