Entitlements?

Can my employer force me to take annual leave over the Christmas holidays?

With over a quarter of Australian workers forced to take annual leave over the Christmas holidays when business is slow or shut down, it is critical that employees understand their rights in relation to mandated leave.

The general rule is that employers are entitled to direct employees to take annual leave where the request is reasonable. This includes situations where:

• the employee has accrued excessive annual leave; or
• the employer’s operations are temporarily shut down.

Am I entitled to be paid out my owed time in lieu upon being made redundant?

Being made redundant can be an incredibly stressful time for any employee.  With all the upheaval, it can be unclear what rights you have available to you as an employee. While the process of seeing through a redundancy can be quite complex, it is important to understand what you are entitled to in order to ensure you receive what you are duly owed.

Am I entitled to an Annual Pay Rise?

In Australia, it is most common that an employer will have absolute discretion to decide whether an employee is entitled to receive a bonus or pay rise.

Is sick leave paid out on termination?

Generally speaking, under s 101 of the Fair Work Act 2009 (Cth) employees are not allowed cash out sick leave unless their modern award or enterprise bargaining agreement (EBA) contain specific terms which allows for sick leave to be paid out on termination of employment.

If I am a high income earner with outstanding bonuses and commissions from my previous employment, what can I do?

Generally bonuses and commission payments arise from a contract of employment. Accordingly, if bonuses or commissions remain due an employee has a right under their contract to recover these amounts.

Further, section 323 of the Fair Work Act 2009 (Cth) applies to ‘incentive-based payments and bonuses’ meaning there may also be a breach of the Fair Work Act 2009.

I have fallen pregnant again while on maternity leave, am I able to take a further period of leave?

It is commonplace for an employee to fall pregnant again while on maternity leave for their first pregnancy. In this case, an employee may request an extension of their maternity leave, depending on how long the original period granted to them was for.

I have shares in my company but want to resign. What will happen to my shares?

It is not uncommon for employees to own shares in their employer.  This can take various forms, for example as part of a share scheme or following a purchase of shares, and your legal position in relation to your shares upon resignation will largely depend on the terms of the shareholder agreement.  Your legal position will also depend on whether you own the shares, or if your ownership is contingent on a future event.

Which States’ Workers’ Compensation Scheme applies if I am injured outside of my home State?

It is commonplace for employees to be required to travel interstate as part of their work.  As a result, you may have been injured in the course of your employment whilst outside of your home State. Such injury typically gives rise to Workers’ Compensation entitlements, however, the identification of the relevant State law can be problematic in such circumstances.

Can I have concurrent leave entitlements?

It is common that couples, either one or both of them, will take unpaid parental leave when expecting a new addition to their family. In order to take unpaid parental leave, you, as the employee, need to give sufficient notice to your employer.

I have signed a DOR with my ex-employer, but they are making disparaging comments to my prospective employers, what can I do?

Deed of Release (DOR) is a written statement that once signed becomes a legally binding document. By signing a deed of release, an employee agrees to ‘release’ their employer from current or future legal claims and an employer agrees to perform a certain act or pay certain entitlements that will benefit the employee.

Can I send or take work related information home?

With increasing workloads and the adoption of flexible working arrangements, more and more of us are conducting work from our own homes. Commonly, we think very little of taking work-related material out of the office, often emailing ourselves the relevant information.

How do I know whether my employer’s decision to make my position redundant is lawful or genuine redundancy?

Redundancy is a far more complex concept than most people know. Even judges get it wrong. There is no substitute for sound legal advice but here is a start.