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Frequently Asked Questions 

More information for Indigenous people

 

1. How much notice do I get if I am on a probation period? 

Being on a probation period will not change the amount of notice that an employee would receive on termination. The notice period is found under the National Employment Standards. The amount of notice is based on the employee’s years of service with an employer. The amount of notice is capped at five weeks.

 

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2. What happens if I get sick during my notice period? 

You can use your personal/carer’s leave during your notice period. The same rules will apply as if you were not working out a notice period – you would need to give your employer as much notice as possible that you are unable to work. Your employer may also ask for evidence about why you were unable to work.

 

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3. Can I take annual leave during my notice period? 

Yes. If you wish to take annual leave during your notice period, you can request a period of annual leave form your employer. As with all types of leave requests, a request for annual leave should be done as soon as possible. Your employer would need to agree to the request. An employer cannot unreasonably refuse your request to take annual leave.

 

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4. Can my employer make me take annual leave instead of working out my notice? 

No, your employer can either:

  • ask you to work out your notice period, or
  • pay you instead of  giving you the required notice as per the National Employment Standards.

An employer would need to pay you at least the amount that you would get if you worked during the notice period. As an example, if you were entitled to 1 weeks’ notice, you would receive 1 weeks’ pay instead.

 

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5. What would be serious misconduct? 

Examples of serious misconduct are:

  • theft
  • fraud
  • assault
  • being drunk at work
  • refusing to do something that is lawful and reasonable that is a part of your job
  • seriously risking someone else’s health or your employer’s business

 

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6. What are general protections? 

The Fair Work Act 2009 prohibits employers from firing employee’s  for certain reasons.

For an example, you cannot be fired because of:

  • your age, race or sex
  • being away from work because you are sick or injured
  • making a complaint against your employer

 

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7. Does an employer have to give three warnings before sacking an employee? 

No, an employer does not have to give three warnings to an employee before a termination – however, it is advisable to give an employee at least one warning. An employer should always follow their termination policy regarding how many warnings are to be given. If an employee is dismissed and that employee was to claim an unfair dismissal claim against an employer – the Fair Work Commission may look at the process that has been taken to dismiss the employee – was the employee told that there was an issue regarding their performance or conduct and that a termination may occur if their performance or behaviour of the employee does not improve.

 

 

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8. I worked over the weekend/ a public holiday – should I get paid more? 

This will depend on the type of work that you do and whether or not you are covered by a modern award.  If you are covered by a modern award or an enterprise agreement, check what the award or agreement states regarding working on the weekend or on a public holiday.

 

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9. Can new employees be paid as a trainee whilst they are on a probation period? 

An employee can oly be paid as a trainee if the employee is doing a registered traineeship that is recognised in NSW. An employee cannot be paid on a trainee wage if they are new to the organisation or on a probation period.

 

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10. Can my employer send me home without pay if it is quiet? 

If you are a full-time or a part-time employee your employer cannot send you home without pay because it’s quiet. If you are a  casual employee, your employer can send you home as long as you have completed the minimum number of hours as defined under your award or agreement (as an example your award may state that you need to work for a minimum of three hours per engagement).

 

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11. How does annual leave accrue? 

From the 1 January 2010, annual leave entitlements forms a part of the National Employment Standard and whilst the National Employment Standard do not contain an actual calculation for the purposes of calculating annual leave, the National Employment Standard does state that Annual Leave accrues progressively for a worker throughout the year.

On the Fair Work website, there is a calculator that can be used to work out annual leave accruals.

It is important to note that using either one of the above calculations will ensure that a worker is provided with the minimum entitlement. However, using them may mean that a small additional amount each year. This is because the formula assumes that there are exactly 52 weeks in a year.

 

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12. How does personal/carers leave accrue? 

From the 1 January 2010, personal/carers leave entitlements form a part of the National Employment Standards and whilst the National Employment Standard does not contain an actual calculation for the purposes of personal/carers leave under the National Employment Standards Personal/carers leave accrues progressively for a worker throughout the year.

leave calculator is now available on the Fair Work Website.

It is important to note that using either one of the above calculations will ensure that a worker is provided with the minimum entitlement. However, using them may mean that a small additional amount each year. This is because the formula assumes that there are exactly 52 weeks in a year.

 

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13. What are the National Employment Standards and why are they important? 

From 1 January 2010, the National Employment Standards apply to all employer and workers in the national workplace relations system.

Under the 10 minimum workplace entitlements that make up the National Employment Standards, workers are protected by a safety net of fair, relevant and enforceable minimum employment terms and conditions.

Most workers covered by the national workplace relations system are entitled to receive each of these 10 entitlements. Some of these entitlements also apply to casual workers.

 

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14. As an employer, can I pay my workers above the modern award wage? 

Yes, a modern award provides the minimum wage that a worker can be paid either on a full-time, part-time or a casual basis. As an employer, the wage that is paid to a worker can be no lower than the appropriate modern award. However, an employer can certainly choose to pay above the award wage. Employers must be aware that the modern award entitlements may still apply.

 

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15. How much notice do I need to give my employer to leave and what happens if I leave early? 

Notice periods, whether being given by the employer or a worker, now form a part of the National Employment Standards. The amount of notice is based on a sliding scale based on the worker’s years of service.

The sliding scale is shown here and is for termination by the employer:

Worker‘s period of continuous service 

Period of Notice

Not more than I year of service

1 weeks notice

More than 1 year but less than 3 years

2 weeks notice

More than 3 years but less than 5 years

3 weeks notice

More than 5 years

4 weeks notice

 

Increase this period of notice by 1 week if the worker is over 45 years of age and has completed at least 2 years of continuous service.

If the worker is resigning, it is an idea to check the termination clause under their modern award. Usually, the award will say to use the above scale for the purposes of notice; however there is no extra week given based on age or years of service.

 

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16. How much will I get paid if I leave the organisation? 

Final pay is what the employer owes and must pay a worker. The actual amount may vary depending on a worker’s years of service, reason for the termination and whether the worker has decided to leave or this was the employer’s decision.

As an example- a final pay may consist of –

  • Outstanding wages – including overtime and penalty rates
  • Accrued annual leave and leave loading entitlements
  • Accrued long service leave entitlements (depending on years of service and the reasons for the termination)
  • Redundancy pay entitlements (if applicable)

 

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17. Am I still entitled to annual leave loading? 

Generally speaking yes, most modern awards do contain provisions for annual leave loading.  Please note that annual leave forms a part of the National Employment Standards and annual leave loading is an award condition of employment. When looking at annual leave loading, always refer to the relevant modern award for clarification.

 

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18. My new boss asked me to work for two days and then I was told that I would not be paid because I was on trial – is this right, should I be paid? 

An employer can ask a potential new worker to come to the workplace to look around, meet the other staff, to observe work and to demonstrate basic skills. This does not amount to a trial period and therefore the worker would not be paid for this.

However, if someone is required to perform productive work, or to work an entire shift, they are entitled to be receive the minimum wages and conditions provided in the National Employment Standards and any applicable  modern award or enterprise agreement.

 

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19. I work in a hairdressing salon and the cash register was short so my employer deducted the difference from my pay. Can the employer do this? 

There are some instances where an employer can legally deduct money from a worker’s pay. This would be done if the worker has agreed in writing to the deduction, the deduction is for the benefit of the worker, or if the deduction is authorised by a modern award or an enterprise agreement. Even if the deduction is authorised, the deduction still must be for the benefit of the worker.

If a deduction is made from a worker’s pay based on a shortfall in the cash register, this would be deemed as an illegal deduction and the employer would not be able to make such a deduction.

 

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