Home : About Us :commun-iT blog  

commun-iT blog

Payment of leave loading upon termination questioned

Friday, May 18, 2012
Commissioner Peter Hampton of Fair Work Australia (‘FWA’) has approved an enterprise agreement that does not provide for the payment of leave loading upon termination. This decision is noteworthy as the Fair Work Ombudsman has previously specified that annual leave loading is payable in these circumstances.

The issue before FWA concerned whether the exclusion of annual leave loading in termination payments were a contravention of s 55 of the Fair Work Act 2009 (Cth) (‘the Act’).

s 55 stipulates that no award or enterprise agreement can exclude the National Employment Standards (‘NES’). The NES constitute ten minimum criteria, such as maximum weekly hours and parental leave, which must be provided to every employee.

Commissioner Hampton analysed the NES alongside s 90(2) of the Act, which states that a terminated employee with a remaining period of untaken annual leave must be paid the same as they would have been entitled to had they taken that leave during employment. Commissioner Hampton approved the agreement, finding that the NES did not contain an express provision requiring the payment of annual leave loading upon termination. However, as Commissioner Hampton felt that he had not “decisively” settled the matter, the issue was not “comprehensively resolved”. In his judgment, Commissioner Hampton noted that the decision to approve the agreement was complicated by the failure of the relevant unions to provide submissions on the leave issue.

For advice or assistance with drafting enterprise agreements contact Nick Stevens or Liza Isho

Author: Nick Stevens, Principal, Stevens & Associates Lawyers, an AIIA.biz expert and one of the Panel of Expert Bloggers.

This article provides general information only. It is not legal advice, and is not a substitute for legal advice. Specific advice should be sought to take into account your particular circumstances. Stevens & Associates Lawyers is a boutique industrial relations and employment law firm. It has liability limited by a scheme approved under Professional Standards Legislation.

Trackback Link
Post has no trackbacks.

Subscribe to the commun-iT blog RSS

 Recent Posts


Financial Planning Regulation 90 Databases Division 7A Payment Summaries Travel IT Professionals unpaid work director duties IT Lawyer Fair Work Ombudsman adverse action Fair Work Act Treadstone Tax R&D tax Credit warranty against defects PAAS superannuation Tax rates Peta Maloney GST IT capability directory enterprise agreement Insurance Advisernet Discounted Deals fraudulent refunds flood insurance Hotel tax law Fair Work Commission 12 percent Greg Pearce SAAS Tours Australian Workplace Agreements loans Research and Development Tax Credit personal income tax managed services award Government Grants sick leave Federal Court of Australia Capability Study 2011 Panel of Expert Bloggers employment contract Stevens and Associates term deposit David Scott Gold Coast ICT Forum restraint of trade clause Insurance Supply Management Fee moral right National Employment Standards Matthew Karpanen Research and Development Tax IP Consumer Law broker dividends IT Law AIIA SME Advanced Findings Queensland State Government IT Forum Gold Coast open source discounted travel selling your business Software Research and Development Tax, Balance Professional Services Compliance Program Survey data breach of implied terms Centennial Financial Services Contractor small business 2020 Living Away from Home Allowance Confidential information unfair dismissal underpayment Superannuation Guarantee www.aiia.biz Guide compliance Compulsory Employer Superannuation contractual obligations AUSkey termination Free Basic Listing restraint withholding rates PAYG leave loading employers Software R&D Tax Pym's Technology Lawyers government procurement Fair Work Australia Nick Stevens Australian Information Industry Assocation indemnity Independent AIIA.biz Peter Nolle natural disaster Employment Fair Work Regulations warranties Contracting Michael Blumenstein employee Sham confidentiality clause Maat Solutions Clerical and Administrative Employees (State) Award reseller Mike Pym ABN individuals Australian Business Register Innovation Australia: AusIndustry Agreements eServices Corporate and Commercial Law fuel tax credits Board of Taxation Falsify Win an iPad 2 company tax ATO ASIC Alex Bodnar Benefits IT Contracts Law IAAS ITFGC employment law Greg Tomkins patent small business owners NES Information gathering benchmarking distribution agreement Fringe Benefit Professional Idemnity personal services income industrial action Procure IT breach of employment contract ICT capability study Civil Aviation Regulations employment agreements fines copyright


    Our Expert Bloggers

    Mike Pym

    Mike is an entrepreneur and lawyer who leads two SMEs, one in the IT software industry, and a firm of lawyers specialising in IT law.

    Peta Maloney

    Company and commercial law, shareholder agreements, constitutions, directors’ duties, setting up companies, IT contracts, outsourcing, government procurement and privacy.

    Peter Nolle

    Government Grants from start up to export ready

    Alex Bodnar

    General insurance advisory for commercial & industrial risks, 
    Information Technology & Telecommunication exposures. 

    David Scott

    Investments, Superannuation,
    Life Insurance, Income Protection Insurance, Key Person Insurance, Debt Management, Gearing,
    Retirement Planning

    Mike Pym

    IT contracts, government procurement of IT, distribution agreements, outsourcing, contract management & dispute resolution.

    Nick Stevens

    Enterprise Agreements,
    Employment Contracts,
    Unfair Dismissal, EEO, 
    Workplace Surveillance & Privacy, OH&S

    Industry Associations



    Maat Solutions Pty Ltd
    Level 6, 60 Pitt Street
    Sydney NSW Australia

    T: +61 (02) 9247 9459
    F: +61 (02) 9247 9550

    Captcha Image