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Patrick H.
Patrick H., Lawyer
Category: Australia Law
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Experience:  Dip Law LPAB - Sydney based lawyer
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I have a dispute with my employer about the personal leave

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I have a dispute with my employer about the personal leave calculations. Calculations on the government ombudsman web for personal leave are based on 10 days p/a. My employer told me that they work to commercial sales award and apparently clause 29.2.1 is saying that my entitlement for the first year of employment is one week only i.e. 5 work days. This award was never mentioned to me, even our quality manual is referring to 10 days of personal leave p/a. Who is correct?
Regards Karl
You should get a copy of the award from your employer, but presumably he means:

http://www.fwc.gov.au/documents/modern_awards/award/ma000083/default.htm

Though I note that there is no clause 29.2.1 in this award.

In relation to personal leave it simply refers to the NES (the National Employment standards which sets out minimum general standards.

https://www.fairwork.gov.au/Documents/The-National-Employment-Standards-Part2-2-Fair-Work-Act-2009.pdf

Clause 96 of the NES simply entitles workers to 10 days of personal leave.

The Fair Work Act generally prohibits exclusion or a reduction in the entitlements set out in the NES so it is hard to conceive of a reason why your employer is claiming you are not entitled, and it is doubly suspicous that your employer appears to be referring to a provision of the award which does not exist.

http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s55.html

I suggest you raise the above issues with your employer and unless they agree to correct your entitlements or offer a convincing explanation you should make a complaint to the Fair Work Ombudsman and you may even contemplate bringing a general protection claim against them, particularly if they have denied you personal leave which you should have been entitled to.

http://www.fairwork.gov.au/Pages/default.aspx

Finally, make sure you put your requests in writing and if only offered a verbal explanation, confirm what your boss said in writing (i.e. send him an email saying something like:

"Just to be clear, in our meeting of x date, and in response to my original query regarding my personal leave entitlements, you say I am not entitled to 10 days leave because... "

That way, unless he immediately responds denying or correcting your assertions, you will be able to rely on those emails as evidence of what he said in his reply (should it become relevant to some future legal action). He might try to deny it later, but a court is likely to see his failure to address the email as indicating that he did not disagree with it at the time, and that any later denial is merely a convenient attempt to discredit evidence against him.

I trust the above assists and good luck.

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Thank you and good luck.

Patrick
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Customer: replied 3 years ago.


I forgot to tell you that I'm based in QLD/Brisbane, but our company HO is based in Melbourne VIC. Does it make any difference?

Customer: replied 3 years ago.


I have found the clause on the web. Here is the link:


http://www.fwc.gov.au/consolidated_awards/ap/ap772623/asframe.html


But not sure if still valid.

The Victorian award, like almost all state awards across the country has been displaced by the federal award which applies nation wide.

It appears your employer is referring to the old award.

You should bring this too his attention. As the link correctly states this award is no longer valid.

I trust the above assists and good luck.

Please rate my answer so I can be paid by the website operator.

Please note I am only paid if you rate me with three or more stars/smileys.

Thank you and good luck.

Patrick

Patrick H. and other Australia Law Specialists are ready to help you