January 23, 2025

annual leave

Ask Shaye – Annual leave paid on termination of employment

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I’m currently working in a public hospital in NSW, and I have 10 weeks of annual leave accrued including 2 weeks pro- rata. I want to resign and go to work in the private sector, and want to know if I will be paid annual leave loading on my 10 weeks of annual leave when I receive it as a lump-sum payout on termination?

Payments for pro-rata annual leave and lump-sum payouts on termination do not attract a payment for annual leave loading, however you can claim the loading on a lump-sum payment if you are retiring. Please refer to Clause 2.11.1 (6) (7) and (8) of the Leave Matters for the NSW Health Service

As an alternative approach 15.1 of the policy directive allows you to elect to take your annual leave as service on resignation. This means instead of receiving a lump-sum payment on resignation, you can elect to proceed onto the remaining balance of your untaken accrued annual leave. This would mean that you are paid annual leave loading on the leave when taken as service, however you are still unable to be paid loading on pro- rata leave or public holiday leave.

Ask Shaye – Taking annual leave and workers comp together

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Is it possible to take annual leave and workers compensation weekly payments at the same time in the private sector?

This is a complex issue that will depend on your specific individual circumstances. In New South Wales, Section 49 of the Workers Compensation Act 1987 does broadly allow both annual leave and workers’ compensation to be taken at the same time.

However, we are aware there have been instances where some private hospitals are self-insured under the Safety, Rehabilitation and Compensation Act 1988 and sometimes they have declined requests for injured workers to receive both workers compensation payments and annual leave at the same time due to the nature of those provisions.

It is also important to take into consideration the implications of cashing out of any leave balances while on workers compensation generally as the insurer may consider leave payments/payouts as earnings and ‘top up’ payments may be affected (or reduced) for the duration of any paid leave.

Cashing out or accessing both leave and workers compensation payments may have effects on salary sacrificing and taxation. We would suggest seeking financial advice and discussing with your insurer your individual circumstances prior to doing this.

Annual leave used to maintain contracted hours

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I work in a public hospital and wasn’t rostered my usual hours. One shift was then paid as annual leave, to maintain my contracted hours without my knowledge. Can they do that?

In short, no. You should be rostered your contracted hours, and any shortfall cannot be arbitrarily made up by using your annual leave. Furthermore, Clause 30(vi) of the Public Health System Nurses’ and Midwives’ (State) Award, makes clear that the use of single annual leave days can only occur if “convenient to both the employer and the employee”, i.e., by mutual agreement.

YOUR RIGHTS – ASK SHAYE

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When it comes to your rights and entitlements
at work, NSWNMA General Secretary 
Shaye Candish has the answers.

Annual leave in a medical centre

I’ve just started a job at a local medical centre, how many weeks of annual leave should I get?

When working for a smaller private employer you’ll generally be covered by the Nurses Award 2020. The Award provides for 5 weeks of annual leave as a standard. However your employer can pay you a higher rate of pay and then provide four weeks of annual leave instead. The first step is for you to look at your contract or letter of offer and see if there’s any mention of annual leave. If annual leave is not mentioned or you’re still unsure, this is a great question to take to bring to us and we can give you specific advice.

In-charge allowance

In my unit, we have a team leader for all three shifts but only the morning and evening shift receive the in-charge allowance? Is this right?

The allowance is paid when the NUM of a ward is away, so it’s often paid for afternoon and night shift if the NUM is not at work. However a Team Leader may also be paid the allowance where the NUM is at work and the nurse in-charge is delegated and performs the ‘day-to-day’ clinical management of the unit. Practically, if a team leader is allocating patients, handling escalations and questions from staff and generally running
 the clinical work of the unit, then they should receive an in-charge allowance.

If you believe that you may qualify for this allowance and aren’t being paid it, you should contact the Association for a further discussion.

Employer requests for medical info

I’ve had knee surgery in the past and have some difficulty bending over or kneeling. I work in the public system and have been asked to get a medical certificate to show I can keep working. Is that allowed?  

Employers have a right to request medical evidence from you if they have reasonable questions about your ability to perform the requirements of your job or if there are safety concerns because of your health. However, a request by an employer for medical information should be specific and confined to the concerns they’ve raised. In this example, it’s probably reasonable for the employer to ask you for medical information or doctor certificates about your knees and how your injury affects movement and mobility. It would likely not be reasonable, though, to ask you for information about psychologist appointments or blood 
pressure medication.

If you have been asked for medical information from your employer and are concerned that the request is not reasonable you should contact the Association for assistance.

Classification following parental leave

If I take parental leave for a year, will I have to take a lower classification job when I return?

No, if you return from parental leave after having a child you are entitled to return to the position which you left when you commenced parental leave. If the job no longer exists, you should be employed in the same or a similar position to the one you left before taking parental leave. This right is set out in s 66 of the Industrial Relations Act 1996 for public sector workers and in s 84 of the Fair Work Act 2009 for private sector workers.

Personal leave at Ramsay

I work for Ramsay and have to take my elderly grandfather to hospital unexpectedly. What sort of leave 
should I take?

Leave entitlements can be different from employer to employer so it’s good to check your own enterprise agreement or Award. Taking care of a family member is a valid reason to take paid personal leave (often known as sick leave). In the Ramsay Agreement, a grandparent qualifies as a family member and so you are absolutely entitled to take a day of paid personal leave to help him attend an unexpected hospital visit.

Cashing out annual leave

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I am a registered nurse working in a public hospital. If I need to, can I get some annual leave paid out?
Clause 30(xi)(b) of the Public Health System Nurses’ and Midwives’ (State) Award sets out the criteria for cashing out annual leave. In short, any annual leave accrued under the Award over and above four weeks per year can be paid out in lieu of taking the leave. This is solely at the employee’s election and can be done at any time.

Payout of additional annual leave

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I am a registered nurse working in a public hospital. One of my colleagues said I might be able to cash out some of my annual leave. Is that correct?

Under Clause 30(xi)(b) (Annual Leave) of the Public Health System Nurses’ and Midwives’ (State) Award 2017 an employee can elect at any time to be paid out their “additional annual leave”, with the payment calculated as if it was actually taken. Additional annual leave is that leave accrued over and above the statutory minimum of four weeks each year, i.e., the additional leave provided for shift workers or the additional leave accrued for working Sundays and/or public holidays. 

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