By Charles Power
When it comes to employee leave, there are many different types that can apply and often, it can be difficult to know which one to use.
Aside from annual leave, personal/carer’s leave, paid and unpaid parental leave and long service leave, there is also community services leave, adoption-related leave, study leave and many other types to consider.
Defence services leave refers to leave sought by employees who are members of the Defence Reserve to attend military training. It also refers to leave for employees and other members of the public if called upon to undertake Defence Reserve duties in “times of exceptional need”.
Defence Services leave is covered by the federal Defence Act 1903 and the Defence Reserve Service (Protection) Act 2001 (the Act).
The Act states that an employer must not hinder a person from volunteering for service in the Emergency Forces or the Reserve Forces, or penalise a person on account of their service in these forces. This means that employers are required by law to release an employee to undertake all types of defence service (including training), and to continue to employ them on their return.
The Act does not specify any fixed period of leave, however requests for this type of leave are generally for a period of 2 weeks (10 working days) on one occasion per year (usually to undertake training). Employees should always try to give their employer as much notice as possible of the dates they will be absent from work on defence service.
Employers are not obliged to pay employees for any absence on military service. Generally, employees receive a tax-free payment from the government for such leave. However, employers may choose to “make up” the difference between this amount and the employee’s usual pay.
The employee’s contract of service will continue uninterrupted during this type of leave. Entitlements to other forms of leave (annual leave, sick leave, long service leave) will also continue to accrue as if the employee was at work. Employees cannot be required to take their annual leave or long service leave for absences on defence service, but may voluntarily elect to do so by mutual agreement with their employer.
Finally, employees are also entitled to various protections for undertaking Defence Service leave.
The Act makes it unlawful for an employer to discriminate against a person because the person has volunteered for defence service by changing the terms and conditions of their employment to their detriment, or discriminating against them in their terms and conditions of employment or dismissing them.
Also, an employer cannot refuse to give work to a person on the grounds that the person is, has, or might in the future serve in the Defence Reserve/Defence Force.