Reading time: 5 minutes

A contract of employment may end for different reasons. For instance, you might lawfully terminate an employee, or your employee might voluntarily resign. Generally, you must pay out your employee’s accrued entitlements upon termination. Sometimes, these payments can include leave loading. This article will understand the rules regarding final pay and will outline:

  • leave loading;
  • your employee’s entitlements upon termination; and
  • other relevant factors when terminating employment, including notice periods.

If you are unsure about paying out your employee upon termination, it would be wise to seek legal advice.

Employment Essentials Factsheet

As an employer, understand your essential employment obligations with this free LegalVision factsheet.

Download Now

What Is Leave Loading?

In short, leave loading is a payment your employee may be able to claim in addition to their annual leave entitlements. For example, under the National Employment Standards, all employees (excluding casuals) may have an entitlement to four weeks of paid annual leave for each year they work for you. Furthermore, a modern award, enterprise agreement or employment contract may provide your employee with an entitlement to leave loading.

Ultimately, the rate of leave loading will depend on what the relevant award, enterprise agreement or employment contract prescribes.

Typically, employers will calculate the loading at 17.5% of your employee’s usual wages.

In other words:

Leave loading = 17.5% x Normal Weekly Pay x Number of Weeks of Leave.

Paying Leave Loading Upon Termination

Under the Fair Work Act, you must pay out all entitlements your employee accumulates before their termination. For example, if you terminate your employee, but they still have unused annual leave and leave loading entitlements, you must transfer these entitlements in their final pay.

If you terminate your employee, you must pay out their leave loading at the rate you would have done so had your employee taken that period of annual leave. For example, say your employee is entitled to 17.5% leave loading under a modern award. If your employee has accumulated 40 hours of leave loading, but you terminate their employment, you must pay out for their 40 hours of leave loading at 17.5%.

However, there may be instances where you do not have to pay out leave loading separately upon termination. This is because your employee might earn an annual salary that includes loading. It would be wise to clarify your final pay obligations by checking your employee’s employment contract or seeking advice from a lawyer.

Generally, if you pay your employees leave loading during their employment, you will also be required to pay this upon termination.

Final Pay Entitlements

Final pay refers to any outstanding entitlements you must pay your employees upon termination. Depending on the relevant award, enterprise agreement or employment contract, final pay includes:

  • any outstanding wages;
  • accumulated annual leave and leave loading;
  • payment in lieu of notice (if they are not working out their notice period);
  • long service leave (if applicable); and
  • redundancy pay (if applicable).

However, you should note that your employee’s accumulated personal leave is not payable upon termination. 

Most awards require you to pay your outgoing employee their final pay within seven days of their employment ending. However, this timeframe is subject to change depending on the award or enterprise agreement covering your employees.

Notice of Termination

You must provide your employees with notice before you terminate their employment. Similarly, in the instance where your employee resigns, they must provide you with notice.

A notice period is the length of time that you or your employee must provide the other party to end employment.

The relevant award, enterprise agreement or employment contract will typically outline the requirements for notice periods. However, the National Employment Standards provide the minimum notice periods when terminating an employee. These periods are listed below.

Your Employee’s Period of Continuous ServiceMinimum Notice Period
One year or lessOne week
More than one year but less than three yearsTwo weeks
More than three years but less than five yearsThree weeks
More than five years Four weeks

You should note that in addition to the notice periods above, you must give an extra week of notice if your:

  • employee is aged 45 years or older; and
  • has worked for you for at least two years.

Deductions to Final Pay

If your employee is resigning and fails to provide you with proper notice, you may receive an entitlement to deduct a particular amount from their final pay. This can deter outgoing employees from giving you little to no notice. However, you can only deduct pay if an employee’s award or agreement allows you to do so. 

In any event, you should seek legal advice before you make any deductions to your employee’s final pay.

Key Takeaways

Leave loading is an additional payment that your employee may be able to receive in addition to their annual leave entitlements. You must pay out any accumulated leave loading in your employee’s final pay. Additionally, you should pay any:

  • outstanding wages; 
  • annual leave; and
  • if applicable, long service leave, redundancy pay and payment in lieu of notice. 

If you have questions regarding final payments, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.

Frequently Asked Questions

Are all employees entitled to leave loading?

Unlike annual leave, which all employees, excluding casuals, are entitled to under the National Employment Standards, not all employees are entitled to leave loading. Therefore, your employees’ leave loading entitlements will only exist if the relevant award, enterprise agreement or employment contract prescribes it.

What is payment in lieu of notice?

Once you give your employee notice of termination or they provide you with notice of their resignation, they can either work until the end of the notice period; or you can pay them in lieu of them working out their notice period. 
This is called ‘payment in lieu of notice.’ It is an amount you would have been liable to pay your employee had they continued to work for you until the end of the notice period.

Webinars

New Kid on the Blockchain: Understanding the Proposed Laws for Crypto, NFT and Blockchain Projects

Wednesday 25 May | 10:00 - 10:45am

Online
If you operate in the crypto space, ensure you understand the Federal Government’s proposed licensing and regulation changes. Register today for our free webinar.
Register Now

How to Expand Your Business Into a Franchise

Thursday 26 May | 11:00 - 11:45am

Online
Drive rapid growth in your business by turning it into a franchise. To learn how, join our free webinar. Register today.
Register Now

Day in Court: What Happens When Your Business Goes to Court

Thursday 2 June | 11:00 - 11:45am

Online
If your business is going to court, then you need to understand the process. Our free webinar will explain.
Register Now

How to Manage a Construction Dispute

Thursday 9 June | 11:00 - 11:45am

Online
Protect your construction firm from disputes. To understand how, join our free webinar.
Register Now

Startup Financing: Venture Debt 101

Thursday 23 June | 11:00 - 11:45am

Online
Learn how venture debt can help take your startup to the next level. Register for our free webinar today.
Register Now

About LegalVision: LegalVision is a commercial law firm that provides businesses with affordable and ongoing legal assistance through our industry-first membership.

By becoming a member, you'll have an experienced legal team ready to answer your questions, draft and review your contracts, and resolve your disputes. All the legal assistance your business needs, for a low monthly fee.

Learn more about our membership

Need Legal Help? Submit an Enquiry

If you would like to get in touch with our team and learn more about how our membership can help your business, fill out the form below.

Our Awards

  • 2020 Innovation Award 2020 Excellence in Technology & Innovation Finalist – Australasian Law Awards
  • 2020 Employer of Choice Award 2020 Employer of Choice Winner – Australasian Lawyer
  • 2020 Financial Times Award 2021 Fastest Growing Law Firm - Financial Times APAC 500
  • 2020 AFR Fast 100 List - Australian Financial Review
  • 2021 Law Firm of the Year Award 2021 Law Firm of the Year - Australasian Law Awards
  • 2022 Law Firm of the Year Winner 2022 Law Firm of the Year - Australasian Law Awards