What probation is (and what it is not)
A probation period is a contractual arrangement at the start of employment that gives both the employer and employee a chance to assess whether the role is a good fit. An employer typically sets a probation period of 3 to 6 months from the start date.
Critically, the Fair Work Act 2009 does not define or mention “probation period” as a legal concept. Probation has no statutory basis in Australian federal law. It is purely a term in the employment contract.
Because probation has no legal definition, it does not suspend, reduce, or override any NES entitlements. The Fair Work Ombudsman states this directly: “While on probation, employees continue to receive the same entitlements as someone who isn't in a probation period. This includes the entitlements in the National Employment Standards.”
Fair Work Ombudsman, Probation (updated September 2025).
Leave accrues from day one
Both annual leave and personal/carer's leave begin accumulating from the first day of employment, including during a probation period. The Fair Work Ombudsman states this explicitly: “Annual leave accumulates from the first day of employment, even if an employee is in a probation period.”
For a full-time employee, the accrual rates are:
- Annual leave: 4 weeks per year (approximately 2.923 hours per week) under s.87
- Personal/carer's leave: 10 days per year (approximately 1.923 hours per week) under s.96
Priya starts a full-time job on a 6-month probation. After 3 months (13 weeks) she has accrued approximately 38 hours of annual leave (about 1 week) and approximately 25 hours of personal leave (about 2.5 days). These entitlements are hers regardless of whether she passes probation.
Fair Work Ombudsman, Annual leave (updated March 2026). Legislative reference: Fair Work Act 2009 (Cth) ss.86-87, 95-96.
Annual leave during probation
An employee on probation can request to take annual leave. The Fair Work Act does not impose any minimum service period before an employee can access annual leave: it accrues continuously and can be accessed as it accrues.
An employer can decline a leave request on reasonable business grounds (for example, during a peak trading period). An employer cannot, however, have a blanket policy of refusing all leave during probation, as that would be inconsistent with the NES.
If employment ends before probation is complete, the employer must pay out any accrued and unused annual leave. The Fair Work Ombudsman confirms: “If an employee doesn't pass their probation, they are still entitled to receive notice when employment ends [and] have their unused accumulated annual leave hours paid out.”
Use the annual leave calculator to see exactly how much leave you have accrued so far.
Sick leave and carer's leave during probation
If you are genuinely ill during a probation period, you are entitled to take paid personal/sick leave. Under s.96, leave accrues from the first day and can be accessed as it accrues. An employer cannot refuse sick leave on business grounds when an employee is genuinely unable to work due to illness or injury.
Your employer may ask for reasonable notice of the absence and, if they request it, reasonable evidence such as a medical certificate. If you are asked for a certificate and do not provide one, your employer may not be required to pay you for that absence.
Carer's leave (to care for an ill family member) has the same rules during probation. Casual employees on probation are entitled to 2 days of unpaidcarer's leave per occasion but do not accrue paid sick leave.
While an employer can dismiss during probation with notice, dismissing someone for exercising a workplace right (such as taking legitimate sick leave) may constitute adverse action under Part 3-1 of the Fair Work Act, which applies from day one of employment regardless of probation status.
What probation does affect
Probation has no effect on leave accrual or NES entitlements. What it does affect is eligibility for an unfair dismissal claim.
To make an unfair dismissal application to the Fair Work Commission, an employee must have completed the minimum employment period:
- 6 months for employees of businesses with 15 or more employees
- 12 months for employees of small businesses (fewer than 15 employees)
This minimum employment period is completely separate from the probation period in your contract. Your contract may say your probation is 3 months, but the statutory period for unfair dismissal eligibility is always 6 or 12 months. A shorter contractual probation does not give you earlier access to unfair dismissal protections.
Importantly, general protections against adverse action (Part 3-1 of the Act) apply from day one. If you are dismissed for exercising a workplace right, such as taking sick leave or making a complaint about your entitlements, you may have a general protections claim even within the minimum employment period.
Fair Work Ombudsman, Unfair dismissal. Legislative reference: Fair Work Act 2009 (Cth) ss.382-383.
Key takeaways
- Probation is a contractual term only. The Fair Work Act 2009 does not define or mention it. All NES entitlements apply in full from day one.
- Annual leave and personal/carer's leave accrue from the first day of employment, including during probation (ss.86-87, 95-96).
- If employment ends during probation, the employer must pay out notice and any accrued unused annual leave.
- Probation does not affect unfair dismissal eligibility: the minimum employment period (6 or 12 months) is set by the Fair Work Act, not the employment contract.
- General protections against adverse action apply from day one, regardless of probation status.
Author & reviewer
Sarah has spent over a decade advising Australian SMBs on Fair Work, NES compliance, and payroll. Based in Sydney, she has worked across hospitality, retail and professional services.