September 5, 2019
When an employee falls ill, they may have access to personal leave. If a family member falls ill and the employee takes time off to care for them, an employee may be able to access carer’s leave.
Under the National Employment Standards (NES), permanent workers, such as full-time and part-time employees in the federal system are entitled to this leave. Personal and carer’s leave is combined into a single entitlement.
The minimum entitlement is 10 days per year. It should be noted that casual workers are not entitled to paid personal/carer’s leave.
It is vital for employers to understand these two types of leave, and their obligations. This page will cover this, as well as how much leave an employee can take, and if an employer can reasonably refuse personal/ carer’s leave.
Personal leave can be used by permanent employee who are unable to work due to a temporary illness or injury. It can often be referred to as sick leave.
To be eligible for personal leave, an employee must provide notice as soon as reasonably practicable. They must also provide evidence if requested.
If an employee wishes to take time off to care for a member of their immediate family or household, then they may be able to take carer’s leave. The NES sets out who is considered “immediate family or household”.
Before you approve a request for carer’s leave you should clarify the relationship between the employee and the affected family member.
An employee can take carer’s leave if a family member is ill, injured or finds themselves in an unexpected emergency.
Like personal leave, employers can request evidence of the need for support. This can be in the form of a medical certificate, doctor’s letter or statutory declaration.
Compassionate leave is a different type of entitlement to personal /carer’s leave. If a member of an employee’s immediate family or household dies, or contracts a life-threatening illness or injury, an employee may be able to take compassionate leave.
All employees under the Fair Work System are entitled to compassionate leave, under the NES.
Full-time and part-time employees receive paid compassionate leave whereas casual employees have access to unpaid compassionate leave.
The entitlement to compassionate leave is 2 days per occasion that an employee’s immediately family or household member dies or suffers a life-threatening illness or injury. This indicates that the entitlement may not be used in a year or could be utilised multiple times depending on the situation.
An employee, in the federal system, will have access to carer’s leave if their family member meets the definition for “immediate family” under the Fair Work Act 2009.
The Fair Work Act 2009 defines immediate family as the employee’s:
Also included in the definition of immediate family are the employee’s:
The definition of “spouse” includes husband or wife (opposite or same sex), ex-spouse or de facto partner.
If the member of the family does not meet the definition of immediate family, then there is no entitlement to compassionate leave.
In other words, an employee’s ex-wife’s grandmother is considered immediate family, but their uncle or aunt is not.
The days of personal/carer’s leave that an employee is entitled depends on two things – if they are permanent or casual, and if they’re covered by a Modern Award or agreement.
The NES indicates that permanent employees are entitled to 10 days of paid personal leave per year.
Casual employees are not entitled to any amount of paid personal leave per year.
If an employee falls under a Modern Award or enterprise agreement, their personal leave entitlements may be different. Consult the Award or agreement’s stipulations for further information.
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An employee can use personal leave for when they’re sick or injured. Personal leave must only be used when that sickness or injury prevents them from carrying out their normal work duties.
Personal leave is not intended to be used for a holiday or because the employee simply wants a day off work.
An employer has the right to request evidence of an employee’s illness or injury for any occasion the employee has requested personal leave.
Yes. Personal carer’s leave does accumulate throughout the year. This indicates that an employee is not automatically credited with 10 days when they start working.
At the end of each year, any outstanding balance of days not taken, will carry over into the next year.
In the event that the employee takes more days off then they have accrued, they will only be paid for the days accumulated. The rest of the absence would usually be unpaid leave.
Personal/Carer’s leave is intended to be used when an employee is sick or injured, or to care for sick or injured family member.
Annual leave is intended to be used by employees to take a holiday or time off work.
Permanent employees will receive 10 days of personal leave and 4 weeks of annual leave per year.
Casual employees are not entitled to paid personal/carer’s or paid annual leave.
Permanent employees are entitled to accrue 10 days of paid personal leave per year.
If an employee falls sick and has run out of sick leave, they can still request to take a day off work. An employer is not obligated to pay the employee in this circumstance. This is called unpaid leave.
Casual employees aren’t entitled to paid sick leave.
In theory, an employee can be on unpaid sick leave indefinitely. If an employee has to take leave from work due to a serious or long illness, employers must allow the employee leave from work.
However, the Fair Work Act 2009 has provisions for dismissing an employee in some circumstances when they have been away from work for longer than three consecutive months, or for more than three months in a twelve-month period.
The best option may be to cover for an employee on a long-term absence is to make a temporary hire or re-jig your current staff roster to make up for the absence.
For any absence on sick leave, an employer can request reasonable evidence. Reasonably evidence may include, but is not limited to, a medical certificate, doctor’s letter or a statutory declaration.
If an employee wishes to take the day off to care for a relative, an employer can also request evidence of this.
No. In the situation where carer’s leave is taken in line with the Fair Work Act 2009 an employer cannot refuse for an employee to take time off.
However, an employee may not be paid carer’s leave under certain circumstances.
For example, if the employee is requesting leave for a member who is not their immediately family or a household member, this is usually unpaid.
It may also be the case that the employee is not paid in the circumstances where notice and evidence is not provided.
An employer can request for evidence for an absence on personal carer’s leave. The Fair Work Act 2009 indicates that the evidence must satisfy a reasonable person that the leave was taken for an illness or injury. This may include a medical certificate or a statutory declaration.
When requested to provide evidence, this request must be completed within a reasonable time frame.
On the face of it, an employer has to accept a doctor’s certificate as legitimate. The same will generally apply if a medical certificate is not provided by a GP but is provided by another suitable source such as a certificate provided by a pharmacist for minor ailments.
An employer can reject a medical certificate from a medical practitioner only in exceptional circumstances. For instance, if the employer believes that the medical certificate is fraudulent.
There may also be occasions where the employer requires further information, such as in the case of a return to work from injury to ensure the safety of their employees. In these cases, it may be necessary to seek further information from the employee or medical practitioner to ensure the employee is fit for their duties.
Compassionate leave is a separate entitlement. As such, compassionate leave does not come out of an employee’s personal or annual leave balance.
If an employee is already on personal leave, they can take compassionate leave if they need it instead of personal leave.
Compassionate leave is paid for full- and part-time employees, and unpaid for casuals.
Full-time and part-time employees are paid at their base rate of pay for the hours they would have worked on the day they take the leave.
Paid compassionate leave generally does not include other entitlements such as loading, bonuses or penalty rates.
It also is not paid out when an employee leaves a business.
Compassionate leave, unlike other leave entitlements, does not accrue. Rather it is triggered in the event of an immediate family or household member’s death or contracting a life-threatening illness or injury.
Employees are allowed two days of compassionate leave which can be taken as a two-day period, or as two separate days.
An employee can take compassionate leave any time they need it.
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