Immediate Family Leave

What is Immediate Family?

The definition of ‘immediate family’ becomes important when an employee wants to take paid or unpaid leave because of matters involving an employee’s immediate family or a household member. According to the definition in the Fair Work Act 2009 an employee’s immediate family members include the employee’s: 

• Spouse or former spouse; 

• De facto partner or former de facto partner; 

• Child; 

• Parent; 

• Grandparent; 

• Grandchild; or 

• Sibling. 

An immediate family member is also the child, parent, grandparent, grandchild or sibling of the employee’s spouse or de facto partner, and the definition of immediate family extends to step or adopted relatives. As for members of the employee’s household, this includes anyone who lives with the employee. 

Compassionate And Bereavement Leave

What Qualifies As Compassionate Leave? 

Also known as bereavement leave, compassionate leave is when an employee needs to take time off to: 

• Provide care or support when someone in the employee’s immediate family or household is suffering from a life-threatening illness or injury; 

• Deal with the death of an immediate family or household member or the stillbirth of a child (e.g. plan or attend a funeral) 

• In the case of other relatives or friends, if the employer agrees. 

All full-time and part-time employees are entitled to paid compassionate leave at their base rate of pay for the time they would have worked if they hadn’t been on compassionate leave.   

An employee’s base rate of pay is the rate of pay an employee receives during ordinary hours, but does not include: 

• Incentive-based payments and bonuses 

• Loadings 

• Monetary allowances 

• Overtime or penalty rates 

• Other separately identified amounts 

Casual employees are only entitled to unpaid compassionate leave. 

Whether the employee is permanent or casual, the employer can make a reasonable request that the employee produce satisfactory evidence for the compassionate leave, i.e. proof that the member of the employee’s immediate family or household has contracted or developed a life-threatening illness or sustained a life-threatening injury, or of the death of an immediate family or household member. Examples of acceptable evidence may include medical certificates issued by a registered medical practitioner, death certificates, and death notices in the newspaper. 

How Much Compassionate Leave can an Employee Take? 

An employee may take up to two days of compassionate leave any time the employee needs it, so on each occasion an immediate family or household member dies or suffers a life-threatening illness or injury. The days can be taken in a number of different ways: 

• A single two-day block 

• Two separate days off  

• Any separate period you and the employee agree upon 

Employees must give as much notice as possible of their intention to take compassionate leave, along with an estimated time of absence. In some circumstances, say in the event of a sudden medical emergency or death, it is reasonable for an employee to give notice of the leave after they have already begun their compassionate leave. 

Personal/carer’s Leave

Personal/carer’s leave is another category of leave entitlement involving the care for immediate family or household members in case of illness of injury. Personal/carer’s leave may also cater for unexpected family emergencies. It is different to compassionate leave and is a separate entitlement. 

Under the National Employment Standards (NES) which form part of the Fair Work Act 2009, employees are entitled to paid or unpaid personal/carer’s leave so they can deal with personal illness or injury, or provide care or support to an immediate family member or member of their household because of a personal illness or injury or an unexpected emergency that affects that member. 

Full-time employees are entitled 10 days of paid personal/carer’s leave for each year they work for the same employer on a full-time basis. Part time employees are entitled to 10 days of paid leave on a pro rata basis. Casual employees are entitled to unpaid carer’s leave for two days each time an immediate family or household member requires care or support because of personal illness or injury, or is involved in an unexpected emergency. 

For full-time and part-time employees, personal/carer’s leave will continue to accrue when an employee takes a period of paid personal/carer’s leave or paid annual leave.  

An employee cannot take unpaid carer’s leave during a particular period if the employee could instead take paid personal/carer’s leave. When a permanent employee takes paid personal/carer’s leave, they must be paid at their base rate of pay for the ordinary hours they would have worked during that period.  

Can Paid Personal/Carer’s Leave Be Cashed Out? 

An employee not covered by an award or agreement is not able to cash out their personal/ carer’s leave entitlements. Employees covered by an award or agreement may cash out their leave if: 

• The award or agreement allows for cashing out of personal/care’s leave; 

• There is a separate agreement in writing each time the employee cashes out any personal/care’s leave; 

• The employee retains a balance of at least 15 days of untaken paid personal/carer’s leave after any personal/carer’s leave is cashed out; and 

• The employee is paid at least the full amount that would have been payable had the employee taken the personal/carer’s leave instead. 

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Family And Domestic Violence Leave 

From the day they start work with their employer, all employees (including part-time and casual employees) are entitled to five full days of unpaid family and domestic leave each year. An employee can take this leave if they need to attend court, liaise with the police, or attend to other matters concerning their own safety or the safety of a close relative, including an immediate family member, and it is impractical to do these things outside working hours.  

Confidentiality 

Employers should bear in mind that if an employee provides personal information when they apply for or give notice of their intention to take immediate family leave, the employer should keep the reasons for the leave confidential, especially if the employee is required to provided reasonable evidence of the specific circumstances that entitle them to the leave. 

However, you may disclose any information regarding the circumstances surrounding the employee’s leave it is required by law or to protect the life, health or safety of a person. 

Employsure can help you understand immediate family leave, including compassionate and personal/carer’s leave. Call us on 1300 651 415 for free initial advice.