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 for permanent full-time employees is 10 days for each year of service, equivalent to 76 hours of leave based on the employee working 38 ordinary hours a week. It should be noted that casual workers are not entitled to paid personal/carer’s leave.
Permanent part-time employees or permanent employees working variable hours are entitled to a pro rata amount based on the number of ordinary hours worked in a two-week fortnightly period, or 1/26th of the employee’s ordinary hours of work in a year, per year of service.
It is vital for employers to understand these two types of leave, and their obligations. This page will cover this, how much leave an employee can take, and if an employer can reasonably refuse personal/ carer’s leave.
What is personal 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.
What is carer’s leave?
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.
What is a compassionate leave of absence?
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.
When can employees apply for carer’s leave?
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:
- spouse or former spouse
- de facto partner or former de facto partner
- child
- parent
- grandparent
- grandchild
- sibling or
- a child, parent, grandparent, grandchild or sibling of the employee’s spouse or de factor partner (or former spouse/de facto partner)
Also included in the definition of immediate family are the employee’s:
- Adoptive relations
- Step relations
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.
How many days of personal/carer’s leave is an employee entitled to?
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 full-time employees are entitled to 10 days of paid personal leave per year of service. This equates to 76 hours of leave for an employee working 38 ordinary hours a week.
Permanent part-time employees and/or permanent employees working variable hours are entitled to a pro rata amount based on the number of ordinary hours worked in a two-week fortnightly period, or 1/26th of the employee’s ordinary hours of work in a year, per year of service.
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.