Being an employer, you should be aware that employees will get sick from time to time, or they may need to care for others who are unwell. Carer’s leave and Compassionate leave also form a part of the National Employment Standards (NES) in the Fair Work Act. The NES establish minimum entitlements for employees including:
- Paid personal/carer’s leave.
- Unpaid carer’s leave.
- Paid compassionate leave.
In the guide below, we explain personal leave, carer’s leave and compassionate leave and employee entitlements around those types of leave.
What is personal and carer’s leave (sick leave)?
It is a natural part of life that employees are unwell at times and need to take sick leave to get better. But there are also instances when employees are needed to care for someone in their family – this is called carer’s leave.
Permanent part-time employees and 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 paid personal/carer’s leave but are entitled to 2 days unpaid carer’s leave on certain occasions.
This leave must be accrued, and taken, in hours. Any unused personal/carer’s leave in a year carries over into the next year.
When is carer’s leave applicable?
Carer’s leave is only applicable to employees who need to care for those in their immediate family. While there may be some cases in which employees would like to care for their friends or close acquaintances, the carer’s leave is only applicable to immediate family. So, who are the immediate family? Immediate family can be defined as any of the below:
- Spouse/De Facto Partner or former Spouse/De Facto Partner.
- Child or step-child.
- Parent, step-parebt or grandparent.
- Grandchild or sibling.
Giving evidence for personal leave or carer’s leave
To prevent employees from taking personal leave or carer’s leave without good reason, they must provide employers with evidence that the leave was taken for the right reasons. Evidence does not have to come in the way of a medical certificate or ‘letter from the Doctor’ – though each would suffice. A statutory declaration stating that they were unfit for work is acceptable evidence.
While in most cases this goes without saying, it is important for employers to know that employees must give as much notice as possible for their personal or carer’s leave. This notice should include the reason for leave as well as how likely they are going to be on leave.
How much do I pay employees during personal leave or carer’s leave?
Similar to other forms of leave, during periods of personal leave or carer’s leave employees are entitled to be paid for the ordinary hours they would have worked that day, had they not been on leave. The amount deducted from their personal/carer’s leave balance depends on the number of ordinary hours for which they were absent. If absent for a full day, deduct the number of ordinary hours they would have worked from their balance. If they were absent for a part-day, e.g. 4 hours, deduct the number of ordinary hours for which they were absent, i.e. 4 hours.
Unless their award, agreement, or contract offers more, you need to pay your employee at least their base rate for the normal hours of work. However, this does not include penalties, bonuses, or annual leave loading.
Unused personal/carer’s leave is not paid on termination of employment unless specified in an applicable industrial instrument, contract, or policy.
What Happens if an employee uses all their personal leave or carer’s leave?
Sometimes employees use up all their leave or carer’s leave – whether it be due to extended periods of illness or multiple instances. But just because they have used up their leave though does not mean they must go to work when unwell. Employers also have the discretion to allow employees to access other forms of paid leave by agreement, e.g. unpaid leave, annual leave or long service leave – always seek mutual agreement first and confirm this in writing.
Compassionate leave
Another form of leave that employees are entitled to is compassionate leave. Compassionate leave can be taken when a member of an employee’s immediate family or household has a personal illness or injury that poses a serious threat to their life, or in some cases causes death. Employees are entitled to two days per occasion of paid compassionate leave. An employee is entitled to compassionate leave:
- After the death of a member of the employee’s immediate family or household, or they contract or develop a life-threatening illness or injury.
- If a child who would have been part of the employee’s immediate family or household is stillborn.
- If an employee, or the employee’s current spouse or de facto partner, has a miscarriage.
An employee may take compassionate leave for each occasion as:
- A single continuous 2-day period.
- Two separate periods of one day each.
- Any separate periods to which the employee and employer agree.
However, if they are employed casually, this leave is unpaid.
Compassionate leave and payment
If an employee (other than a casual employee) takes a period of compassionate leave, the employer must pay the employee at the base rate of pay for the ordinary hours they would have worked during the period. Casual employees receive unpaid compassionate leave.
Notice of compassionate leave
For all periods of carer’s leave or compassionate leave, an employee must give their employer notice of taking the leave.
The notice must be given to the employer as soon as possible, keeping in mind the circumstances surrounding the leave. The employee must also advise the employer of the period of the leave. As an employer you are entitled to request evidence that would substantiate the reason for the leave. A failure to provide notice or, if required, evidence that would satisfy a reasonable person and substantiate the reasons for the leave, could mean the employee is not entitled to the compassionate leave.
Manage carer’s leave and compassionate leave
As experts, Peninsula can help you understand the finer details of paid or unpaid carer’s leave and compassionate leave. If you need help managing employee entitlements or implementing processes around leave requests, call our 24/7 advice line.