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Sick Leave and Compassionate Leave

Personal/Carers, Compassionate & Community Service Leave.

1. Personal or Carers Leave 

Background and eligibility

The National Employment Standards (NES) details the entitlements to personal and carers leave. Paid personal or carers leave is the correct terminology for the phrase ‘sick leave’. All employees (other than casuals) are entitled to paid personal leave or paid carer’s leave, of 10 days per year. The entitlement to paid personal/carers leave accrues from year to year. Paid personal/carers leave is leave that is provided for an employee if, due to their own personal circumstances, they are sick or injured.

Carers leave is available to employees if they need to provide care or support to a member of their immediate family or household. The Fair Work Act 2009 (Cth) sets out who qualifies as a member of an employee’s immediate family. This definition encompasses a spouse, de facto partner, child, parent, grandparent, grandchild or sibling of an employee; or a child, parent, grandparent, grandchild or sibling of the employee’s spouse or de facto partner.

Unpaid personal/carers leave is an entitlement to 2 days leave for each instance, which an employee can take when a member of their immediate family or household requires care or support due to illness, injury or an unexpected emergency. This type of unpaid carers leave can be taken in one continuous period, or broken up, for example over four half days, to share caring with another person. The entitlement to unpaid carers leave is available to all employees, including casual employees.

Accrual of Paid Personal/Carers Leave.  

Paid personal/carers leave is accrued on a yearly basis. It accumulates from year to year and accrues on a pro-rata basis for periods of less than a year. When an eligible employee takes paid annual leave or paid personal or carers leave, the personal/carers leave owing to them will continue to accrue. Unless provided for specifically in an award, personal or carers leave will not accrue whilst an employee is on any form of unpaid leave.

Notice and Evidence.

Employees need to give their employer notice for any periods that the employee proposes to take as personal/carers leave. This notice must be given as soon as is practicable. In relation to the evidence required, most awards will stipulate the provisions relating to the type of supporting evidence that must be supplied by an employee taking personal/carers leave, or refer to the evidence requirements as set out in the National Employment Standards (NES).  When an award refers back to the NES, s107 of the Fair Work Act 2009 (Cth) outlines the notice and evidence requirements in relation to personal/carers leave. This section states that the employer can request evidence to confirm the need for personal/carers leave.

Payment.

Payment of personal leave is made on the basis of the employees base rate of pay for the ordinary hours that an employee would have worked during the period that they take off. A base rate of pay does not include incentive payments and bonuses, loadings, monetary allowances, overtime or penalty rates or other separately identifiable amounts.

Termination and cashing out.

Paid personal/carers leave is not paid upon termination. However, some individuals and organisations choose to make arrangements to ‘cash out’ their paid personal or carers leave to reduce the balance owing to employees. This is permissible for employees that are covered by an award or workplace agreement (such as an Australian Workplace Agreement (AWA) or an Enterprise Agreement (EA)), providing the employee freely agrees, and in the following circumstances:

  • the award or agreement that covers the employee allows for the practice, and
  • there is an agreement in writing in each instance of ‘cashing out’, and
  • the employee retains a balance of 15 days personal or carers leave, and
  • the employee is paid the same amount that they would have been paid had they taken the leave in the usual manner.

Transferring employment or business.

A transfer of employment occurs when an employee moves from one employer (the old employer) to another employer (the new employer) within three months of a transfer of business and performs substantially the same work for the new employer as they performed for the old employer.

A transfer of employment can also occur where an employee moves from one employer (the old employer) to another employer (the new employer) who is an associated entity of the old employer within a specified time frame of ending employment with the old employer (this time frame may vary state by state).

A transfer of business can occur where one of the following connections between the old employer and the new employer exists:

• a transfer of assets,

• outsourcing,

• insourcing, or

• where the two employers are associated entities.

When there is a transfer of employment, the period of service with the old employer will generally count as service with the new employer, and the employee will keep any accrued personal or carers leave that they had with the old employer.

2. Compassionate Leave.

Background and Eligibility.

Personal/carers leave should not be confused with compassionate leave. Paid compassionate leave is available to all employees, except casuals. It is a period of leave that can be granted for an employee when an immediate family or household member sustains an injury that is considered life threatening, or when an immediate family or household member dies.

The entitlement to compassionate leave is for a period of two days for each occasion that an employee is eligible. It can be taken as two separate or continuous days, or as otherwise agreed to between the employer and employee.

Unpaid compassionate leave is available for any eligible casual employee providing they meet the criteria in relation to an immediate family or household member sustaining a life threatening injury or dying.

Accrual of Compassionate Leave.

Compassionate leave does not accrue as it is granted for each occasion in the circumstances outlined above.

Notice and Evidence.

The notice and evidence requirements for taking compassionate leave are the same as those required in relation to personal and carers leave. Evidence may be requested by the employer to confirm that the compassionate leave is taken for a permissible occasion.

Termination and Cashing Out.

As compassionate leave is taken on an each occasion basis and is not accrued, there are no payments made in relation to compassionate leave upon termination, and no cashing out options available.

3. Community Service Leave

Community service leave is a form of miscellaneous leave that some employees may be eligible for when participating in a community service activity. These types of activities include jury service, voluntary emergency management activities or some other activity that may be prescribed by various regulations. Notice must be given to employers by the employee as soon as practicable regarding leave proposed to be taken under these circumstances and evidence may be required by the employer to support such leave taken. This type of leave is unpaid, except for jury service leave, when the first 10 days are paid. The payments made to any employee for jury service leave is a form of ‘make up’ pay, that is, the employer pays the difference, if any, between what the employees base rate of pay is, and any jury service pay that the employee receives whilst attending jury service.

Points for Employers.

  • Have a thorough understanding of the personal/carers, compassionate and community service leave entitlements for your employees. Further details can be found in the National Employment Standards (NES) contained within the Fair Work Act 2009 (Cth), this Standard must be adhered to.
  • Employers must keep up to date records on the amount of leave owing to employees. Fair Work Australia requires that those records show the leave taken, if any, and the balance of the employees entitlement to that leave. The employer can be issued with an infringement notice for not keeping these records.
  • Understand what the termination payments or cashing out provisions in relation personal/carers leave may be.
  • Make it clear to employees what the evidence requirements are for employees when taking personal/carers, compassionate or community service leave.
  • If in doubt, seek help from a professional as to how the NES, and particularly the leave provisions apply to you and your employees.

 

Author: Danica Leys

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It is intended as a guide only and does not replace specific legal advice.

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