The Fair Work Act 2009 can sometimes create more confusion than clarity when trying to interpret its various provisions. One of those murky interpretations I have discovered, is the application of personal leave (known also as carers leave or sick leave) provision and that of the compassionate and bereavement leave provision.
Employers who as an interpretation, see compassionate leave as a sub-section of personal leave, are likely to consider them one and the same and therefore deduct requests for compassionate/bereavement leave from personal leave entitlements. That is easy enough to do especially when you go onto the Fair Work website and find that the explanatory notes for the two provisions written as one.
As clarification, an employee may take paid personal/carer’s leave:
- if they are unfit for work because of their own personal illness or injury (including pregnancy-related illness), or
- to provide care or support to a member of their immediate family or household, because of a personal illness, injury or unexpected emergency affecting the member. A member of the employee’s immediate family means 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.
Compassionate/bereavement leave on the other hand is given when an employee (including a casual employee) needs spend time with a member of their immediate family or household who has sustained a life-threatening illness or injury. Compassionate leave may also be taken after the death of a member of the employee’s immediate family or household.
As such, the two-day entitlement is given to an employee on compassionate grounds for each occasion as:
- a single continuous two-day period or
- two separate periods of one day each or
- any separate period
The distinction is noted upon coser examination of the wording on the above linked website and you can see that for personal leave: “The minimum entitlement to paid personal/carer’s leave for an employee (other than a casual employee) is 10 days per year. An employee’s entitlement to paid personal/carer’s leave accrues progressively during a year of service according to the number of ordinary hours worked and accumulates from year to year” (emphasis mine).
For compassionate/bereavement leave, the minimum entitlement notes: “An employee (including a casual employee) is entitled to two days of unpaid carer’s leave for each occasion when a member of the employee’s immediate family or household requires care or support because of a personal illness, injury, or an unexpected emergency” (emphasis mine).
The unpaid leave provision is further clarified as: “If an employee (other than a casual employee) takes a period of compassionate leave, the employer must pay the employee at the employee’s base rate of pay for the ordinary hours they would have worked during the period” (emphasis mine).
There is no limit as to the number of days or times that an employee can take compassionate/bereavement leave in a leave, calendar or financial year and leave is not given based on accruals unlike personal leave.
What employers need to now do, is ensure that they have firm guidelines in accordance with sections 104, 105 and 106 of the Fair Work Act 2009 so that compassionate leave is utilised as intended and where a distinction can be made, the employee is to take paid personal leave instead (this does not apply to casuals who have no entitlement to paid personal/carer’s leave).
It is important to remember, that the two are mutually exclusive.
Further reading: The National Employment Standards and Compassionate leave: What you need to know
Please contact Lauren Morrison at Lauren@lmhr.com.au or Mob: 0400 225 499 if you would like to learn more about how LM HR Consulting can assist your business with your HRM requirements.
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