Personal leave is an entitlement contained within the National Employment Standards (NES). The NES applies to all employees that are covered by the national workplace relations system. An employee is entitled to personal leave regardless of any award, agreement or contract of employment. You cannot “contract out of” your entitlement to personal leave.
Personal leave or “sick and carer’s leave” falls under the entitlement of ‘Personal/Carer’s’ leave and includes the following:
paid personal/carer’s leave;
unpaid carer’s leave;
paid or unpaid compassionate leave.
These types of personal leave are available to employees to assist them in recovering from a personal illness or dealing with their caring responsibilities, family emergencies or the death or serious illness of close family members.
While casual employees are not entitled to paid personal leave entitlements, they are still entitled to take 2 days of unpaid carer’s leave (when applicable) and 2 days of unpaid compassionate leave per occasion (a permissible occasion).
Personal/carer’s leave covers both sick leave and also carer’s leave. The minimum entitlement for all full-time employee is 10 days paid personal/carer’s leave per year (and a pro rata entitlement for a part-time employee).
Personal/carer’s leave accrues progressively during a year of service according to the number of ordinary hours worked by the employee. The leave will continue to accrue (roll over) from year to year if the leave is not used. The leave will also continue to accrue if the employee is on any period of paid leave. Personal/carer’s leave will not accrue while the employee is on a period of unpaid leave, unless it is community service leave or it is provided for in an award or enterprise agreement.
An employee may take personal/carer’s leave if:
- they are unfit for work because of their own personal illness or injury; or
- they are required to provide care or support to a member of their immediate family or household because of an illness, injury or unexpected emergency.
When an employee is on a period of 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, had they not been absent.
An employee’s ‘base rate of pay’ is the rate of pay an employee would receive for their ordinary hours but does not include:
- overtime or penalty rates;
- incentive-based payments and bonuses; or
- any other separately identifiable amounts.
Some Awards and Registered Agreements allow for personal/carer’s leave to be cashed out. In those circumstances, the leave can only be cashed out if the following is satisfied:
- there is a separate agreement in writing on each occasion;
- the employee retains a balance of at least 15 days of untaken leave; and
- the employee is paid at least the full amount that would have been payable if the employee had taken the leave.
Employees, including casual employees, are also entitled to two days of unpaid carer’s leave for each separate occasion. The circumstances when unpaid carer’s leave can be taken are the same as taking paid carer’s leave. Unpaid carer’s leave can be taken in one continuous period of up to two days, or separate periods by agreement with the employer.
For all periods of personal/carer’s leave, an employee must give their employer notice of taking such leave. The notice must be given as soon as practicable and comply with any company policies relating to the taking of leave. An employer is able to request evidence from an employee to substantiate the reason for taking personal/carer’s leave, e.g. a doctor’s certificate or statutory declaration. If an employee fails to provide evidence when requested by the employer, the employer may be able to withhold payment for the period of leave.
It is recommended that all companies implement comprehensive leave policies outlining both the notice and evidence requirements for employees taking periods of personal leave.
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