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Personal / carer's leave entitlement

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From 1 January 2010, the National Employment Standards (NES) replace the non-pay rate provisions of the Australian Fair Pay and Conditions Standard (the Standard).

All employees (except casuals) are entitled to paid personal/carer’s leave under the NES.

The personal/carer’s leave entitlement below comes from the NES. An entitlement to personal/carer’s leave that comes from an award or agreement may be different, but cannot be less than the entitlement under the NES.

  • paid personal/carer's leave = 10 days each year
  • unpaid carer's leave = 2 days per occasion (for casual employees or if paid leave has been used)
  • paid compassionate leave = 2 days per occasion
  • unpaid compassionate leave (casual employees only) = 2 days per occasion

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.

When taking personal leave (including carer’s and compassionate leave), an employee must let their employer know as soon as possible that they're unable to work. They must also let their employer know the period of leave, or expected period of leave.

An employer is entitled to request evidence that would substantiate the reason for leave. The employee is not entitled to the leave if the employee fails to provide either:

  • notice (as soon as practicable), or
  • evidence (when requested) that would satisfy a reasonable person.

An award or agreement may include terms relating to the kind of evidence that an employee must provide in order to be entitled to paid personal/carer’s leave, unpaid carer’s leave or compassionate leave. For example, an employer may request that the employee provides a medical certificate.

The employer must pay personal /carer’s and compassionate leave at the employee's base rate of pay for the ordinary hours they would have worked during the period of leave.

This doesn't include separate entitlements, such as incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates.

When an employee takes a period of paid personal/carer’s or compassionate leave, they're entitled to be paid for each hour (or part hour) of leave taken.

An employee (other than a casual) is entitled to paid personal/carer’s leave of 10 days per year of service. The 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.

All employees (including casuals) are also entitled to two days unpaid carer's leave for each occasion they need it.

For employees covered by an award or agreement, cashing out of paid personal/carer’s leave is permitted if all of the following apply:

  • the award or agreement allows it
  • there must be a separate agreement in writing on each occasion that leave is cashed out
  • the employee must retain a balance of at least 15 days of untaken paid personal/carer’s leave
  • the employee must be paid at least the full amount that would have been payable had the employee taken the leave that the employee has cashed out.

An employer must not exert undue influence or undue pressure on an employee to cash out a period of personal/carer’s leave.

An employee not covered by an award or agreement is not able to cash out paid personal/carer’s leave.

All employees, including casual employees are entitled to two days unpaid carer's leave for when a member of their immediate family or household requires care and support due to illness, injury or an unexpected emergency.

Full-time and part-time employees are only eligible for unpaid carer’s leave if they don't have any paid personal/carer’s leave left.

Unpaid carer’s leave can be taken in one continuous period (e.g. two consecutive working days) or in separate periods agreed between the employee and employer (e.g. four consecutive half-days could be taken, so the employee can share caring duties with someone else).

An employee (including a casual employee) is entitled to two days of compassionate leave to spend time with a member of the employee’s 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.

An employee may take compassionate leave for each occasion as:

  • a single continuous two day period; or
  • two separate periods of one day each; or
  • any separate periods to which the employee and his or her employer agree.

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 of leave.

Please note that the information provided on this page:

  • Does not provide a complete or authoritative statement of the law;
  • Does not constitute legal advice by Net Lawman;
  • Does not create a contractual relationship;
  • Does not form part of any other advice, whether paid or free.

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