Work Choices: Personal carers leave

Introduction

Changes to both the Workplace Relations Act 1996 (WR Act) and the Workplace Relations Regulations 2006 have introduced a ‘standard’ which allows personal and carer’s leave to all employees.

The basic standard applied unless other express provision, in an employment contract for example, provides for more generous leave provisions.

This does not necessarily mean bad news for your business. On the contrary, employees may feel more satisfied and fulfilled and therefore be more productive at work.

Who is entitled to personal / carer’s leave?

All full-time and part-time employees covered by Work Choices are entitled to personal / carer’s leave. Casual employees are not entitled to paid personal / carer’s leave, but are entitled to unpaid carer’s leave.

How much is permitted?

Eligible employees are entitled to:

  • 10 days of paid personal/carer’s leave per year (including sick leave and carer’s leave);
  • Two days of unpaid carer’s leave per occasion; and
  • Two days of paid compassionate leave per occasion

When can it be taken?

Paid personal/carer’s leave can be taken:

  • Due to personal illness or injury (sick leave); or
  • To provide care or support for a member of the employee’s immediate family or household who requires care or support due to personal illness or injury, or an unexpected emergency (carer’s leave)

Paid compassionate leave

Paid compassionate leave is an extra. It may be taken upon the death of a member of the employee’s immediate family or household or to spend time with a seriously ill, injured or dying person who is a member of the employee’s immediate family or household.

Calculating personal/carer’s leave

Personal/carer’s leave is calculated on the basis of nominal, or specified hours worked in the previous four-week period. An employee is entitled to accrue 1/26 of the number of nominal hours worked during that four-week period.

The base number of weekly hours for calculating personal/carer’s leave is the employee’s specified hours, up to a maximum of 38 hours per week. Thus, an employee does not accrue such leave in respect of hours above 38 hours per week.

For example:

  • A full-time employee working a 38 hour week will accrue 1/26 of the number of hours worked during the previous completed four-week period (in this case 1/26 of 152 hours).
  • After 12 months, this employee will have accrued 76 hours of paid leave (equivalent of 10 days).
  • A full-time employee working 40 hours a week will accrue 1/26 of the number of nominal hours worked during the previous completed four-week period, capped at 152 hours. After 12 months, this employee will also have accrued 76 hours of paid personal/carer’s leave.
  • A part-time employee engaged to work for 19 hours a week will accrue 1/26 of the number of nominal hours worked by the employee during the previous completed four-week period (in this case 1/26 of 76 hours). After 12 months, this employee will have accrued 38 hours of paid personal/carer’s leave.

To ensure that employees affected by the capping of leave accrual remain entitled to 10 full days of personal/carer’s leave, when such employees take a day’s leave, they must take the equivalent of their nominal hours worked on that day and are entitled to be absent for other hours that they would have worked on that day.

For example, an employee whose works a 40 hour could take leave for the hours that would count towards nominal hours worked on each day (capped at 7.6 hours). They are then entitled to be absent for other hours that he or she would have worked on that day (0.4 hours).

This additional absence is not paid technically personal / carer’s leave nor does it break an employee’s continuity of service.

These provisions do not affect an employee:

  • Who has a more generous leave entitlement under a preserved award term about personal/carer’s leave;
  • Who has a more favourable leave entitlement under a workplace agreement or contract of employment; or
  • Whose specified hours are less than 38 hours per week.

How much is the employee paid?

The employee is entitled to be paid for each hour (or part hour) of leave at the employee’s basic periodic rate of pay (expressed as an hourly rate) immediately before the period of leave begins.

This does not include incentive-based payments and bonuses, loadings, monetary allowances or penalty rates.

Employee responsibilities

An employee must notify their employer as soon as reasonably practicable that they are unable to attend work for such reasons.

An employer can request an employee to provide a medical certificate for a period of sick leave taken. If it is not reasonably practicable for an employee to obtain a medical certificate for a period of sick leave, then a statutory declaration may be provided.

The documentary requirements are slightly different for carer’s leave. An employee can provide either a medical certificate or a statutory declaration if requested by their employer.

These notice and documentary requirements do not apply to an employee who could not comply due to circumstances beyond his or her control, such as an employee suffering severe mental or physical impairment.

An employee is not entitled to take paid sick leave if the employee is receiving workers’ compensation payments, unless expressly provided for in an applicable law of a Commonwealth, state or territory relating to workers’ compensation.

Unpaid carer’s leave

Employees are entitled to unpaid carer’s leave if they do not have any paid personal/carer’s leave credit available.

Unpaid carer’s leave can be taken in one continuous period (e.g. two consecutive working days) or in separate periods as agreed between the employee and employer.

An employer can request a medical certificate or a statutory declaration when an employee is taking, or has taken, unpaid carer’s leave.

Compassionate leave

All eligible full-time and part-time employees are entitled to compassionate leave.

An employee is entitled to take two days of paid compassionate leave for each permissible occasion when a member of his or her immediate family or household is suffering from a serious or life-threatening personal injury or illness.

An employer can request that an employee provide reasonable evidence of the illness, injury or death.Immediate family means the employee’s spouse (including de facto spouse, former spouse or former de facto spouses), child, parent, grandparent, grandchild or sibling. In addition, immediate family includes the child, parent, grandparent, grandchild or sibling of the employee’s current or former spouse (including de facto spouses).

When an employee takes a period of compassionate leave the employee is entitled to be paid for each hour (or part hour) of leave at the employee’s basic periodic rate of pay (expressed as an hourly rate) immediately before the period of leave begins.

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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