NES Series – Part 2: Personal/Carers and Compassionate Leave

posted by Employment Innovations on March 30th, 2012  Posted in News

Entitlement
For each year of service with an employer, a permanent employee is entitled to up to 10 days paid personal/carer’s leave. This accrues during the year of service according to the employee’s ordinary hours of work and from year to year.

An employee may take personal/carer’s leave if the employee is unfit for work because of a personal illness or personal injury, affecting the employee or if the employee is unable to attend work as they need to provide care or support to a member of the employee’s immediate family, or member of the employee’s household who requires care or support because of a personal illness, or personal injury, affecting the member or an unexpected emergency affecting the member.

Personal/Carer’s leave is paid at the employee’s base rate for the ordinary hours worked and must comply with evidence and notice provisions below.

Cashing Out
Personal/Carer’s leave cannot be cashed out unless provided for in a Modern Award or workplace agreement.

If it is provided for, the leave must not be cashed out if the cashing out would result in the employee’s remaining accrued entitlement being less than 15 days, must be agreed upon by a separate agreement in writing and must be paid at least the full amount that would have been payable to the employee had the employee taken the leave.

Most awards do not allow for cashing out.

Can I ask an employee for a doctor’s certificate?
Yes, the NES does permit an employer to request reasonable evidence from the employee of their reason for taking personal/carers’ leave. Evidence is generally a doctor’s certificate, or can be a statutory declaration (a written statement by the employee, declared in front of an authorised witness). Some Modern Awards and enterprise agreements may also state the types of evidence that an employee must provide to evidence their absence from work.

What do I do if I suspect the employee is not ill?
The first step to take if you suspect an employee is not genuinely ill is to request the employee to provide evidence of the reasons for their absence. If the employee is unable to provide any evidence of their genuine illness, then a meeting should be arranged with the employee. At the meeting the employee should be asked to explain the reason for their absence and why no evidence has been provided to explain their absence. The employee should be given a copy of the company’s leave policy and informed that any absence from work which is unauthorised will be unpaid and could result in disciplinary action being taken against the employee. The employee should be informed that evidence of absence will be required in the future to prevent any further action being taken.

The employee should be asked whether there are any other problems they would like to discuss as there may be issues in the employee’s home life that need to be taken into account if there are a repeated or numerous unexplained absences.

Do I have to give an employee sick leave to attend a medical appointment or the dentist?
The definition of “sick leave” is too ill to work. A person attending a medical or dental appointment is not necessarily too ill to work and may not be eligible for sick leave. However, where an employee is too ill to work and is attending a medical appointment, they are entitled to sick or personal leave.

Can I have rules for sick leave such as “calling in”?
Yes, the employee is under an obligation to provide the employer with notice of the fact that they will be absent from work. The notice must be given to the employer as soon as practicable (which may be a time after the leave has started); and must advise the employer of the period, or expected period, of the leave. The most practical way for the employee to give the employer notice of their absence is for the employee to call in and speak to their manager and inform them the reason for their absence and the anticipated length of their absence.

Unpaid Carer’s Leave
A permanent employee is entitled to 2 days of unpaid carer’s leave for each occasion when a member of the employee’s immediate family or a member of the employee’s household requires care or support because of a personal illness, or personal injury, affecting the member or an unexpected emergency. This cannot be taken if during the period paid carer’s leave can be taken. This may be taken in a single, continuous period of up to 2 days or any separate periods to which the employee and his or her employer agree.

Unpaid carer’s leave is also available for casual employees.

How does personal leave interact with public holidays?
Where a public holiday falls within a period of personal leave, the employee is taken not to be on personal leave during the public holiday.

Compassionate Leave
An employee is entitled to up to 2 days of compassionate leave for each occasion when a member of the employee’s immediate family or household contracts or develops a personal illness that poses a serious threat to his or her life, or sustains a personal injury that poses a serious threat to his or her life, or dies. An employee may take compassionate leave if the leave is taken to spend time with the member of the employee’s immediate family or household who has the illness or after the death of the member of the employee’s immediate family.

For permanent employees this is paid at the employee’s base rate for the ordinary hours worked and must comply with evidence and notice provisions below.

For casual employees the leave is unpaid.

Notice
An employee must give his or her employer notice of the taking of the leave as soon as practicable. They must advise the employer of the period, or expected period of the leave.

Evidence
An employer is entitled to request evidence of the reasons for taking the leave including medical certificates, evidence of a death etc.

Historical Entitlement to Personal/Carer’s Leave
For incorporated entities covered under the Workplace Relations Act, the increase in personal leave from 5 days to 8 days took effect from 1 January 2004. However this acted as a safety net for NON-AWARD covered employees. Employees covered under Federal awards at that time had whatever sick leave entitlement was in the award – this tended to be 10 days – 50 Federal awards had more than 8 days leave prior to the AFPCS coming in. The minimum for all incorporated entities then became 10 days with the AFPCS in 2006.

NES Part 1 - Annual Leave

NES Part 2 - Personal/Carers and Compassionate Leave

NES Part 3 - Parental Leave

NES Part 4 - Long Service Leave

NES Part 5 - Hours of Work

NES Part 6 - Flexible Working Arrangements

NES Part 7 - Community Service Leave

Q and A on the NES - Fair Work Information Statement

Q and A on the NES - Public Holidays

Q and A on the NES - Notice of Termination

Q and A on the NES - Redundancy

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