Olivia is the Head of Legal at Lawpath, where she helps Australian businesses navigate complex legal challenges with practical, commercially minded advice. She specialises in employment matters, contract drafting, pre-litigation strategy, dispute resolution, commercial law and startup compliance, and has supported clients across technology, healthcare, professional services and retail. Olivia is passionate about making legal services accessible, personable and effective for every client.
Introduction
Compassionate leave occurs when an employee takes paid or unpaid time off to care for someone within their immediate family. However, the question arises of what entitles a person to this form of leave? Read on to find out more.
Table of Contents
National Employment Standards
Compassionate leave forms part of the National Employment Standards (‘NES’). The NES applies to all employees covered by the national workplace relations system. They operate regardless of any award, agreement or contract of employment.
The NES establishes minimum entitlements for permanent employees to receive these forms of leave, which include:
- paid personal/carer’s leave;
- unpaid carer’s leave;
- paid or unpaid compassionate leave;
- unpaid family and domestic violence leave.
Thus, these forms of leave help employees deal with caring responsibilities, family emergencies, and the death or illness of family.
Compassionate leave
Entitlements of Compassionate Leave
Under the NES, a full or part time employee has the right to take a minimum of two days of compassionate leave. Accordingly, this allows them to care for a member of their immediate family who has sustained a life threatening illness or injury, or dies. There is no annual cap to the amount of compassionate leave an employee may take during the period of employment.
An employee may take 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.
What is an ‘Immediate Family Member’?
‘Immediate family member’ is defined under the Fair Work Act 2009 (Cth). It includes a:
- Spouse;
- De facto partner;
- Parent;
- Child;
- Sibling;
- Grandparent;
- Granchild.
If extended family such as cousins or uncles are a part of the employee’s household, the employee can take this form of leave for them.
Notice and Evidence Requirements
To claim this form of leave, an employee must provide notice that they are taking such leave as soon as practicable. The notice must also advise the employer of the period of the leave.
However, an employer may request evidence substantiating the reason for leave. Therefore, the employee may not be entitled to paid leave if they fail to provide notice that substantiates reasons for the leave. An award or agreement may include terms that set out the types of evidence an employee must provide to be entitled to leave. For example, they may request the employee provides a medical certificate.
Compassionate Leave Payments
A full or part-time employee who takes compassionate leave must be paid their base-rate for the ordinary hours they would have worked. However, casual employees are not entitled to paid leave, but they are entitled to unpaid leave.
Conclusion
In conclusion, compassionate leave is an entitlement under the NES that allows employees to take time off when situations as described above occur. Accordingly, employees will be paid their base rate for their ordinary work hours if they provide sufficient proof and evidence. If you are unsure about your rights surrounding your leave arrangements, be sure to contact Lawpath now.
