What you need to know about Personal Leave
This week, we will delve into the topic of personal/carer’s leave and how it operates under Australian workplace law.
What is Personal or Carer’s Leave?
Personal/carer’s leave, compassionate leave and family and domestic violence leave form part of the National Employment Standards (NES). The NES apply to all employees covered by the national workplace relations system, regardless of any award, agreement or contract of employment.
The NES establish minimum entitlements for permanent employees to receive:
- paid personal/carer’s leave
- unpaid carer’s leave
- paid or unpaid compassionate leave
- unpaid family and domestic violence leave.
These forms of leave are designed to help an employee deal with personal illness, caring responsibilities, family emergencies, family and domestic violence leave, and the death or serious illness of close family members.
Casual employees are eligible for unpaid carer’s leave, unpaid family and domestic violence leave and unpaid compassionate leave.
What are the Minimum Entitlements to Personal/Carer’s Leave?
The term ‘personal/carer’s leave’ effectively covers both sick leave and carer’s leave. Employees are entitled to:
- 10 days each year for full-time employees
- pro rata 10 days each year for part-time employees.
An employee’s entitlement to paid personal/carer’s leave accumulates progressively during a year of service, based on their ordinary hours of work. The entitlement to 10 days of personal/carer’s leave can be calculated as 1/26th of an employee’s ordinary hours of work in a year (as established recently by Mondelez’s case)
Personal/carer’s leave continues to accrue when an employee takes paid personal/carer’s leave or paid annual leave. Personal carer’s leave and compassionate leave will not accrue on unpaid leave unless it is community service leave or it is provided for in an award or agreement.
When can Paid Personal/Carer’s Leave be Taken?
An employee can take paid personal/carer’s leave:
- if they are unfit for work because of their own personal illness or injury (including pregnancy-related illness), or
- to provide care or support to a member of their immediate family or household, because of a personal illness, injury or unexpected emergency affecting the member. A member of the employee’s immediate family means a spouse, de facto partner, child, parent, grandparent, grandchild or sibling of an employee; or a child, parent, grandparent, grandchild or sibling of the employee’s spouse or de facto partner.
What Payments are Required When Personal/Carer’s Leave is Taken?
When paid personal/carer’s leave is taken, the minimum requirement is that an employee must be paid at their base rate of pay for the ordinary hours they would have worked during the period. An employee’s ‘base rate of pay’ (other than a pieceworker) is the rate of pay payable to an employee for his or her ordinary hours of work, but not including any of the following:
- incentive-based payments and bonuses
- monetary allowances
- overtime or penalty rates
- any other separately identifiable amounts.
Can Paid Personal/Carer’s Leave be Cashed Out?
Award or agreement covered employees can cash out paid personal/carer’s leave if all of the following apply:
- the award or agreement allows the practice
- there is a separate agreement in writing on each occasion
- the employee retains a balance of at least 15 days of untaken paid personal/carer’s leave
- the employee is paid at least the full amount that would have been payable had the employee taken the leave they have cashed out.
It is unlawful for an employer to force (or try to force) an employee to make (or not make) an agreement to cash out personal/carer’s leave under a term included in an award or agreement.
An award/agreement-free employee is not able to cash out paid personal/carer’s leave.
Unpaid carer’s leave
What are the minimum entitlements to unpaid carer’s leave?
An employee (including a casual employee) is entitled to two days of unpaid carer’s leave for each occasion when a member of the employee’s immediate family or household requires care or support because of a personal illness, injury, or an unexpected emergency.
An employee may take unpaid carer’s leave for each occasion as a single continuous period of up to two days, or any separate periods to which the employee and his or her employer agree. An employee cannot take unpaid carer’s leave during a particular period if the employee could instead take paid personal/carer’s leave. (This does not apply to casuals who have no entitlement to paid personal/carer’s leave.)
If you require further assistance with respect to the above or would like to know more, you are welcome to contact our team of experienced lawyers by clicking here to submit an online enquiry form or call us on 1300 QUINNS (1300 784 667) or on +61 2 9223 9166 to arrange conference or appointment. You can also order a free copy of our eBook on employment and contracting in Australia by clicking here.
Employees are covered under the National Employment Standards. But are you really an employee? Read the above article on employees and contractors for more information.