Personal leave is an entitlement under the National Employment Standards (NES) for all employees under the national system. Personal leave is for employees who are unable to work due to illness or injury (“sick leave”) or due to the need to care for an immediate family or household member who is ill or injured (“carer’s leave”). The personal leave provisions of the NES should be read in conjunction with any personal leave provisions in an applicable Award or contract of employment where they are more beneficial than the provisions of the NES.

Accrual of Personal (Sick & Carers) Leave

All full-time employees are entitled to accrue paid personal leave at the rate of 2 weeks or 10 working days per annum). Part-time employees are entitled to a pro rata amount of accrued paid personal leave. Full-time and part-time employees who have exhausted their accrued paid personal leave and casual employees are also entitled to unpaid personal leave.

Notice Requirements

Any employee who is unable to work due to personal leave or carer’s leave must notify his/her employer in accordance with any leave policy or other mutually understood terms that may apply in the workplace.

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An employee may take paid personal/carer’s leave if the leave is taken because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee; or to provide care or support to a member of the employee’s immediate family, or a 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.

Evidence Requirements

In accordance with the Fair Work Act, the employer has a right to request evidence for any absence from work under this entitlement should they deem this necessary.

The employee must, where requested by the employer, give the employer evidence that would satisfy a reasonable person that the leave has been taken for the appropriate reason. The types of evidence commonly requested include a medical certificate or statutory declaration.

Definition of Immediate Family Member

The entitlement to take carer’s leave relates to a member of the employee’s immediate family or a member of the employee’s household. Under s12 of the Fair Work Act, reference to “immediate family” means a spouse, de-facto partner, child, parent, grandparent, grandchild or sibling of the employee, or a child, parent, grandparent, grandchild or sibling of a spouse or de-facto partner of the employee. Reference to “de-facto partner” means a person who, although not legally married to the employee, lives with the employee in a relationship as a couple on a genuine domestic basis (whether same sex or different sexes), and includes a former de-facto partner of the employee.

Cashing Out Personal (Sick & Carers) Leave

The Fair Work Act states that paid personal leave may only be cashed out in accordance with the terms of an Award or Enterprise Agreement. If the Award or Enterprise Agreement is silent on this matter, no cashing out is permitted.

Personal (Sick & Carers) Leave On Termination

Any accrued and untaken personal leave is not paid out on termination of employment.

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Disclaimer

The information provided in this knowledge base article is general in nature and is not intended to substitute for professional advice. If you are unsure about how this information applies to your specific situation we recommend you contact Employment Innovations for advice.

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