Full-time employees are entitled to 10 personal leave days a year for sick and carer's leave.(Adobe Stock: Jacob Lun)
Have you ever needed time off for an appointment or to care for a family member, and wondered whether you can claim it as personal leave?
People employed permanently in Australia are entitled to10 days' paid personal leavea year under theNational Employment Standards (NES)— the minimum employment entitlements applied to Australian workers — to help them navigatepersonal illness, caring responsibilities, orfamily emergencies.
Those 10 days are in addition to the four weeks of annual leavefull-time workers accrue each year, and part-time employees also receive both annual and personal leave entitlements on a pro-rata basis.
But what are the differences between the types of personal leave you can take, and in what circumstances can you access them?
Anyunused leave is carried over to the next year, as emeritus professor and former University of Sydney Dean of Law Joellen Riley explains.
The thing about sick leave is you can only take it if you need it, so giving people a sick leave entitlement doesn't necessarily cost [an employer] a lot of money, Professor Riley says.
Under the Fair Work Act, employees taking sick leave mustprovide sufficient evidenceto satisfy a reasonable person that they weregenuinely unable to workdue to illness, injury or an emergency.
In the Act, it actually just says you have to give notice to the employer as soon as reasonably practicable, and that could be after the leave has commenced, Professor Riley says.
She says you would usually supply amedical certificateif it’s your own illness, but there are other options.
If, for instance, you were laid low with a 24-hour stomach bug … a short period of leave without a medical certificate may very well be sufficient to satisfy a reasonable person.
In some cases,astatutory declarationcould be considered reasonable evidence, but Professor Riley warns a statutory declaration is a very serious thing and making a false declaration is a criminal offence.
Adriana Orifici, a senior lecturer and director of Monash University Business School's Labour, Equality and Human Rights Group, says your award, enterprise agreement or an employer's policies and procedures canprovide further clarity.
An employer has the discretion to prescribe examples of what it is that the employer would require to reasonably satisfy it, she says.
Something you may be unaware of is that, according to the Fair Work Ombudsman,if you are sick or injured while on annual leave, you can opt to use a paid personal leave entitlement instead of annual leave. Your employer can still request notice and evidence for this request.
When can you take carer’s leave?
Paid carer's leaveis available to full-time and part-time workers and is deducted from the same balance as sick leave.
It can be taken when an employee needs to care for a family member or household member who requires care or support due to a personal illness, injury, or emergency.
An immediate family is defined to include your spouse or partner, whether that's de facto or not, any child of that partnership, either [you or your spouse's] parents or grandparents or any siblings of either of you, Professor Riley says.
People may be unaware they areentitled to take paid personal leave for a member of their householdthat they are not related to,she adds.
For instance, if you were sharing digs with a couple of people and one of the household members suddenly fell down the stairs and needed to be taken to the hospital, that would be an emergency of a member of your household, and you could take a day's paid leave — if you were a permanent employee — to deal with that.
Dr Orifici says there is also a separate entitlement under the Act for unpaid carer's leave, which is triggered when employees have exhausted their paid carer's leave.
That unpaid carer's leave entitlement is also available to casual employees, she says.
What is compassionate leave for?
Also known asbereavement leave, compassionate leave can be taken if a member of an employee'simmediate family or household dies or contracts a life-threatening illness or injury, a baby in their immediate family or household is stillborn, or they or their current spouse or de facto partner has a miscarriage.
Under the NES, full-time and part-time employees are entitled totwo days' paid leave, which can be taken as a single two-day period or two separate, non-consecutive days — every time they meet the criteria. This leave is separate from sick or carer's leave entitlements, but it does not accrue.
In fact, casuals are allowed to take unpaid [compassionate] leave, Professor Riley says.
So if you're a casual who's rostered on and you're suddenly caught at the deathbed of a close relative and you don't show up for your shift, the employer can't decide to sack you for that. Casuals only get paid when they work, but you can't be punished for taking it.
Since 2023, all Australian workers employed under the NES — including casual employees — also have access to10 days of Paid Family and Domestic Violence Leave.
An employee must be experiencing family and domestic violence to be able to take this leave.
Flexible work arrangements
The Fair Work Ombudsman says there are also instances in which full-time and part-time employees are legally entitled to requestflexible working conditions— including the ability to work from home — provided they have worked for the same employer for a year or more.
Examples includeif a worker is theparent or carer of a child who is school-aged or younger, isa carer(as defined by the Carer Recognition Act 2010), isa person with a disability,pregnant, or experiencingfamily and domestic violence.
The right to request flexible working arrangements is a parallel framework of entitlements that exists for longer-term and ongoing caring responsibilities, Dr Orifici says.
Employees navigating these various entitlements need to consider which is the most suitable for the circumstances that they are encountering and get the relevant support.
