Employees have a legal entitlement to many types of leave including paid personal/carer’s leave, unpaid carer’s leave and compassionate leave, if they satisfy certain requirements. An employee is also protected from adverse action taken by an employer because of their right to these types of leave.
Paid personal/carer’s leave may be used when the employee is too sick to work.
The above leave entitlements may also be available if an employee needs to care for others (or in circumstances such as stillbirth and miscarriage) or if there is an unexpected emergency.
Managers may be confused about how personal/carer's leave and compassionate leave works in the context of the employee caring for others or if the employee wants to take leave to deal with an emergency. Understanding this will help leaders respond consistently, lawfully and confidently.
The following breaks down how the different tyeps of leave work in care and emergency circumstances.
Leave entitlements are National Employment Standards (the NES) in the Fair Work Act 2009 and some employees may have more generous entitlements under an award, enterprise agreement, contract of employment or policy.
Leave entitlements that may be relevant to care or emergency circumstances include:
An employee may take paid personal/carer’s leave or unpaid carer’s leave to provide care or support to a member of the employee's immediate family or household because of:
An employee may take compassionate leave:
This is a common source of confusion, so it is important to understand who it includes. Immediate family includes the employee’s:
The definition extends to step and adoptive relationships.
The meaning of household member is not a defined legal term. It is likely to include someone who ordinarily or currently lives with the employee. That person does not need to be an immediate family member and might be a flatmate or extended family member such as a cousin or aunt.
An ‘unexpected emergency’ may be a sudden, unforeseen crisis or urgent situation affecting the wellbeing or care of a family or household member. It does not have to be medical problem.
For example, where a parent who had to leave work on short notice to pick up a child from school because the usual caregiver was suddenly unavailable or a fly-in-fly out employee had their babysitter cancelled a few days before a week-long work shift.
A ‘personal injury’ or ‘personal illness’ may be a scenarios where the family or household member is sick or injured, and will include mental and physical conditions.
For example, if a live-in partner needs help after elective surgery to recover at home or a child has a gastro bug.
Leaders often face scenarios where they are unsure if the employee can take personal/carer's leave or compassionate leave to deal with a family or household member’s illness or injury or emergency situation.
Any decision to not grant leave must be taken carefully. If an employer gets it wrong, the employee may have legal claims, including for not providing the entitlement and, if adverse action is taken, the employee may seek general protections, anti-discrimination or unfair dismissal remedies.
Below are four common examples.
This may entitle the employee to take paid personal/carer’s leave or unpaid carer’s leave.
Things to consider:
The circumstances of the particular request matter and need to be carefully considered.
If the parent is ill or injured and requires care or support, this may meet the eligibility test for the time the care is required.
This may be difficult to manage when the need to provide care and support to the parent becomes an ongoing one.
Depending on the circumstances, paid personal/carer’s leave, unpaid carer’s leave and compassionate leave may be available for a limited period of time.
If the employee has carer responsibilities for their parent, they may also have the right to request flexible work arrangements. The employee may also be able to use other accumulated leave, or the employer may also, at their discretion, provide access to an unpaid leave arrangement.
Routine childcare, school holidays or pre‑planned care arrangements are not usually circumstances that give an employee an entitlement to take personal/carer's leave.
Unless there is an illness, injury or unexpected emergency affecting the child during the school holidays and the employee needs to provide care and support, the employee will not have an entitlement to personal/carer's leave to look after children during school holidays.
Depending on the circumstances, an employee may be entitled to take personal/carer’s leave or unpaid carer’s leave to care for their newborn baby.
This might happen, for example, if the newborn baby is unwell or sick and the employee’s partner or other person is unable to reasonably provide that care or support.
However, if the employee is already on unpaid parental leave, they cannot take paid personal/carer’s leave or compassionate leave to provide care and support for the newborn baby.
It is important to remember that operational pressure doesn’t remove the employee’s entitlement to take personal/carer's or compassionate leave. But equally, an entitlement doesn’t exist unless the eligibility test is met.
Employees must satisfy notice and evidence requirements to be eligible to take personal/carer's or compassionate leave.
This means an employee must advise the employer ‘as soon as practicable’ of their intention to take the leave, which may be after the leave has started.
Employers can (but do not have to) require an employee seeking to take leave to provide evidence that would satisfy a reasonable person that the leave is being taken for the purpose of that entitlement. Evidence may be required by an employer even for short absences.
Even if evidence is not required, an employer should at least ask who the employee will be caring for, whether it is because of that family or household member’s illness, injury or emergency and how long the employee thinks they might be off work.
If requested, evidence does not have to be a medical certificate. A statutory declaration or other reasonable confirmation may suffice, depending on the situation. For example, evidence could be a letter from a health professional or family member, depending on the circumstances.
Evidence requirements are usually set out in a leave policy and must be enforced consistently to avoid legal claims. Doing this will also reduce disputes and perceptions of unfairness.
An employer may be able to refuse an employee’s request to take paid personal/carer's leave, unpaid carer's leave or compassionate leave if the employee is not entitled to take it.
For example, the entitlement may not be available if:
Employers need to be careful when refusing a request for leave, especially if it's not clear whether the employee is entitled to take it. That is because it is also unlawful to discipline, demote, dismiss or otherwise treat an employee adversely because of their right to paid personal/carer's leave, unpaid carer's leave or compassionate leave.
Employers should look at the whole picture before making decisions and consider if they can support the employee in another way, including by using other leave or flexible work arrangements. If it is unclear whether the employee is entitled to leave, advice should be sought.
The decision-making process should be supportive of the employee’s welfare and documented.
Knowing your obligations as an employer, as well as communicating employee responsibilities, is essential in ensuring that the various forms of leave available to employees is managed effectively.
Australian Industry Group's Managing Leave Handbook provides helpful and practical information on how to manage all the different forms of leave in the workplace and explains the interaction of the National Employment Standards with modern awards, enterprise agreements, contracts and any relevant state legislation. The Handbook also offers guidance on the implementation and management of leave policies and procedures, as well as a comprehensive 'frequently asked questions' section
All purchases receive a complimentary 12-month subscription to our annual updating service! Visit our online shop for more information and to order your copy today!
It is important to have a well written personal/carer’s leave policy and process that employees have read and understand.
The policy should accurately and clearly:
Leaving managers to improvise almost always leads to frustration, mixed messages, and avoidable IR risk. Members of Australian Industry Group can access our Sample Leave Policy for further support.
Providing leave for carer requirements isn’t about being generous or rigid. It’s about understanding the entitlement, applying it consistently, and responding to real situations with care and confidence. When leaders know where the boundaries sit and what to do when it is unclear, decisions are easier to make and explain, fairer to apply, and far less likely to escalate into disputes.
Take advantage of more than 150 years of experience actively solving members’ workplace issues and representing their interests at the highest levels of national and state government. Being a member of Australian Industry Group makes good business sense. Call us on 1300 55 66 77 or visit our Why join page to sign up for a consultation with one of our member representatives.
Georgina is Senior HR Content Editor – Publications at Australian Industry Group. With more than 25 years' experience in human resources and leadership, she has demonstrated her expertise across a diverse range of industries, including financial services, tourism, travel, government, agriculture and HR advisory. She is an accomplished writer and editor who creates engaging content that educates and informs. Georgina's writing includes a variety of formats, such as blogs, articles, policies, templates and guides.
