Fair Work Act. Australia
and compassionate leave
Subdivision A — Paid personal/carer’s leave
95 Subdivision applies to employees other than casual employees
This Subdivision applies to employees, other than casual employees.
96 Entitlement to paid personal/carer’s leave
Amount of leave
(1) For each year of service with his or her employer, an employee is entitled to 10 days of paid personal/carer’s leave.
Accrual of leave
(2) An employee’s entitlement to paid personal/carer’s leave accrues progressively during a year of service according to the employee’s ordinary hours of work, and accumulates from year to year.
97 Taking paid personal/carer’s leave
An employee may take paid personal/carer’s leave if the leave is taken:
(a) because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee; or
(b) 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:
(i) a personal illness, or personal injury, affecting the member; or
(ii) an unexpected emergency affecting the member.
Note: The notice and evidence requirements of section 107 must be complied with.
98 Employee taken not to be on paid personal/carer’s leave on public holiday
If the period during which an employee takes paid personal/carer’s leave includes a day or part-day that is a public holiday in the place where the employee is based for work purposes, the employee is taken not to be on paid personal/carer’s leave on that public holiday.
99 Payment for paid personal/carer’s leave
If, in accordance with this Subdivision, an employee takes a period of paid personal/carer’s leave, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work in the period.
100 Paid personal/carer’s leave must not be cashed out except in accordance with permitted cashing out terms
Paid personal/carer’s leave must not be cashed out, except in accordance with cashing out terms included in a modern award or enterprise agreement under section 101.
101 Modern awards and enterprise agreements may include terms relating to cashing out paid personal/carer’s leave
(1) A modern award or enterprise agreement may include terms providing for the cashing out of paid personal/carer’s leave by an employee.
(2) The terms must require that:
(a) paid personal/carer’s leave must not be cashed out if the cashing out would result in the employee’s remaining accrued entitlement to paid personal/carer’s leave being less than 15 days; and
(b) each cashing out of a particular amount of paid personal/carer’s leave must be by a separate agreement in writing between the employer and the employee; and
(c) the employee must be paid at least the full amount that would have been payable to the employee had the employee taken the leave that the employee has forgone.
Subdivision B — Unpaid carer’s leave
102 Entitlement to unpaid carer’s leave
An employee is entitled to 2 days of unpaid carer’s leave for each occasion (a permissible occasion) when a member of the employee’s immediate family, or a member of the employee’s household, requires care or support because of:
(a) a personal illness, or personal injury, affecting the member; or
(b) an unexpected emergency affecting the member.
103 Taking unpaid carer’s leave
(1) An employee may take unpaid carer’s leave for a particular permissible occasion if the leave is taken to provide care or support as referred to in section 102.
(2) An employee may take unpaid carer’s leave for a particular permissible occasion as:
(a) a single continuous period of up to 2 days; or
(b) any separate periods to which the employee and his or her employer agree.
(3) An employee cannot take unpaid carer’s leave during a particular period if the employee could instead take paid personal/carer’s leave.
Note: The notice and evidence requirements of section 107 must be complied with.
Subdivision C–Compassionate leave
104 Entitlement to compassionate leave
An employee is entitled to 2 days of compassionate leave for each occasion (a permissible occasion) when a member of the employee’s immediate family, or a member of the employee’s household:
(a) contracts or develops a personal illness that poses a serious threat to his or her life; or
(b) sustains a personal injury that poses a serious threat to his or her life; or
(c) dies.
105 Taking compassionate leave
(1) An employee may take compassionate leave for a particular permissible occasion if the leave is taken:
(a) to spend time with the member of the employee’s immediate family or household who has contracted or developed the personal illness, or sustained the personal injury, referred to in section 104; or
(b) after the death of the member of the employee’s immediate family or household referred to in section 104.
(2) An employee may take compassionate leave for a particular permissible occasion as:
(a) a single continuous 2 day period;or
(b) 2 separate periods of 1 day each;or
(c) any separate periods to which the employee and his or her employer agree.
(3) If the permissible occasion is the contraction or development of a personal illness, or the sustaining of a personal injury, the employee may take the compassionate leave for that occasion at any time while the illness or injury persists.
Note: The notice and evidence requirements of section 107 must be complied with.
106 Payment for compassionate leave (other than for casual employees)
If, in accordance with this Subdivision, an employee, other than a casual employee, takes a period of compassionate leave, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work in the period.
Note: For casual employees, compassionate leave is unpaid leave.
Subdivision D — Notice and evidence requirements
107 Notice and evidence requirements
Notice
(1) An employee must give his or her employer notice of the taking of leave under this Division by the employee.
(2) The notice:
(a) must be given to the employer as soon as practicable (which may be a time after the leave has started); and
(b) must advise the employer of the period, or expected period, of the leave.
Evidence
(3) An employee who has given his