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As per the National Employment Standards (NES), employees are entitled to paid personal and carer’s leave from their employer. It is essential that, as an employer, you understand the legislation that governs these entitlements, being the Fair Work Act 2009.
Employees can take personal leave in Australia due to personal illness or injury, this is also known as ‘sick leave’, or take personal leave to provide care for a member of their immediate household or immediate family. Some employees are confused around the definitions for personal leave, carer’s leave and sick leave, in fact, they are one and the same and should not be treated as separate.
In addition to the paid personal leave, the NES allows employees to take up to two days of unpaid carer’s leave on each occasion. Any period longer than two days is subject to the employer’s discretion.
Employees can take personal leave if they are unfit for work due to illness or injury. In addition, employees can take carer’s leave to care for immediate family or household members.
Immediate family members can include current spouses or de facto partners, as well as former spouses and de facto partners. It also includes a child, grandparent, grandchild, or sibling. These also include step-relatives and any immediate family members of a spouse or de facto partner (both current and former). A household member is defined as anyone who is living with the employee.
You can request an employee to provide reasonable proof of illness or injury.
Paid personal leave can only be used by employees if they’re suffering from illness or injury and are unfit to attend work, or if they are performing caring duties as described above.
Annual leave can be taken by employees at any time that is mutually agreed to by an employer. As an employer, please keep in mind you cannot unreasonably refuse to grant annual leave to an employee.
Paid personal leave accrues progressively from an employee’s first day of work. For every year of service with an employer, employees are entitled to a minimum of 10 ‘notional’ paid days of personal leave. For part-time employees this means they accrue 10 days of personal leave based on their hours of work.
Personal leave accumulates from year to year. Personal leave continues to accrue when an employee is on any form of paid leave including personal leave, annual leave, and long service leave. If an employee is taking unpaid leave of any kind, including unpaid sick leave, they do not accumulate personal leave.
During periods of paid personal leave, you are required to pay the employee their base rate of pay under the NES. This should account for the ordinary hours they would have worked during the period. Paid personal or carer’s leave doesn’t include loadings, overtime or penalty rates.
Note that contracts of employment, modern awards or enterprise agreements may provide more generous personal leave entitlements – as an employer, you should check the details.
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:
There is no set period of notice that an employee needs to give an employer before taking personal leave. Employees should give employers notice as soon as possible. This can be after the personal leave has started. Employees should also let the employer know how long they will be absent from work.
In some cases, accrued personal leave can also be used as maternity leave. This can be due to pregnancy-related illness, miscarriage or stillbirth, where employees would have otherwise taken unpaid special maternity leave.
If an employee has elective surgery, they can take a paid personal leave of absence at the discretion of their employer. This is usually judged on a case-by-case basis. Employers can also ask employees to produce evidence that confirms they were unfit for work.
Employees covered by a modern award or enterprise agreement may be able to cash out their personal leave. This depends on the specific award or agreement.
A full list of awards and agreements is available on the Fair Work Commission website.
Want to know more on this or discover more on how you can manage leave effectively, call our partner Suzanne and her team at Performance Advantage today.
Contact them on;0408 897 079
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