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Can you put a cap on carer's leave?

Can we place a cap on the accrual and taking of personal/carer’s leave?
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Can you put a cap on carer

Can you put a cap on carer's leave?

22 January 2020

Can we place a cap on the accrual and taking of personal/carer’s leave?

Our Workplace Advice Line recently received this question from a Workplace Assured subscriber.


Q. Some of our employees have accumulated a large amount of paid personal/carer’s leave. Previously, it was common for awards to cap the amount of personal/carer’s leave an employee could accumulate, usually at 12 years' service.

The Fair Work Act does not appear to make such a provision nor do the respective modern awards which cover our employees. We'd like to change our leave policy to include a maximum accumulation of personal/carer’s leave, after which an employee forfeits further accrual.

Is this permitted under the Fair Work Act or the applicable modern awards? The relevant awards are the Manufacturing and Associated Industries and Occupations Award 2010 and the Clerks – Private Sector Award 2010.


A. Under the Fair Work Act (s96), any untaken balance of paid personal/carer’s leave carries over to the next year. There is no cap on the amount of personal/carer’s leave an employee may accumulate during the course of their service with an employer.

A cap on sick leave accumulation was a term in many federal and state awards prior to the introduction of Fair Work legislation.

Paid personal/carer’s leave accrues during periods that count as an employee’s ‘service’, which is defined as including all periods of employment other than:

  • unpaid leave, e.g. parental leave or leave without pay granted by an employer
  • an unpaid absence (other than community service leave)
  • an unauthorised absence, e.g. unprotected industrial action.

An employee does not accrue personal/carer’s leave during an absence on workers compensation, unless otherwise provided by the relevant state or territory workers compensation law.

There is no definition of ‘ordinary hours of work’ – this is determined by the ordinary hours of work for an employee covered by the relevant modern award for a week or a day, which will be used to calculate payment for paid personal/carer’s leave or paid compassionate leave.


Modern awards
Generally, the terms of a modern award relating to personal/carer’s leave refer to the National Employment Standards under the Fair Work Act.

This means there is no cap on accumulation of personal/carer’s leave which is specified by a modern award. This includes the Manufacturing and Associated Industries and Occupations Award 2010 and the Clerks –Private Sector Award 2010.


The bottom line: Any untaken balance of personal/carer’s leave is carried over to the next year for the duration of an employee’s service with an employer. This means there is no cap on the accumulation of an employee’s personal/carer’s leave while they remain in their employment.

Got a workplace question you need answered? Workplace Assured customers can access the 24/7 workplace advice line for further information.
 

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