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Compassionate leave: can we deduct from personal leave?

Or is compassionate leave a separate entitlement under NES?
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Compassionate leave: can we deduct from personal leave?

Compassionate leave: can we deduct from personal leave?

4 December 2019

If employees are absent to attend a funeral, is compassionate leave deducted from their personal/carer's leave?

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


 Q. We have an employee who recently suffered a bereavement in his family. The employee was absent for two working days which included attending the funeral. It was the company’s intention to take two days leave from his accrued balance of personal/carer’s leave as both forms of leave appear to be included under the provisions of the Fair Work Act (FWAct). The employee has suggested the leave for the funeral is separate from personal/carer’s leave. Is compassionate leave deducted from the employee’s balance of accrued personal/carer’s leave?
 

A. The answer is no. While compassionate leave is a subsection of the personal/carer’s leave provisions under the National Employment Standards (NES), it is a separate entitlement to paid personal/carer’s leave. The two forms of leave are mutually exclusive and subject to separate entitlements and different qualifications for leave.
Compassionate leave

Under the NES, a full-time or part-time employee is entitled to two paid days leave (including separate periods of up to two days) when a member of the employee’s household or an immediate family member contracts an illness or injury that is life-threatening, or dies.

“Immediate family member” means a spouse, de facto partner, parent, child, sibling, grandparent or grandchild of the employee, or a child, parent, grandparent, grandchild or sibling of a spouse or de facto partner of the employee. The employee must produce satisfactory evidence as proof of such serious illness, injury or death of a specified relative. Payment is at the employee’s base rate of pay.
 
There is no annual cap to the amount of compassionate leave an employee may take during the period of employment. A casual employee is entitled to two days unpaid compassionate leave in the same circumstances.
 
It should be noted that under the FWAct (s 105(3)) an employee has an entitlement to two paid days compassionate leave on each ‘permissible occasion’. According to the Explanatory Memorandum to the Fair Work Bill 2008, if the permissible occasion for taking compassionate leave is the contraction or development of a personal illness, or the sustaining of a personal injury, the employee may take the compassionate leave entitlement for that occasion at any time while the illness or injury persists.
 
The Explanatory Memorandum provides the following illustrative example:
 
An employee is advised her grandmother has been diagnosed as terminally ill, with the treating doctor advising the grandmother needs strong family support. The employee visits the grandmother on two separate occasions before the grandmother dies. Because the grandmother developed a terminal illness before passing away, there are two permissible occasions for taking compassionate leave.

Subject to notice and evidence requirements, the employee is entitled to two paid days compassionate leave over the course of the two visits and a further two days paid compassionate leave after the grandmother passes away.
 
This means compassionate leave is not necessarily related only to the death of an employee’s immediate family member or immediate household.

The bottom line: Compassionate leave is an entitlement under the National Employment Standards which is separate from an entitlement to personal/carer’s leave. Absence on compassionate leave is not deducted from an employee’s balance of paid personal/carer’s leave.


 
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