What are the rules governing sick leave and carer’s leave?

The National Employment Standards (NES) contain provisions governing sick leave (now called personal leave) and carer’s leave.

All permanent employees, including part-timers, but excluding casuals, accrue personal leave at the rate of 1/26th of the ordinary hours worked each week.
For a 38 hour week, that equates to 1.461 hours per week – a total of 10 days per year.

Personal leave is cumulative, meaning that any accrual not accessed in a particular year carries over into the next year for the full period of employment. There is, however, no obligation to pay-out accrued personal leave on termination.

The NES allows an employee to access their personal leave accrual if a member of the employee’s immediate family or household is sick or injured or requires help during a family emergency. In such circumstances the leave is described as carer’s leave. An immediate family member is defined as a;-

  • Spouse
  • De-facto partner
  • Child
  • Parent
  • Grandparent
  • Grandchild
  • Sibling, or
  • Child, parent, grandparent, grandchild or sibling of the employee’s spouse or de facto partner.

A household member is any person who lives with the employee.

An employer is entitled to ask for evidence if an employee accesses either personal leave or carer’s leave. The employee is obliged to contact the employer within a reasonable time of normal commencement to advise of either their illness or that they are claiming carer’s leave.

Each company can formulate its own policy regarding when a doctor’s certificate, or some other form of evidence, will be required. That policy should be advised to all staff and applied consistently.

Failure of an employee to produce the necessary evidence could mean that they would not be entitled to pay for the absence. A statutory declaration (sworn statement) from the employee could be accepted as long as it states why the employee was unable to obtain a doctor’s certificate and swears to the fact that either the employee or an immediate family member was sick.

For more information seek guidance from your professional advisor or contact MTA Global – email info@aada.asn.au to register and access AADA Industrial Relations and Workplace Health and Safety related services at a special member rate.

Ted Kowalski

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