Your rights when taking unplanned leave

YOU may have absences from work for unexpected reasons.

The most common of these is personal leave, but unexpected leave can also be compassionate leave and family & domestic violence leave. ‘Personal leave’ is a term that covers sick leave and carer's leave. Sick and carer's leave lets you take time off to help deal with personal illness, caring responsibilities and family emergencies. Sick leave can be used when you're ill or injured. You may need time off to care for an immediate family or household member who is sick or injured or help during a family emergency, this is carer's leave but it comes out of your personal leave balance.

WHEN CAN I TAKE SICK AND CARER'S LEAVE?

You can take paid personal/carer’s leave: • if you're unfit for work because of your own illness or injury, including pregnancy-related illness • to provide care or support to a member of your immediate family or household because of a personal illness, injury or unexpected emergency affecting the member

WHO GETS PAID SICK AND CARER'S LEAVE?

All employees except casuals are entitled to paid sick and carer's leave as part of the National Employment Standards (NES) in the Fair Work Act 2009. You may have to give notice or evidence to get paid for sick and carer's leave. Personal/carer’s leave, compassionate leave and family and domestic violence leave form part of the NES that apply to all employees covered by the national workplace relations system. An award, enterprise agreement or other registered agreement, contract of employment or workplace policy can't provide for conditions that are less than the national minimum wage or the NES and can’t exclude the NES. The NES establish minimum entitlements for permanent employees, including: • paid personal/carer’s leave • unpaid carer’s leave • paid compassionate leave • unpaid family and domestic violence leave. These are designed to help you deal with things like personal illness or injury, caring responsibilities, family emergencies, family and domestic violence, and the death or lifethreatening illness or injury of close family members. Casual employees are entitled to take leave such as unpaid carer’s leave, unpaid family and domestic violence leave and unpaid compassionate leave.

HOW MUCH PAID SICK AND CARER'S LEAVE DO I GET?

Sick and carer's leave comes under the same leave entitlement. It's also called personal/carer's leave. The yearly entitlement is based on your ordinary hours of work and is 10 days if full-time and pro-rata if part-time. This can be calculated as 1/26 of your ordinary hours of work in a year. Some awards and agreements have more than 10 days.

DO I ALWAYS GET PAID WHEN TAKING PERSONAL LEAVE?

The NES includes paid and unpaid leave entitlements. When your accrued entitlement is exhausted you may have access to unpaid sick leave or carer’s leave. In some instances employers will allow you to access annual leave when personal leave is exhausted.

Your rights when taking unplanned leave

IMMEDIATE FAMILY MEMBERS OR HOUSEHOLD MEMBERS

An immediate family member is your: • spouse or former spouse • de facto or former de facto partner • child • parent • grandparent • grandchild • sibling • child, parent, grandparent, grandchild or sibling of your spouse or de facto partner or former spouse or de facto partner This includes step-relations, such as step-parents and step-children, as well as adoptive relations. A household member is any person who lives with you.

WHAT ARE THE MINIMUM ENTITLEMENTS TO PAID PERSONAL/CARER’S LEAVE?

The term ‘personal/carer’s leave’ covers both sick leave and carer’s leave, and you get: • 10 days each year if full-time • pro-rata 10 days each year if part-time Your entitlement to paid personal/ carer’s leave accumulates during a year of service, based on your ordinary hours of work. The entitlement to 10 days leave can be calculated as 1/26th of your ordinary hours of work in a year. Personal/carer's leave accumulates from year to year, and continues to accrue when you take paid personal/carer’s leave or paid annual leave. Personal carer’s leave and compassionate leave will not accrue on unpaid leave.

WHAT RATE OF PAY WILL I GET WHEN PERSONAL/CARER’S LEAVE IS TAKEN?

The minimum requirement is that you must be paid at your base rate of pay for the ordinary hours you would have worked during the period. Your base rate of pay, other than for a pieceworker, is the rate of pay payable to you for your ordinary hours of work, but not including any of the following: • loadings • allowances • overtime or penalty rates

WHAT HAPPENS TO UNUSED PERSONAL LEAVE?

Personal leave accrues for the full period of your employment from year to year ready to use when needed. This leave is not considered a paid entitlement when you finish employment and is not part of your final pay.

WHAT ARE THE MINIMUM ENTITLEMENTS TO UNPAID CARER’S LEAVE?

You are entitled, even if casual, to 2 days of unpaid carer’s leave for each occasion a member of your immediate family or household requires care or support because of a personal illness, injury, or an unexpected emergency. You may take unpaid carer’s leave for each occasion as a single continuous period of up to two days or any separate periods to which you and your employer agree. You can’t take unpaid carer’s leave during a particular period if you could instead take paid personal/ carer’s leave. This doesn't apply to casuals who have no entitlement to paid personal/carer’s leave.

WHAT IS COMPASSIONATE LEAVE?

Compassionate leave is a separate form of leave to personal leave used to spend time with a member of your immediate family or household who suffers a lifethreatening illness or injury.

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Unplanned leave continued

WHAT ARE THE MINIMUM ENTITLEMENTS TO COMPASSIONATE LEAVE?

You are entitled, even if casual, to 2 days of compassionate leave, and you are also entitled to take compassionate leave: • after the death of a member of your immediate family or household • if a child who would have been part of your immediate family or household is stillborn • if you or your current spouse or de facto partner has a miscarriage You may take compassionate leave for each occasion as: • a single continuous 2-day period • 2 separate periods of 1 day each • any separate periods to which you and your employer agree Some awards and agreements have more than 2 days.

WHAT PAYMENTS ARE REQUIRED WHEN COMPASSIONATE LEAVE IS TAKEN?

You must be paid at your base rate of pay for the ordinary hours you would have worked during the period. If you're a casual employee you're not entitled to any paid personal/ carer’s leave or compassionate leave, but you are entitled to unpaid carer’s leave and compassionate leave.

WHAT ARE THE MINIMUM ENTITLEMENTS TO FAMILY & DOMESTIC VIOLENCE LEAVE?

You are entitled to 5 days' unpaid family & domestic violence leave each year, even if casual. You are entitled to the full 5 days from the day you start work, and don’t have to build it up over time. The 5 days renew each 12 months but don’t accumulate from year to year if not used. You can take the leave if you need to do something to deal with the impact of family & domestic violence and it's impractical to do so outside your ordinary hours of work. For example, this could include: • making arrangements for your safety, or that of a family member, including relocation • attending court hearings • accessing police services The leave doesn’t need to be taken all at once and can be taken as single or multiple days. You and your employer can also agree for you to take less than one day at a time, or for you to take more than 5 days. Some awards and agreements have more than 5 days.

ARE THERE NOTICE AND EVIDENCE REQUIREMENTS?

For all periods of personal/carer’s leave, family & domestic violence leave or compassionate leave, you must give your employer notice of the taking of the leave. Notice must be given as soon as practicable, which may be at a time after the leave has started, and must advise of the period or expected period of the leave. Your employer can request evidence that would substantiate the reason for leave, and a failure to provide notice or, if required, evidence that would satisfy a reasonable person about the reasons for the leave, means you would not be entitled to the leave. An award or agreement may include terms relating to the kind of evidence you must provide to be entitled to paid personal/carer’s leave, unpaid carer’s leave or compassionate leave.

For example, your employer may request that you provide a medical certificate.

NOTICE AND EVIDENCE REQUIREMENTS FOR FAMILY & DOMESTIC VIOLENCE LEAVE

Your employer can ask for evidence showing you took the leave to deal with family & domestic violence. If you don't provide this, you may not get family & domestic violence leave. The evidence has to convince a reasonable person that you took the leave to deal with the impact of family & domestic violence. Types of evidence can include: • documents issued by the police • documents issued by a court • family violence support service documents • a statutory declaration Your employer can ask you to provide evidence for as little as one day or less off work.

CONFIDENTIALITY

Your employer must take reasonably practicable steps to keep information about your situation confidential when they get it as part of a leave application. This includes information about you giving notice you’re taking leave and evidence you provide. Employers are not prevented from disclosing information if: • it's required by law • it's necessary to protect the life, health or safety of you or another person Employers must be aware that any information about your experience of family & domestic violence is sensitive and, if mishandled, could have adverse consequences for you. Employers should work with you to discuss and agree on how this information will be handled. You can check your entitlement for unplanned leave by contacting HACSUassist on 1300 880 032 or assist@hacsu.org.au