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Illness, injury and death are a part of life. When the worst happens, it’s natural to want to be with the people you care about. This is why compassionate leave is a protected entitlement under Australian workplace law. Every employer needs to know when and how to grant compassionate leave, so they can provide immediate clarity and support when tough times arise.
So what is compassionate leave precisely, how many days are to be granted, do you get paid for compassionate leave as an employee, and how does it differ from bereavement leave?
What is Compassionate Leave?
Compassionate leave is a type of leave that allows an employee to take time off work if:
- Someone in their immediate family or household dies or develops a life-threatening illness or injury
- A baby in their immediate family or household is stillborn
- The employee or their spouse or de facto partner experiences a miscarriage.
Compassionate leave allows the employee to turn their full focus to that personal matter without needing to worry about work obligations. In Australia, compassionate leave is a protected entitlement under the National Employment Standards (NES), governed by the Fair Work Act 2009. As we’re about to cover, compassionate leave entitlements vary depending on whether the employee is permanent or casual.
Who’s Considered Immediate Family?
The Fair Work Act defines “immediate family” as the employee’s spouse or former spouse, de facto partner or former de facto partner, child, parent, grandparent, grandchild or sibling. This includes immediate family of the employee's spouse or de facto partner, adoptive relations, and step-relations such as a step-child or step-parent.
Some company policies or enterprise agreements will have a broader definition of immediate family, so this is always worth checking when an employee gives notice of taking leave.
Compassionate Leave Entitlements in Australia
All employees covered by the Fair Work Act are entitled to compassionate leave in Australia, but whether that’s paid or unpaid depends on employment type:
Full-Time and Part-Time Employees
Full-time and part-time employees are entitled to two days of paid compassionate leave per occasion.
Casual Employees
Casual employees are entitled to two days of unpaid compassionate leave per occasion.
This leave can be taken in a two-day block or split over two separate days.
Is Compassionate Leave Paid? And How?
If the employee is employed full-time or part-time, yes. Their two days of compassionate leave per occasion should be paid at their base rate of pay for ordinary hours worked. This excludes bonuses, loadings (such as leave loading), penalty rates and most allowances.
Casual employees are entitled to two days’ unpaid compassionate leave for each occasion it’s needed. Sometimes employers choose to offer paid compassionate leave for casual workers through their company policy or an enterprise agreement, but this isn’t mandated through legislation.
What if an Employee Needs More than Two Days?
Serious illness, injury and death in loved ones certainly aren’t easy situations, and two days is often not enough. An employer can choose to grant additional paid or unpaid compassionate leave. The two days is simply the minimum entitled under the Fair Work Act.
Depending on the circumstances, the employee could also choose to use their other available types of leave, like annual leave or leave without pay, to spend time with their loved ones.
How Many Times Can Compassionate Leave Apply in a Year?
There is no limit to the number of compassionate leave occasions that can occur in a year, as long as they meet the criteria. Under the NES an employee receives an entitlement of two days each time they have a qualifying occasion. This leave doesn’t accrue, roll over to other years or draw from other leave balances. It’s simply applied when it’s needed.
Is Compassionate Leave the Same as Carer’s Leave?
Short answer: no. Carer’s leave is designed for when an employee needs to care for an immediate family or household member who’s sick, injured or affected by an unexpected emergency. The two types sound similar, but compassionate leave is treated and granted separately to sick and carer’s leave.
Carer’s leave comes out of the employee’s sick leave balance, which accrues over time worked, while compassionate leave is granted per occasion. A new employee would be entitled to two days of compassionate leave from their first day of employment, for example, while sick and carer’s leave takes time to accrue.
Sick and carer’s leave accrues to 10 paid days per year for full-time employees and the pro rata equivalent for part-time employees. There is no sick and carer’s leave entitlement for casual employees.
Does Compassionate Leave Come Out of Sick Leave?
No, compassionate leave is a separate type of leave applied for each eligible occasion and does not reduce the employee’s accrued sick leave balance. That being said, the two types of leave could be used one after the other if the employee needs more time to care for someone or recover.
Compassionate Leave vs Bereavement Leave: What's the Difference?
While the two terms are often used interchangeably, bereavement leave refers specifically to time off following a death in the immediate family or household. As such, all bereavement leave is compassionate leave, but not all compassionate leave is for bereavement.
Compassionate leave is the umbrella term, so someone who needs time off work for a bereavement would be granted two days under this type of leave. Some company policies or enterprise agreements provide more than the minimum set by the NES.
Compassionate Leave Examples
These are some compassionate leave examples that would typically warrant this type of leave:
- An employee’s grandparent passes away. The employee chooses to take their two days of compassionate leave together to support family and attend the funeral.
- An employee’s spouse has a life-threatening heart attack. The employer takes their two days of compassionate leave to attend to their bedside. Their spouse fortunately begins to recover, so the employee uses days out of their accrued sick and carer’s leave balance to care for them.
- An employee sadly suffers a miscarriage. They take two days of compassionate leave, then their employer works with them to arrange some annual leave so they can take more time to process and grieve. They have a gentle return to work with some days working from home.
The employer and employee can speak together and agree on the best combination of leave. Compassionate leave must always be granted first in the defined circumstances, but this could potentially be followed by annual leave, sick and carer’s leave or unpaid leave as appropriate.
Employer Responsibilities: Managing Compassionate Leave Requests
Empathetic compassionate leave starts long before the moment it’s actually needed. The first step is to have a clear and compassionate leave policy in place with the entitlements, process and any additional support all set out. Many businesses work with an external HR partner to build and maintain leave policies to ensure these are compliant.
When a valid occasion does occur, it’s the employer’s responsibility to:
- Approve eligible leave without unreasonable delay or unreasonable demands for evidence: more on requesting evidence in a moment.
- Check whether there are any applicable company policies or enterprise agreements that broaden the definition of immediate family or provide additional paid days.
- Maintain accurate records of the leave that is taken for compliance purposes
- Maintain confidentiality and discretion around the employee’s circumstances
- Consider whether other additional support could be provided, such as a flexible return-to-work arrangement or an Employee Assistance Program (EAP).
Can Employers Provide More Compassionate Leave?
Yes, employers can choose to provide more compassionate leave than is legally required. The NES sets the minimum they need to provide, but they’re free to offer extra support whether that’s additional paid days, flexible ways of working, or broader family definitions to extend the policy further.
How Much Notice is Needed for Compassionate Leave?
The very nature of an urgent health event or loss can make it impossible to provide much notice when it comes to compassionate leave. Sometimes, the employee will need to start travelling to their family or making arrangements before they’re able to give notice. However, it’s best if the employee can provide as much notice as possible and the expected length of the leave they’ll need to take.
How Should Employers Handle Compassionate Leave for Non-Immediate Family Members, or Pets?
Different relationships can hold different significance for people – including pets. More distant relatives such as aunties, uncles or cousins won’t typically meet the criteria for compassionate leave, but if the relative lives in the same household as the employee, that would trigger the leave entitlement. If the entitlement isn’t applicable, employers can use their discretion on a case-by-case basis to grant other types of leave or support.
If an employee asks for time off because their cousin’s husband’s brother had a fall in another state, that might be a case for annual leave or unpaid leave instead.
Can an Employer Ask for Evidence for Compassionate Leave?
Compassionate leave circumstances can be highly emotional and personal. Employers can request a death or medical certificate for a compassionate leave entitlement, but it’s important to approach this request with compassion. The request for evidence needs to be reasonable. Avoid asking invasive questions, and consider training for managers so they have appropriate responses at hand.
Which Illnesses and Injuries Does Compassionate Leave Cover?
Compassionate leave is triggered by a death, life-threatening illness or injury, or reproductive loss in the employee’s immediate family or household. A life-threatening event might include a major heart attack, car crash trauma, aggressive cancer, or stroke. Chronic and non-life-threatening illnesses generally wouldn’t be covered by compassionate leave unless they become life-threatening.
Can an Employer Refuse Compassionate Leave?
Not if the occasion meets criteria. If the event is eligible for compassionate leave, an employer can’t force the employee to use other leave in its place.
Of course, we would all want our workplace to support us should the worst happen, and treating employees with respect at a vulnerable moment will help to build long-term trust, morale, employee engagement, and retention. It’s also simply the right thing to do.
Do You Have Effective Leave Policies in Place?
Being clear and compassionate when an employee is going through a tough time is about as important as it gets in employee relations. There is no room for error when it comes to getting it wrong, both in an empathy sense and a compliance sense.
If you know your leave entitlements need review, or if you need help better aligning them within your broader HR strategy, HumanX HR is an ideal name to know. Our HR consulting services are available throughout Sydney, Melbourne, Newcastle, Perth, Brisbane and Canberra. Working as we do with leading Australian organisations, we know the nuances of building clear, considered HR policies.
