What Is Personal Leave? A Guide for Australian Employers

This guide explains personal/carer's leave under the National Employment Standards (NES) for employees covered by Australia's national workplace relations system. Check the applicable award, registered agreement and employment contract for additional entitlements. These cannot provide less than the NES.

This guide covers what employees are entitled to, how personal leave accrues, what evidence you can ask for and how to manage leave across local and offshore teams.

General information only, not legal advice. Check the Fair Work Ombudsman for your situation.

Personal leave, also called personal/carer's leave or sick and carer's leave, covers time off because an employee is unfit for work due to illness or injury, or needs to provide qualifying care or support to an immediate family or household member. Under the NES, paid personal/carer's leave is available to full-time and part-time employees. Casual employees can access unpaid carer's leave when eligible. It is part of the National Employment Standards (NES), the minimum rights for all employees in the national system.

Full-time and part-time employees use one paid sick and carer's leave balance under the NES. Paid personal/carer's leave covers two situations:

• Sick leave: When an employee can't work because of a personal illness or injury.
• Carer's leave: When an employee needs to care for or support an immediate family or household member who is sick, injured or facing an unexpected emergency.

An unexpected emergency isn't limited to illness or injury. For example, it can include having to pick up a child from school at short notice. Whether an unexpected emergency qualifies depends on the circumstances.

Immediate family means a spouse or de facto partner (current or former), child, parent, grandparent, grandchild or sibling. It also includes those relatives of the employee's current or former spouse or de facto partner, as well as step and adoptive relations. A household member is anyone who lives with the employee.

Under the NES, full-time and part-time employees get paid personal/carer's leave. Full-time employees are entitled to 10 days a year. Part-time employees get a pro rata amount based on their ordinary hours of work.

Casual employees are entitled to unpaid carer's leave but not paid personal leave. Employees, including casuals, can take 2 days of unpaid carer's leave per occasion when an immediate family or household member needs care or support because of illness, injury or an unexpected emergency. Full-time and part-time employees can only use this entitlement when no paid sick or carer's leave is available for that occasion. Paid personal leave is paid at the employee's base rate for the ordinary hours they would have worked.

Personal leave accrual is progressive. It builds up with each employee's ordinary hours of work from their first day. A full-time employee's 10 days a year works out to 1/26th of their ordinary hours in a year. It also keeps accruing while the employee is on paid leave, including annual leave and personal leave.

Unused paid personal/carer's leave carries over from year to year. Under the NES, it isn't paid out when employment ends. Keep accurate payroll records of leave accrued and taken.

Under the NES, notice and evidence requirements apply to both paid personal/carer's leave and unpaid carer's leave. Rules about payment and cashing out concern paid entitlements.

• Notice: Employees must tell you as soon as practicable, which may be after the leave has started, and say how long they expect to be away.
• Evidence: You can ask for evidence that would satisfy a reasonable person, such as a medical certificate or statutory declaration, even for a single day off. If an employee doesn't provide evidence when asked, they may not be entitled to be paid for that leave. Evidence requests must be reasonable in the circumstances. Check any applicable award or registered agreement for evidence requirements, and explain your approach in the leave policy.
• Medical appointments: For an employee's own pre-arranged appointments or elective surgery, paid sick leave is available only if they are unfit for work because of personal illness or injury. Carer's leave may apply instead when the employee needs to provide qualifying care or support to an immediate family or household member.
• Public holidays: A public holiday during paid sick or carer's leave is not deducted from the employee's paid leave balance under the NES.
• Cashing out: Employees can only cash out personal leave if their award or registered agreement allows it. Most awards do not allow it. Each cash-out must be voluntary, have a separate written agreement, leave at least 15 days' untaken paid sick and carer's leave, and pay at least the full amount the employee would have received for taking the leave. An employer must not force or try to force an employee to make or not make a cash-out agreement. Award and agreement-free employees can't cash it out.
• Termination: Under the NES, unused paid sick and carer's leave is not paid out when employment ends. Check the employment contract and applicable instruments for any additional final-pay entitlements.

Check the eligibility and payment rules for each type of leave before recording it in payroll.

The extra week of annual leave for shiftworkers has specific eligibility requirements. Check the applicable award, agreement or NES definition rather than assuming every shiftworker qualifies.

Use the applicable NES, award and agreement requirements to write a leave policy. As a practical administration checklist, include:

• Who employees notify, and how
• When they should notify you
• When you may request reasonable evidence
• Who checks notice and evidence and records the leave
• How leave is recorded in payroll and payroll cut-off times

Explain the process to managers. Check whether an award or registered agreement specifies additional requirements. A workplace policy cannot reduce NES entitlements.

When reviewing your leave process, check for:

• Evidence requests that are not reasonable in the circumstances
• Payroll records that do not reflect leave accrued or taken
• Confusion between paid personal/carer's leave and unpaid carer's leave
• Incorrect leave categories in payroll
• Overseas employment arrangements that have not been checked for applicable entitlements
• Leave policies that provide less than the NES

Employees working overseas may have workplace entitlements under the laws of the countries where they work and where their employer is incorporated. Australian workplace entitlements can also apply in some circumstances.

Do not assume that using an Employer of Record (EOR) automatically excludes Australian workplace laws. Check the employer, where and how the employee was engaged, their primary place of work and any applicable agreement.

The Fair Work Ombudsman recommends seeking independent advice about employees working overseas. Identify the requirements for each employment arrangement before setting up a shared leave process.

Start with the applicable NES entitlements, then check the employee's award, registered agreement and employment contract. Record leave accrued and taken, request only reasonable evidence and explain the process to managers.

For employees working overseas, seek advice about the laws and employment arrangements that apply. A shared administrative process does not replace the need to check each employee's entitlements.