Questions & Answers - Personal and carer's leave

Question:

In regards to requests for medical certificates, is it correct that you can’t automatically request a medical certificate for 2 days sick leave, as employees only need to provide 'reasonable evidence'?

Answer:

No, you can request a medical certificate for every sick leave absence and it must be provided as soon as reasonably practicable, unless circumstances beyond the employee’s control prevent this. Next year, the requirement is less strict from the employee’s perspective – a certificate can only be demanded if reasonable and in most cases it will not be reasonable to insist that they be provided for single day absences.

Question:

Is paid compassionate leave drawn from personal/carers leave or is it extra entitlement?

Answer:

An employee is entitled to 2 days of compassionate leave for each occasion when a member of the employee's immediate family, or a member of the employee's household:

1. contracts or develops a personal illness that poses a serious threat to his or her life; or
2. sustains a personal injury that poses a serious threat to his or her life; or
3. dies.

This entitlement is in addition to personal/carer's leave and, other than for casual employees, is paid leave in the amount of the employee's base rate of pay for the employee's ordinary hours of work. To be entitled to take compassionate leave, an employee must give notice to the employer as soon as practicable (which may be a time after the leave has started) and advise their employer the period, or expected period, of the leave.

Question:

Is it mandatory that annual leave is paid out if requested? Or does the company have discretion both on award & non award employees.

Similar question for personal leave.

Answer:

This year an employee may only elect to cash out their annual leave or personal/carer’s leave where a workplace agreement permits this, in which case the request must be in writing and a certain amount of accrued leave must be retained (2 weeks in the case of annual leave and 15 days in the case of personal/carer’s leave).

Next year, all employees may reach agreement with their employers to cash out accrued paid annual or personal leave, subject to conditions stipulated in the National Employment Standards.

Question:

Under the NES an employee can request to cash out his existing leave? Correct? Under the current legislation is this illegal?

Answer:

This year an employee may only elect to cash out their annual leave or personal/carer’s leave where a workplace agreement permits this, in which case the request must be in writing and a certain amount of accrued leave must be retained (2 weeks in the case of annual leave and 15 days in the case of personal/carer’s leave).

Next year, all employees may reach agreement with their employers to cash out accrued paid annual or personal leave, subject to conditions stipulated in the National Employment Standards.

Question:

If an award or enterprise agreement has a provision to enable employees to cash out their personal leave, does that include personal leave that is currently accrued or only personal leave that accrues from 1 January 2010?

Answer:

It includes leave accrued before 1 January 2010.

Question:

Is compassionate a separate leave type or part of personal and carer's leave?

Answer:

Compassionate leave is a separate entitlement of 2 days' leave on each relevant occasion.

Question:

Compassionate and carer’s leave:

1. What do the new changes mean for same-sex couples?
2. How do I find out if my employer is governed by these new principles? If they don't will same-sex couples be treated equally in all cases for such things as compassionate and carers leave?

Answer:

Please note that our comments below apply on and from 1 January 2010, when the new national employment standards come into operations.

1. The changes relating to compassionate leave and carers' leave apply equally to same sex couples because a same sex person is included in the definition of "de facto partner" when the Fair Work Act is talking about a partner of a na-tional system employee.
2. If your employer is a 'national system employer' (which includes any corpora-tion) they are bound by the Fair Work Act and must apply the principles.
   However, regardless of the Fair Work Act, if your employer treats you differently because of your sexual preference you may have recourse under the Sex Dis-crimination Act 1984 (Cth) or relevant state anti-discrimination legislation.