MTA EMPLOYMENT RELATIONS FACT SHEET. Fair Work Act 2009 Personal/Carer s Leave. Taking Paid Personal/Carer s Leave or Compassionate Leave

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1 MTA EMPLOYMENT RELATIONS FACT SHEET Fair Work Act 2009 Personal/Carer s Leave Updated May 2013 The National Employment Standards (NES), within the Fair Work Act 2009, Part 2-2, contains Division 7 - Personal/Carer s Leave and Compassionate Leave. This Division sets out the standards for all fulltime, part-time and casual employees. For award-covered employees, employed under the Vehicle Manufacturing, Repair, Services and Retail Award (VMRSR Modern Award) and the Clerks Private Sector Award (Clerks Modern Award), the NES and the award requirements must be read together to determine entitlements. For award-free personnel, the NES on its own determines entitlements. Taking Paid Personal/Carer s Leave or Compassionate Leave Personal/Carer s Leave An employee may take paid personal/carer s leave if the leave is taken because the employee is not fit for work because of a personal illness, or personal injury affecting the member; or to provide care or support to a member of the employee s immediate family, or a member of the employee s household, who requires care or support because of: A personal illness, or personal injury affecting the member; or An unexpected emergency affecting the member. Definition of Immediate Family Member (for carer s leave and compassionate leave) The definition is in section 12 of the Fair Work Act, and states that an employee s immediate family includes: A spouse, de facto partner, child, parent, grandparent, grandchild, or sibling of the employee; or A child, parent, grandparent, grandchild, or sibling of a spouse or de facto partner of the employee. Compassionate Leave An employee is entitled to 2 days of compassionate leave when a member of the employee s immediate family or a member of the employee s household: Contracts or develops a personal illness that poses a serious threat to their life; or Sustains a personal injury that poses a serious threat to their life; or Dies.

2 An employee may take compassionate leave for a particular occasion if the leave is taken: To spend time with the member of the employee s immediate family or household who has contracted or developed the personal illness, or sustained the personal injury; or After the death of the member of the employee s immediate family or household. An employee may take compassionate leave for a particular occasion as: A single, continuous 2 day period; or 2 separate periods of 1 day each; or Any separate periods to which the employee and their employer agree. If the reason for the absence is a personal illness or injury, the employee may take the compassionate leave for that occasion at any time while the illness or injury persists. Accrual of Personal/Carer s Leave An employee is entitled to accrue an amount of paid personal/carer s leave progressively during the employee s period of service with the employer. Since 1 January 2010, an employee is entitled to 1/26 ( ) of the number of hours worked by the employee for the employer, for the ordinary hours of work. For a full-time employee this would equate to an accrual each week of hours personal/carer s leave for each 38 hours worked [38 x 1/26 ( ) = ]. The NES provides under Division 3 Maximum Weekly Hours, to be 38 plus reasonable additional hours. However, by agreement with award-free employees, such additional hours do not have to form part of ordinary hours for accrual purposes for personal/carer s leave. If you have agreed with the employee that the ordinary hours are 38 and the rate for such ordinary hours, this will cap the cost of the NES entitlements for personal leave. Service and Continuous Service Section 22 of the Fair Work Act 2009 defines service and continuous service as follows: 22 Meanings of service and continuous service General Meaning (1) A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period) that does not count as service because of subsection (2). (2) The following periods do not count as service: a) Any period of unauthorised absence; b) Any period of unpaid leave or unpaid authorised absence, other than:

3 (i) A period of absence under Division 8 of Part 2-2 (which deals with community service leave); or (ii) A period of stand down under Part 3-5, under an enterprise agreement that applies to the employee, or under the employee s contract of employment; or (iii) A period of leave or absence of a kind prescribed by the regulations c) Any other period of a kind prescribed by the regulations. (3) An excluded period does not break a national system employee s continuous service with his or her national system employer, but does not count toward the length of the employee s continuous service. So the period of service excludes any period of unauthorised absence or any period of unpaid leave or unpaid authorised leave. Such periods will include leave without pay or unpaid sick leave. But such absence does not break the continuous service of the employee but does not count towards the employee s length of continuous service. There is an exception to this under Section 22(4) only unauthorised absences reduce the period of service for the purpose of qualifying for leave pursuant to Division 4 Requests for Flexible Work Arrangements and Division 5 Parental Leave and Related Entitlements. Public Holidays Where the period of leave includes a public holiday the employee is not taken to be on personal/carer s leave for that day or part day. Payment for Personal/Carer s Leave and Compassionate Leave Payment for personal leave will now reflect the employee s basic rate of pay. This is defined as follows: 16 Meaning of base rate of pay General Meaning (1) The base rate of pay of a national system employee is the rate of pay payable to the employee for his or her ordinary hours of work, but not including any of the following: a) Incentive-based payments and bonuses; b) Loadings; c) Monetary allowances; d) Overtime or penalty rates;

4 e) Any other separately identifiable amounts. This means that only over-award payments that relate to the ordinary hours of work are included. All other allowances or separately identifiable rates or allowances are excluded. Notice and Evidence Requirements Notice to be given An employee must give his or her employer notice as soon as reasonably practicable to be entitled to personal/carer s leave or compassionate leave and must advise the period or expected period of the leave. Evidence To be entitled to a period of personal/carer s leave or compassionate leave, the employee must give the employer, if required by the employer, evidence that would satisfy a reasonable person that the leave is being taken for the reason of personal/care s leave or compassionate leave. Unpaid Personal/Carer s Leave Unpaid carer s leave An employee (including a casual employee) is entitled to a period of up to 2 days of unpaid carer s leave for each occasion when a member of the employee s immediate family, or household, requires car or support during such a period because of illness, injury or unexpected emergency. However, an employee cannot take unpaid carer s leave in a period when the employee could have taken paid leave. Unpaid carer s leave may be taken in a single, unbroken period of up to 2 days or any separate period to which the employee and his or her employer agree. Clerks Modern Award Casual Carer s Leave The Clerks Modern Award also includes the following provision allowing casual employees to take unpaid carer s leave: 31.2 Personal/Carer s leave for casual employees a) Casual employees are entitled to not be available for work or to leave work to care for a person who is sick and requires care and support or who requires care due to an emergency. b) Such leave is unpaid. A maximum of 48 hours of absence is allowed by right with additional absence by agreement. Unpaid Personal/Carer s Leave Section 130 precludes the accrual of leave entitlements whilst an employee is receiving compensation under the law of the Commonwealth, State or Territory except where this is allowed

5 by a compensation law. The MTA Employment Relations Department has reviewed NSW compensation law and no such obligation appears to apply. Cashing out Personal/Carer s Leave For award-covered employees the NES only allows for cashing out of personal/carer s leave if it is permitted in a modern award. The VMRSR Award and the Clerks Award do not include such a provision. Members who require further assistance utilising this information should contact MTA s Employment Relations Services on (02)