Can carer’s leave be taken in advance?

Can carer’s leave be taken in advance?

By Paul Munro on 31 July 2018 Is an employee entitled to be paid carer's leave in advance?

This question was recently sent to our Ask an Expert service.

Q Our company recently employed an administrative employee. She has been employed for about one month but has been absent for two days due to her child’s illness. While the employee has provided reasonable evidence, she has been advised there is insufficient accrual of leave to cover the two working days. She has asked whether carer’s leave could be paid in advance.

Is this possible under the paid personal/carer’s leave provisions under the National Employment Standards? Does the employee have to complete a minimum period of service to access accrued paid personal/carer’s leave?
 
A Under the Fair Work Act (s96(2)), an employee’s entitlement to paid personal/carer’s leave accrues progressively during a year of service according to the employee’s ordinary hours of work. The NES does not prescribe a minimum period of employment before an entitlement to personal/carer’s leave applies. Employees do not need to wait until 12 months' service has been completed before being able to take their accrued paid personal/carer’s leave.

In effect, the Fair Work Act provides that an employee will accrue the equivalent of 10 days paid personal/carer’s leave over a 12 month period of service. Leave entitlement would be calculated by reference to the employee’s relevant period of service and ordinary hours of work.

An employee with one month's service with the employer would have accrued about 0.8333 days paid leave (1/12th of 10 days). In this case, the employee is entitled to unpaid carer’s leave (1.1667 days) for the balance of the absence.
 
The applicable modern award (Clerks – Private Sector Award) does not contain terms which allow paid personal/carer’s leave to be taken in advance of accrual.
 
Leave accrues on the basis of the employee’s ordinary hours, which is calculated on actual time in service not completed months or weeks of service.
 
The Fair Work Act does not specifically provide for taking paid personal/carer’s leave in advance, nor is it mentioned that a modern award or an enterprise agreement can contain such a term.

Consequently, it is presumed paid personal/carer’s leave cannot be taken in advance of accrual of the entitlement.
 
The amount of accrued paid carer’s leave that can be taken each year is not capped. An employee must use all of their accrued paid personal/carer’s leave before accessing unpaid carer’s leave.  

Annual leave in advance

While no provision exists to provide paid personal/carer’s leave in advance, a modern award may contain terms which allow paid annual leave to be taken in advance of accrued entitlement.

The bottom line: The Fair Work Act does not specifically provide for taking paid personal/carer’s leave in advance, nor is it mentioned that a modern award or an enterprise agreement can contain such a term.

Consequently, it is presumed that if paid personal/carer’s leave is provided in advance of an entitlement it cannot be recovered from any payments due if the employee’s employment is terminated.
 

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