Personal/carer's leave & WorkChoices Bill

Analysis

Personal/carer's leave & WorkChoices Bill

11/11/05 The 'WorkChoices' Bill recently introduced to federal parliament provides guaranteed conditions regarding paid personal/carer's leave.

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11/11/05

The 'WorkChoices' Bill recently introduced to federal parliament provides guaranteed conditions regarding paid personal/carer's leave. This article summarises these detailed minimum conditions, which will apply when the Bill becomes law.

Previous articles in WorkplaceInfo have summarised the impact of the proposed workplace relations legislation on long service leave and annual leave.
 
Overview

As with the proposed guaranteed conditions governing annual leave, paid personal (sick) leave will apply to all employees throughout Australia, other than casual employees, whose employer is a constitutional corporation, where proper notice and documentation is produced by the employee verifying the reason for the absence.

Consequently, the guaranteed federal conditions will override any conditions in an industrial instrument (award or agreement), whether federal or state, except where the personal/carer's leave provision in the relevant instrument is 'more generous' than the federal guaranteed standard.

The proposed legislation also provides a guarantee for unpaid carer's leave, specifying notice and documentation requirements which are applicable to all employees including casual employees.

Definitions

'Personal/carer's leave' is defined as paid leave (drawing on sick leave) taken by the employee because of a personal illness, or injury, of the employee; or paid or unpaid carer's leave taken by an employee to provide care and support to a member of the employee's immediate family, or a member of the employee's household, who requires care and support because of a personal illness, or injury, of the member; or an unexpected emergency affecting the member.

The terms, 'child', 'de facto spouse', and 'immediate family' are relevant to the circumstances in which carer's leave and compassionate leave may be taken. They are intended to cover extended and blended families, including de facto marriages, step-relationships, and adoptive relationships.

Immediate family: This term is defined as the employee's spouse (including de facto spouse, former spouse, or former de facto spouses), child, parent, grandparent, grandchild, or sibling. This includes the employee's current and former spouse.

De facto spouse: This term is defined as a person of the opposite sex to the employee who lives with the employee on a genuine domestic basis as the employee's husband or wife, without being legally married.

Child: This term refers to the following: an adopted child; a stepchild; an ex-nuptial child; or an adult child.

Continuous service: The expression 'continuous service' throughout the Bill refers to the employee's accrual based on the nominal hours worked over each four week period of continuous service with the employer. 'Nominal hours worked' means the sum of the number of hours that the employee worked (excluding periods of unauthorised leave and any reasonable additional hours that the employee was required to work, and did work) and the number of hours of paid authorised leave taken by the employee during a particular period.

Paid personal (sick) leave

An employee is entitled to paid personal (sick) leave which is accrued at the rate of 1/26 of the number of nominal hours worked by the employee for each completed 4 week period of continuous service with the employer. This would mean that an employee whose nominal hours worked each week over a 12 month period is 38 hours is entitled to accrue 76 hours paid personal/carer's leave (ie. 2 weeks paid leave) over the period. Paid personal leave accrues on a pro rata basis.

Accrual of leave: Each month, an employer must credit an employee the amount (if any) of paid personal/carer's leave accrued by the employee since the last credited to the employee.

For example, the employer may credit leave on the first day of each month, or on the first Monday of every month (except for public holidays, when the leave will be credited the next business day). If an employee's working hours were variable from month to month, the amount of accrued leave credited each month would vary accordingly. Paid personal/carer's leave is cumulative.

Notice & evidence requirements: To be entitled to sick leave an employee must notify the employer, as soon as reasonably practicable, unless there are circumstances beyond the employee's control.

Where an employer requires an employee to provide a medical certificate when claiming payment for sick leave, the medical certificate must include a statement to the effect that, in the medical practitioner's opinion, the employee was, is, or will be unfit for work during the period because of a personal illness or injury.

In the case of an employee's claim for paid carer's leave and where the employer requires the employee to produce the required document, the following applies:

  • a medical certificate from a medical practitioner is required if the care and support provided by the employee is because of the member's personal illness or injury;

  • a statutory declaration made by the employee if the care and support is required because of an unexpected emergency affecting the member.

As with sick leave, the required document must be given to the employer as soon as reasonably practicable. Neither the notice or document requirements apply to an employee who could not comply because of circumstances beyond the employee's control.

Payment for personal (sick) leave: The employer must pay the employee an amount that is equivalent to what the employee would reasonably have expected to receive had the employee worked during the period of leave.

An employee is not entitled to take paid sick leave to cover an absence from work because of personal illness or injury if the employee is receiving workers' compensation payments.

Annual limit: The proposed legislation puts an annual cap on an employee's entitlement to take time if, during the previous 12 months, the employee has already taken paid carer's leave of more than 1/26 of the nominal hours worked.

This means an employee would be entitled to use up to 10 days personal leave each year for the purposes of caring for members of the employee's immediate family or household who are sick and require care and support, or who require care due to an unexpected emergency. The remainder of the employee's accrued personal leave entitlement would be reserved to be taken as paid sick leave as the need arises.

Compassionate leave

The proposed legislation provides a guarantee of paid compassionate leave. An employee, other than a casual employee, would be entitled to take two days paid leave to spend time with a critically ill, injured, or dying person who is a member of the employee's immediate family or household.

An employee may take up to two days compassionate leave upon the death of a member of their immediate family or household and such leave does not have to be taken immediately when the illness, injury or death occurs. The employer must pay the employee an amount equivalent to what the employee would reasonably have expected to receive had the employee worked during that period of leave.

Unpaid carer's leave

The Bill would guarantee that all employees (including casual employees) are entitled to two days of unpaid carer's leave on each occasion that a member of the employee's immediate family or household requires care and support due to being ill, injured, or affected by an unexpected emergency.

An employee may take the leave in one continuous period, or in distinctly separate periods as agreed between the employer and employee. For example, an employer and an employee could agree that the employee will take unpaid carer's leave as four consecutive half-days, so that the employee could share caring duties with someone else.

An employee can only access an entitlement to unpaid carer's leave where the employee has exhausted their accumulated paid carer's leave or any other authorised leave, eg. annual leave, for caring purposes.

Current awards & agreements and guaranteed minimum

The proposed personal/carer's leave provisions are a guaranteed minimum standard applicable to all eligible employees throughout Australia, therefore, an employee employed under a federal award or agreement, a state award or agreement, or individual contract of employment which provides more generous provisions for personal/carer's leave will continue to receive the more generous provisions provided by the relevant industrial instrument or contract of employment provision.

Related

Carers' leave too dear: ACCI

Work and family test case - flexible parental leave by agreement
 

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