Walking to work this morning (27 January 2012) this writer was struck at the lack of fellow human beings also making their way to their various places of employment, which was a huge difference from a normal Friday. For some, the higher than normal rate of absenteeism wouldn’t come as much of a surprise because Australia Day as we all know, happened to fall on a Thursday, which of course is tantalisingly close to the weekend and as a consequence many Australians have turned the celebrations for our nation into one, long weekend.
Now many people may have read numerous articles over the past few days in regards to the great collective national sick day which was projected (at the time of writing) and how this practice is generally discouraged. However, with that being said, the lack of pedestrians this morning would suggest that many people may have indeed taken a ‘sick’ day, but on the other hand, we shouldn’t tar all workers with the same brush, and many employees will have quite wisely requested, and were granted leave by their employers as well. So with all this talk about leave, what are the actual laws in regards to sick, holiday, and other types of leave?
Before delving further, we should point out that for the sake of convenience the majority of this piece will be outlining the leave provisions under the Fair Work Act (the FWA) and the leave entitlements of national system employees. For non-national system employees, the laws will vary depending on the relevant legislation and industrial award instruments.
Which employees are entitled to leave under the Fair Work Act?
Leave entitlements under the FWA are only applicable to national system employers and their employees, which generally speaking refers to employees from most private organisations, Commonwealth agencies and Territory employers, as outlined in s 14(1) of the FWA.
Additionally, under the ss 30D and 30N provisions the definition of a national system employer also covers any employer in a referring State, to the extent that they employ a worker who falls within a reference power.
Readers who are State employees working in public sector agencies from New South Wales, Queensland, South Australia and Tasmania, will generally be subject to the industrial instruments at a State level, while in contrast, the state of Victoria will have the majority of its employees fall under the federal system.
Meanwhile, local council workers in New South Wales, Queensland and South Australia are excluded from the provisions of the FWA.
Finally, in Western Australia the leave provisions of the FWA only covers workers who are employed by a constitutional corporation, which includes trading and financial corporations, corporations formed outside of Australia, and federal government agencies.
We should reemphasise that the FWA provisions are only applicable to workers who are considered as employees, and as a consequence, independent contractors and unpaid volunteers may be excluded from leave entitlements.
What are the laws in regards to sick leave (and other types of leave)?
Ah, now we’re heading into the crux of the piece which is of course the laws regarding the type of leave that is found in Division 7 of Part 2-2 of the FWA, allowing for national system employees to take paid personal leave under the following circumstances:
• the employee is not fit for work because of illness or injury which has an effect on the employee;
• the employee needs to provide care or support for an immediate family member, or a family member of the household due to illness, injury or an unexpected emergency;
• unpaid carer’s leave; and
• compassionate leave.
Under the provisions of the FWA, an employee, who is not a casual, is entitled to 10 days of paid personal and carer’s leave per year, which can accumulate on a yearly basis.
Conversely, if an employee has exhausted all of their leave entitlements, or the employee is a casual, under ss 102-103 an employee who is entitled to such leave, can take two days’ of unpaid carer’s leave whenever such leave is needed. However, and this is the important part, the employee can only take leave in instances where they are required to care for a family member, not because the employee is sick or injured.
In regards to compassionate leave under the provisions of ss 104-106, an employee can spend up to two days with a family member or a member of the household, who has sustained life-threatening injury or illness, or alternatively, leave is required on compassionate grounds due to the death of a family member or a member of the household.
An employee must be paid their base rate if leave is taken on compassionate grounds, while for casual employees, compassionate leave will be regarded as unpaid leave.
What are the notice and evidence requirements for sick leave? (And other types of leave)
If an employee takes personal, unpaid or compassionate leave, then under s 109(1)(2) the employee must inform the employer as soon as it is practicable of the need to take leave, and must also advise the employer of how much leave is to be taken, and the expected amount of leave that is to be taken. And yes, an employee can give notice after the period of personal leave has begun.
Any employee who has given notice of personal leave to an employer under Division 7 of the FWA, must provide evidence to an employer if required to do so, and the evidence must be the type which would satisfy a reasonable person under s 109(3).
Finally, under s 109(4) and (5), an employee is not entitled to take personal leave unless they comply with any modern award and enterprise agreement requirements if evidence is mandatory, if an employee chooses to take leave under the Division.
