Compassionate Leave Facts – What are the rules?

Public news

When an employee is required to take time off for themselves or to spend time with other members of their family due to a tragic family event, they may be entitled to compassionate leave (also referred to as bereavement leave).

The circumstance in which an employee may take compassionate leave is when a member of the employee’s immediate family or household:

  • Dies
  • Contracts a life-threatening illness or injury

When it comes to determining whether the person is included in the employee’s immediate family section 12 of the Fair Work Act defines this to be any of the following people:

  • spouse or former spouse;
  • de facto partner or former de facto partner;
  • child;
  • parent;
  • grandparent;
  • grandchild;
  • sibling; or a
  • child, parent, grandparent, grandchild or sibling of the employee's spouse or de facto partner (or former spouse or de facto partner).

All of the above definitions also extend to step-relations and adoptive relations.

If the member is any of the above relations or a member of the employee’s household then the employee is entitled to compassionate leave. A cousin, aunt or uncle however will only be included as of right provided that they are a member of the employee’s household, meaning that they live with them. If a cousin, aunt or uncle isn’t a member of the employee’s household then it is up to the discretion of the employer as to whether or not they grant compassionate leave.

Compassionate Leave is distinct from Personal/Carer’s Leave and as such an employer should not be taking time from this balance when an employee is on compassionate leave. Instead this leave needs to be treated as a separate and distinct form of leave. All employees, including casuals, are entitled to compassionate leave.

When an employee is entitled to compassionate leave they receive 2 days per event and these days can either be taken in a continuous 2 day period or in 2 separate periods of 1 day each (or any other separate period that the employee and employer agree to).

Unlike Annual and Personal/Carer’s Leave, Compassionate leave is not something that is accumulated progressively by employees and carries over year from year, but is rather a form of leave that an employee may use whenever an appropriate circumstance arises.

When a permanent employee takes compassionate leave they are entitled to be paid at their base rate of pay (e.g. excludes overtime, loadings etc.) for the ordinary hours they would have worked that day, whilst a casual receives unpaid compassionate leave. An employee has to give the employer notice of their intention to take the leave as soon as possible and an employer may request evidence for the basis of the leave being taken (e.g. a funeral notice). The request for evidence however must be reasonable.

If you would like any assistance or further information in regards to compassionate leave, please contact the Workplace Relations team on 8291 2000 or via email by clicking here.