Compassionate leave

Compassionate leave (previously known as bereavement leave) is an entitlement under the National Employment Standards (NES) provided to all employees, including casuals. There are ‘permissible occasions’ which provide an employee with an entitlement to compassionate leave.

How much compassionate leave is available?

Under the NES, employees (other than casuals) are entitled to up to two days of paid compassionate leave per ‘permissible occasion.’ The payment is at the employee’s base rate for any ordinary hours they would have worked during the period.

Casuals are entitled to two days unpaid compassionate leave per occasion.

How can compassionate leave be taken?

Compassionate leave can be taken as:

• a single continuous 2-day period; or
• 2 separate periods of 1 day each; or
• any separate periods as agreed with their employer.

An employee taking compassionate leave must provide notice to their employer as soon as possible. The employer can request evidence about the reason for compassionate leave (for example, a death or funeral notice or statutory declaration).

Is it the same as personal/carer’s leave?

Compassionate leave is sometimes confused with personal/carer’s leave (or sick leave). Compassionate leave does not accrue and will not be subtracted from an employee’s accrued personal/carer’s leave balance as it is available for each ‘permissible occasion.’

This means that employees are entitled to compassionate leave each time they meet the criteria.

What is the meaning of ‘permissible occasion’?

‘Permissible occasion’ is defined as:

• spending time with a person who is a member of an employee’s immediate family or household who
  • contracts or develops a personal illness that poses a serious threat to his or her life; or
  • sustains a personal injury that poses a serious threat to his or her life; or
  • dies; or
• a child is stillborn where the child would have been a member of the employee’s immediate family or household; or
• the employee, or their current spouse or de facto partner has a miscarriage. It will not apply if a former spouse or former de facto partner has a miscarriage.

For example, this means that an employee may take up to two days compassionate leave to be with their brother who is injured in a serious car accident, and then up to another two days compassionate leave if their brother then passes away.

What is the meaning of ‘immediate family’?

The term ‘immediate family’ means a spouse, de facto partner, child, parent, grandparent, grandchild, or sibling of the employee; or a child, parent, grandparent, grandchild or sibling of the employee’s spouse or de facto partner.

De facto partner includes a same sex partner who lives with the employee in a relationship as a couple on a genuine domestic basis.

Apart from where compassionate leave is taken due to a miscarriage, a spouse or de facto partner also includes a former partner.

Are “in-laws” included in the definition of ‘immediate family’?

It is important to establish the relationship between the two people before determining whether compassionate leave is an entitlement.

For example, the term sister-in-law or brother-in-law may refer to several types of relationships.

‘Brother/sister-in-law’ can mean both:

1. a person’s spouse’s sibling i.e., my husband/wife’s sibling. This relationship is included in the definition of ‘immediate family.’
2. a person’s sibling’s spouse i.e., my sibling’s husband/wife. This relationship is not included in the definition of ‘immediate family.’

If an employee requested compassionate leave following the death of their brother-in-law (being his/her spouse’s brother) then they would have an entitlement to compassionate leave under the NES.

On the other hand, if the employee requested compassionate leave following the death of their brother’s spouse, there would be no entitlement to compassionate leave, as this relationship is not recognised as being part of the employee’s immediate family.

Does the person in the immediate family have to be in Australia?

No. Provided that the employee meets the eligibility criteria (the person is someone in their immediate family and it is a permissible occasion) they will be entitled to compassionate leave regardless of where that person lives.

More information

Further information about compassionate leave is available on the Fair Work Ombudsman’s website: https://www.fairwork.gov.au/leave/compassionate-and-bereavement-leave