Compassionate Leave – Know Your Rights in Australia

Understanding Compassionate Leave in Australia

Compassionate leave is a critical workplace entitlement that allows employees to take time off in the event of a family emergency, life-threatening illness, injury, or the passing of an immediate family or household member. Under the Fair Work Act 2009, compassionate leave is a National Employment Standard (NES) that applies to all employees covered by the national workplace relations system.

This guide will help you understand compassionate leave entitlements, eligibility, employer responsibilities, and employee rights according to Australian employment laws.

What Is Compassionate Leave?

Definition and Purpose

Compassionate leave is designed to allow employees time off work to grieve, provide care, or make funeral arrangements when an immediate family or household member is affected by:

• A life-threatening illness or injury
• The death of a close relative
• A stillbirth or miscarriage affecting the employee, their spouse, or de facto partner

This type of leave ensures employees can manage personal and family emergencies without fear of losing their jobs or facing penalties.

Distinction Between Compassionate Leave and Other Leave Types

• Compassionate Leave: Specifically for bereavement, life-threatening illness, or injury affecting a close family or household member.
• Sick and Carer's Leave (Personal Leave): This leave is used when the employee is personally ill or injured or needs to care for a sick family member.
• Annual Leave: General paid time off that employees can use at their discretion.
• Unpaid Carer's Leave: This leave is provided when paid personal leave is unavailable, but the employee needs to care for a family member.

Eligibility Criteria for Compassionate Leave

Who Qualifies as Immediate Family or Household Members?

According to the Fair Work Act 2009, immediate family members include:

• Spouse or former spouse
• De facto partner or former de facto partner
• Child (biological, adopted, foster, or stepchild)
• Parent or step-parent
• Grandparent or step-grandparent
• Grandchild
• Sibling (including step and half-siblings)
• The same relatives of the employee’s spouse or de facto partner

A household member is anyone who lives with the employee in a domestic arrangement, such as a housemate or non-immediate relative.

Scenarios That Warrant Taking Compassionate Leave

Compassionate leave applies in the following situations:

• A close relative is diagnosed with a life-threatening illness and requires immediate care.
• The death of an immediate family or household member (including time for funeral arrangements).
• A stillbirth or miscarriage is experienced by the employee, their spouse, or de facto partner.

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Entitlements and Duration

How Many Days of Compassionate Leave Are Employees Entitled To?

Under the National Employment Standards (NES), employees are entitled to:

• Two (2) days of compassionate leave per occasion.
• The leave can be taken as follows:
  • A single continuous 2-day period.
  • Two separate 1-day periods.
  • Any agreed-upon split between the employee and employer.

Important Notes:

• Compassionate leave is not deducted from personal, sick, or annual leave balances.
• It does not accumulate from year to year.
• Employees can take compassionate leave at any time when needed.
• Employees who are already on annual leave can switch to compassionate leave instead.

Is Compassionate Leave Paid or Unpaid?

• Full-time and part-time employees receive paid compassionate leave at their base pay rate for their ordinary hours.
• Casual employees are entitled to unpaid compassionate leave.

The base rate of pay excludes the following:

• Bonuses or incentives
• Penalty rates
• Overtime or shift loadings
• Other additional payments

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Procedures for Taking Compassionate Leave

How to Apply for Compassionate Leave

To apply for compassionate leave, employees must:

1. Notify their employer immediately (after the leave has begun).
2. Provide the expected duration of their leave.
3. Submit evidence if requested by the employer (e.g., medical certificate, death certificate, or funeral notice).

Can Compassionate Leave Be Taken in Conjunction with Other Leave Types?

Employees may combine compassionate leave with the following:

• Annual leave – if they need more than 2 days off.
• Sick and carer’s leave – if caring for a terminally ill relative.

Employers cannot deduct compassionate leave from an employee’s personal or annual leave balance, as it is a separate entitlement.

What Evidence Can Employers Request?

Employers can request reasonable evidence to confirm the reason for the leave. Acceptable forms of evidence may include:

• Death certificate
• Funeral notice
• Medical certificate confirming a life-threatening illness or injury
• Statutory declaration

Employees who fail to provide reasonable evidence may not be entitled to compassionate leave.

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Employer Obligations and Employee Rights

What Are Employers' Responsibilities Regarding Compassionate Leave?

Employers must:

• Provide the minimum leave entitlement outlined in the Fair Work Act 2009.
• Process compassionate leave requests without discrimination.
• Maintain confidentiality regarding the employee’s circumstances.
• Ensure compliance with the National Employment Standards (NES).

What Happens If an Employer Denies Compassionate Leave?

Employers must comply with the Fair Work Act 2009 and provide compassionate leave entitlements. If an employer unlawfully denies an employee’s request:

1. Discuss the issue with HR – Many disputes can be resolved internally.
2. Refer to company policies – Some employers offer additional bereavement leave benefits.
3. Seek assistance from the Fair Work Ombudsman – Employees can lodge a complaint via Fair Work Australia.

Employees cannot be terminated or penalized for legitimately using compassionate leave.

Tools and Resources for Employees

For more information about compassionate leave and workplace rights, employees can refer to:

• Fair Work Ombudsman – Compassionate Leave
• Fair Work Infoline: 13 13 94
• National Relay Service (for speech or hearing assistance): 1300 555 727
• Translating and Interpreting Service (for language help): 13 14 50

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Compassionate Leave in Australia: Frequently Asked Questions (FAQs)

Below are FAQs addressing real-world scenarios to help navigate compassionate leave entitlements effectively.

1. Can an Employer Deny Compassionate Leave If It’s Not “Immediate Family”?

Scenario:

An employee requests compassionate leave for the death of a close friend or an uncle/aunt who is not considered “immediate family” under the Fair Work Act.

Answer:

By law, compassionate leave applies only to immediate family members and household members (spouse, parents, children, siblings, etc.). However:

• If the deceased or ill person lived with the employee, they may qualify as a household member, making the employee eligible for leave.
• The employer may grant discretionary paid or unpaid leave if the person does not meet the strict NES definition.
• Some enterprise agreements or company policies allow compassionate leave for extended family members or close friends.

Employees should check workplace policies or negotiate with HR for flexibility in such cases.

2. Can Compassionate Leave Be Taken for a Funeral Held Overseas?

Scenario:

An employee’s immediate family member passes away abroad, and the funeral is scheduled overseas. The employee wants to travel but is concerned about the 2-day limit.

Answer:

• Compassionate leave covers time to grieve, attend funerals, or provide care. However, it is limited to two days per occasion under the NES.
• Employees needing extended leave may:
  • Request additional unpaid leave.
  • Use annual leave or long service leave (if available).
  • Request flexible work arrangements to work remotely before/after the funeral.
• Employers cannot refuse the statutory 2-day leave but may approve additional leave at their discretion.

3. What If an Employee Needs Additional Time for Mourning or Family Responsibilities?

Scenario:

An employee loses a spouse or parent and finds two days insufficient to handle the emotional toll, estate matters, and family responsibilities.

Answer:

While NES guarantees only 2 days per occasion, employees can:

• Request annual leave or long service leave if they need additional paid time off.
• Negotiate unpaid leave if paid leave is unavailable.
• Some company policies or awards provide extended bereavement leave—check with HR.

Employers are encouraged to accommodate reasonable requests, especially for significant losses like spouses or parents.

4. Can an Employee Take Compassionate Leave Before the Death of a Family Member?

Scenario:

An employee's parent is in palliative care due to a terminal illness. They want time off before the passing to provide care and be present.

Answer:

Yes, compassionate leave is available for life-threatening illness or injury, not just death. The employee does not have to wait until their loved one passes away to apply for leave.

Employers must approve the request if:

• The family member is diagnosed with a life-threatening condition.
• The leave request is supported by reasonable evidence (e.g., a medical certificate from a doctor or hospital).

If more than 2 days are required, the employee can:

• Use carer’s leave to provide ongoing support.
• Request annual leave or unpaid leave for additional time.

5. Can Compassionate Leave Be Taken Intermittently Over a Period of Time?

Scenario:

An employee’s grandparent is terminally ill, and the employee wants to visit them multiple times over a few weeksinstead of taking a continuous 2-day leave.

Answer:

Yes, the NES allows flexible use of compassionate leave:

• The employee can take 2 separate 1-day periods instead of consecutive days.
• If the employer agrees, leave can be split into smaller portions based on the employee’s needs.

If additional time is required, alternative leave options (e.g., carer’s leave, annual leave) can be used.

6. Can Compassionate Leave Be Used If a Family Member’s Funeral Is Delayed?

Scenario:

An employee’s parent passes away, but the funeral is delayed by three weeks due to legal or religious reasons. The employee wants to take compassionate leave later instead of immediately.

Answer:

The Fair Work Act does not specify a time limit for taking compassionate leave after a death. The leave can be taken at any time when needed, provided:

• It is for grieving, making funeral arrangements, or spending time with family.
• The employer is notified as soon as practicable.

If an employer insists leave must be taken immediately after death, the employee can dispute this through HR or the Fair Work Ombudsman.

7. Can an Employer Request Multiple Forms of Evidence for Compassionate Leave?

Scenario:

An employee provides a funeral notice for their grandparent’s passing, but the employer also demands a death certificate and statutory declaration.

Answer:

Under the Fair Work Act, employers can request reasonable evidence, but it must:

• Be relevant to the situation (e.g., death notice, obituary, or medical certificate).
• Not place an unnecessary burden on the employee.
• Be something that a reasonable person would accept as proof.

Employers cannot unreasonably delay approval by requesting excessive or unnecessary documentation. If an employee believes their employer’s request is unfair, they can raise a complaint with Fair Work Australia.

8. Can Compassionate Leave Be Taken If the Employee Has Already Resigned?

Scenario:

An employee submits their resignation notice, but before their last working day, a close family member passes away. Can they still take compassionate leave?

Answer:

Yes. Employees remain entitled to compassionate leave until their final working day. The employer must approve the leave, even if:

• The employee has already resigned.
• They are serving a notice period.

However, if an employee is on gardening leave or has left the company, they are no longer entitled to compassionate leave.

9. Can Compassionate Leave Be Taken During a Probation Period?

Scenario:

An employee is in their third week of probation when their mother passes away. They are concerned about taking leave during probation.

Answer:

Yes, compassionate leave applies to all employees, including those on:

• Probation periods
• Short-term contracts
• Newly started roles

The employer cannot deny leave based on probation status, but:

• The leave is still limited to 2 days.
• The employer cannot terminate the employee for taking lawful compassionate leave.

If termination occurs, the employee may have grounds for unfair dismissal and can seek advice from Fair Work Australia.

10. Can an Employee Be Terminated for Taking Compassionate Leave?

Scenario:

An employee requests compassionate leave for a family emergency, and shortly after, the employer terminates their contract citing performance reasons.

Answer:

No. Dismissing an employee for taking compassionate leave is unlawful. Employees have legal protections, and termination for this reason may:

• Violate general workplace protections under the Fair Work Act.
• Be grounds for an unfair dismissal claim.

Employees facing this situation should:

• Request written reasons for termination.
• Lodge a complaint with the Fair Work Ombudsman.

Final Thoughts

Compassionate leave is a critical workplace right, and understanding its nuances helps employees and employers navigate difficult situations fairly. While basic entitlements are clear, real-world situations often require flexibility, negotiation, and awareness of legal protections.

For further guidance, consult Fair Work Australia or your company’s HR department.