Can an employee use carer’s leave if they have an ill family member overseas and they want to travel to look after them?
Under the Fair Work Act 2009 (the FW Act), an employee may take paid carer’s leave if the leave is taken to provide care or support to a member of the employee’s immediate family or household, who requires care or support because of a personal illness, or personal injury, affecting the member or an unexpected emergency affecting the member.
Carer’s leave falls under the personal/carer’s leave entitlement, and full-time employees accrue 10 days of paid personal/carer’s leave for each year of service.
The entitlement to carer’s leave applies to a member of the employee’s household or immediate family.
Immediate family is defined as a spouse, de facto partner, child, parent, grandparent, grandchild or sibling of the employee, or a child, parent, grandparent, grandchild or sibling of a spouse or de facto partner of the employee.
The FW Act does not restrict the entitlement to carer’s leave to family only located in Australia. Therefore, if an overseas immediate family member of an employee (or their spouse) became ill and the employee requested leave to provide care or support to that person, then they are entitled to apply for and be paid carer’s leave.
The employee may also utilise other forms of paid leave such as annual leave, or long service leave if applicable, if they require an extended period of leave and do not have enough carer’s leave accrued.
The employee may access unpaid carer’s leave if they have exhausted their entitlement to paid personal/carer’s leave.
An employee is entitled to 2 days of unpaid carer’s leave for each permissible occasion when a member of the employee’s immediate family or household requires care or support because of a personal illness, personal injury or an unexpected emergency affecting them.
Compassionate leave provides an employee with 2 days of leave for each permissible occasion when a family of the employee’s immediate family or household 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.
Again, this entitlement is not confined to family living only in Australia. Therefore, an employee could access compassionate leave for the death of an immediate family member living overseas.
In order to access personal/carer’s leave, unpaid carer’s leave, or compassionate leave the employee must provide the employer with notice of the taking of the leave, as soon as practicable which may be a time after the leave has started and advise the employer of the period or expected period of the leave.
An employer can require the employee to provide them with evidence that would satisfy a reasonable person that the leave is being taken for a reason or permissible occasion set out under the FW Act. Evidence could be a medical certificate for carer’s leave, or a statutory declaration or death notice for example.
If the employee does not comply with the requirement to provide evidence, then they will not be entitled to take the leave.
For further advice about personal/carer's leave please contact us or call the Workplace Advice Line on 1300 55 66 77.
