Employees of state system employers have a statutory right to take leave for illness or injury or family care (i.e. sick/carer’s leave). These entitlements come from Division 2 of the Minimum Conditions of Employment Act 1993 (the Act).
Fast facts
- 2 weeks, up to 76 hours per year
- accrues from year to year
- employers can ask for proof of illness or injury.
If you are unsure if your business is a state system employer, please call CCI’s Employee Relations Advice Centre on (08) 9365 7660 or email [email protected].
Entitlement to paid leave for illness, injury or family care
An employee, other than a casual employee, is entitled to two weeks paid leave, up to 76 hours per year. Employees may use this entitlement as either paid sick leave or paid carer’s leave.
Leave accrual
Sick and carer’s leave accrues pro rata on a weekly basis and is cumulative from year to year. An employee on a period of paid leave, such as annual leave, will continue to accrue sick/carer’s leave.
An employee does not accrue leave during periods of unpaid leave, including absences while on workers’ compensation.
The amount of sick/carer’s leave an employee accrues per week can be calculated by using the following formula:
Two (maximum number of weeks leave) /
52 (weeks per year)
= 0.03846 (hours of leave accrued per hour)
A full-time employee would therefore accrue:
38 (hours per week) x
0.03846 (leave accrued per hour)
= 1.4615 (hours of leave accrued per week)
Paid sick leave
An employee may use their entitlement as paid sick leave when the employee is unable to work as a result of illness or injury.
An employee may not be entitled to payment if the employee’s illness or injury is attributable to the employee’s serious and wilful misconduct in the course of their employment.
Paid and unpaid carer’s leave
Carer’s leave is leave taken by an employee to provide care and support to a member of the employee’s family or household because of an illness or injury of the member or an unexpected emergency affecting the member.
An employee’s family member includes:
- spouse or defacto spouse
- child, step child or grandchild (including an adult child) of the employee
- parent, step parent, or grandparent of the employee
- sibling of the employee
A member of the employee’s household includes any other person who, at or immediately before the relevant time for assessing the employee’s eligibility to take leave, lived with the employee as a member of the employee’s household.
Though the entitlement to carer’s leave is cumulative from year to year, an employee will only be entitled to take a maximum of 76 hours of paid carer’s leave each year.
Where an employee is not entitled to take a further period of paid carer’s leave, the employee will be able to access two days of unpaid carer’s leave each time a member of the employee’s family or household requires care or support because of an illness or injury or unexpected emergency.
However, an employee will only be entitled to unpaid carer’s leave if the employee has exhausted their entitlement to paid carer’s leave.
Unpaid carer’s leave is also available to casual employees.
Example 1
Mary’s daughter was suffering from the flu and needed to stay home from school. Mary called her employer and advised them that she needed to stay home and care for her daughter. Mary took two days off to aide in her daughter’s recovery. Mary takes her daughter to the doctor and provides a copy of the doctor’s certificate to her employer.
This leave would be taken as paid carer’s leave and would be deducted from Mary’s accrued sick/carer’s leave balance.
Example 2
After caring for her daughter, Mary subsequently catches the flu and is unable to work for a further two days. Mary calls her employer and advises them she is ill and unable to attend work and that she has a doctor’s certificate for two days.
This leave would be taken as paid sick leave and would be deducted from Mary’s accrued sick/carer’s leave balance.
Notice and evidence requirements
To be entitled to sick or carer’s leave, the employee must provide evidence of the:
- personal illness/injury
- the illness or injury of the member of their family or household for whom they took the leave
- unexpected emergency affecting the member of their family or household for whom they took the leave.
The Act necessitates that the evidence would satisfy a reasonable person of the entitlement. Evidence that would satisfy a reasonable person will depend on the particular circumstances of each claim for leave.
Frequently asked questions
Are employees entitled to unpaid carer’s leave if they still have leave remaining?
An employee is only eligible for unpaid carer’s leave if they are:
- a casual employee
- the employee has used up to 76 hours of their sick/carer’s leave entitlement as carer’s leave per year.
Do employers have to pay out sick leave on termination?
Under the Act, employers are not required to pay out any balance of sick leave or carer’s leave when an employee ceases employment.
If the employee is covered by an award or agreement, this may contain additional provisions that require the paying out of sick or carer’s leave on termination.
Can an employer require that an employee provide a medical certificate?
An employee must provide evidence that would satisfy a reasonable person. In most cases, a medical certificate or statutory declaration would generally constitute forms of evidence that would satisfy a reasonable person.
There are situations, however, depending on the circumstances, where other evidence may suffice. For example, if an employee reports they have break their arm and subsequently comes in with a cast on their arm, this may constitute evidence that would satisfy a reasonable person.
How do I calculate sick/carer’s leave for a part-time employee?
Using the formula provided earlier, a part-time employee working 15 hours per week would accrue:
15 (hours per week) x
0.03846 (Leave accrued per hour)
= 0.5769 (hours of leave accrued per week)
Please contact the CCI’s Employee Relations Advice Centre on (08) 9365 7660 or or email [email protected] for further information.
