Sick Leave 101:A quick guide to sick leave under the National Employment Standards (NES)
In Australia, sick leave is covered as a type of “personal leave” in the National Employment Standards. Personal leave also includes carer’s leave and compassionate leave.
Full time and part time employees in Australia have the right to take sick or personal leave under the National Employement Standards or their applicable Award.
The minimum amount of personal leave that a full time employee is entitled to under the NES is 10 days per year.
Remember, this is a minimum, and your employee’s specific award may be higher, so always check the relevant award.
Part time employees will receive this amount, but on a pro rata basis calculated according to the number of hours they work.
Casual workers are not entitled to any personal leave.
Personal leave will continue to accrue during the employee’s time off for annual leave and personal leave.
Pay for sick leave
If an employee takes personal leave (sick leave) they will be entitled to their base rate of pay for the ordinary hours they would have worked. This does not include things like incentive’s, loadings, overtime and the like.
Cash payout for accrued personal leave
Personal leave entitlements accrue. If the employee’s particular Award allows it, you can payout the employee’s accrued personal leave or carer’s leave. This is provided that the employee is left with at least 15 days of available personal/carer’s leave.
You must both agree to the cash payout in writing each time leave is cashed out. An employer must not force an employee to cash out personal/carer’s leave and must pay the full amount that otherwise would have been payable to the employee had the leave been taken.
An employee who is not covered by an award or agreement, is not able to cash out unused personal or carer’s leave.
Sick leave falling on a public holiday
Any personal leave that falls on a public holiday (in the place where the employee is based), will not be classed as personal leave.
An employee must give notice that he or she is taking leave, as soon as practical. The notice may be given after the leave has started. The employee must also advise the employer of the time he or she is expected to be on leave.
The employer is well within it’s rights to require the employee to provide evidence “that would satisfy a reasonable person” that the leave is being taken for a specified reason, for example, illness or injury.
Individual awards or enterprise agreements may contain more detail of the type of evidence required to be given by an employee, in order for personal leave to be paid. As usual, it is always best to refer to your employee’s individual Award.
You can ask that an employee provide a medical certificate for any sick leave taken. It may be more practical to require a certificate where more than 1 day is being taken at a time. This is up to you and should be included in your Workplace Policy.
A doctor’s certificate does not need to specify what the illness is, as this may breach the employee’s privacy – only that the employee is not fit for work.
By Ian MacLeod