An employee can take 2 days of compassionate leave each time a member of their immediate family or household dies. The entitlement comes from the National Employment Standards and covers every employee, casuals included; it is also called bereavement leave. Full-time and part-time employees are paid for those days, and casual employees take them unpaid.
General informationThis page describes the national minimum, not anyone’s own workplace. The Fair Work Ombudsman’s page on compassionate and bereavement leave is the official place to check, and an award or agreement may give more than the minimum.
When it can be taken
The Fair Work Ombudsman sets out four situations in which an employee can take compassionate leave.
- A member of their immediate family or household dies.
- A member of their immediate family or household develops or contracts an illness or injury that threatens their life. The 2 days are then for spending time with that person.
- A baby in their immediate family or household is stillborn. Fair Work describes a stillbirth as a baby who weighed at least 400 grams, or reached at least 20 weeks’ gestation, and has not breathed or had a heartbeat since being delivered.
- The employee has a miscarriage, or their current spouse or de facto partner does. Fair Work treats a miscarriage as a pregnancy lost of its own accord, with the embryo or foetus lost before the 20th week.
Among the things people might need to do in the first days after a death, the NSW Government lists thinking about time off work with compassionate or bereavement leave.
Who counts as immediate family
Fair Work’s list of an employee’s immediate family includes:
- a spouse or a former spouse, and a de facto partner or a former de facto partner;
- a child, a parent, a grandparent, a grandchild and a sibling;
- the immediate family of the employee’s spouse or de facto partner, current or former;
- step-relations, such as a step-parent or step-child, and adoptive relations.
A relative outside that list, such as a cousin, an aunt or an uncle, still counts if they were a member of the employee’s household. Otherwise the leave is available for them only if the employer agrees.
Two days, and how they can be split
The 2 days apply on each occasion, so a second death in the family later is a new entitlement. The employee can take them in one of three ways:
as 2 days in a row;
as two single days taken separately;
in other separate periods, if the employer agrees.
Compassionate leave does not build up over time, and it is separate from sick and carer’s leave, so it does not draw down that balance. It can be taken whenever it is needed. An employee who is already on another kind of leave, such as annual leave, when the need arises can take compassionate leave in its place.
An exampleA part-time employee is part-way through a week of annual leave when her grandfather dies. On Fair Work’s description of the rules, she can switch 2 of those days to compassionate leave, and she can take them as two separate single days rather than together. Because she is part-time, her employer pays them at her base rate for the ordinary hours she would have worked.
An illustration of the published rules, not a ruling on any real workplace.
Paid or unpaid
| Question | Full-time and part-time | Casual |
|---|---|---|
| Entitled to the leave? | Yes, 2 days each time | Yes, 2 days each time |
| Paid? | Yes, at the base pay rate for the ordinary hours they would have worked | No, the leave is unpaid |
| Left out of the pay | Bonuses and other incentive-based payments, loadings, monetary allowances, overtime and penalty rates | Not applicable, as no pay is owed under the minimum |
| Can it be cashed out? | No | No |
Casual employees are also entitled to unpaid carer’s leave, a separate entitlement for caring for or supporting a family or household member who is ill, injured or affected by an unexpected emergency.
Telling the employer, and evidence
An employee taking compassionate leave has to let the employer know as soon as they can, which may be after the leave has begun. The notice gives the length of the leave, or its expected length, and its dates.
An employer can ask for evidence of the reason, and the request has to be reasonable. Fair Work gives a death or funeral notice, or a statutory declaration, as examples of evidence. Its fact sheet says there are no strict rules about the type of evidence, though an award or agreement may set terms for it. If the notice or the evidence asked for is not given, the employee may not get the leave, or may not be paid for it.
When an award or agreement says more
The National Employment Standards are part of the Fair Work Act and apply to employees covered by the national workplace relations system. Awards, enterprise agreements and other registered agreements can add to the compassionate leave they set. An award, agreement, employment contract or workplace policy cannot give less than the standards.
So the two days are a floor. The employee’s award or agreement, and the Fair Work Ombudsman, are where the full answer for a particular job sits.
The days after a death often bring a call to Services Australia as well: Services Australia after a death covers the payments. For the weeks after, there is grief, and where support starts.