Sick Leave and Personal Leave

If you are a full-time employee (either permanent or on a fixed term contract) you are entitled to take at least 10 days of personal/carer’s leave each year. Personal/carer’s leave is commonly called “sick leave”.

According to section 97 of the Fair Work Act 2009 you’re entitled to take this leave if you have personal injury or illness and this includes stress and pregnancy related illnesses. You are also entitled to take this leave to support a member of your immediate family who is sick or has an unexpected emergency. This minimum entitlement is also set out in the National Employment Standards.

So what happens if your employer or your employment contract states that you cannot accrue untaken personal/carer’s leave in excess of a certain number of days? For example, untaken personal/carer’s leave is capped at 15 days or in other words no further personal/carer’s leave will accrue in excess of 15 days.

According to Fair Work Australia an employer cannot cap the accrual of your untaken personal/carer’s leave and they also cannot attempt to override the accrual of this entitlement by the terms of your employment contract.

In that regard, full time and part time employees accumulate personal/carer’s leave during a year of work. It builds up from an employee’s first day of work and is based on the number of hours they work. The balance at the end of each year carries over to the next year and this is explicitly stated at section 96(2) of the Fair Work Act 2009 as follows:

• An employee’s entitlement to paid personal/carer’s leave accrues progressively during a year of service according to the employee’s ordinary hours of work, and accumulates from year to year.

Therefore, if your employment contract or your employer informs you that your untaken personal/carer’s leave will be capped and only accrue to a maximum amount of days you should consider seeking advice from an employment lawyer and/or contacting the Fair Work Ombudsman.