Personal/Carer's Leave Test Case [1995]

Updated time

Last updated

10 January 2017

(1995) Print M6700, O Connor J, President, Ross VP, Marsh SDP, McDonald C, Holmes C, 28 November 1995


This matter dealt with the care responsibilities which an employee often has in relation to members of their family.

In essence, the Australian Industrial Relations Commission formed the view that:

'... the needs of workers with family responsibilities can best be met by the introduction of increased flexibility in a range of award provisions combined with the aggregation and extension of existing leave entitlements.' [p.6]

To meet that goal, the Commission adopted a two stage package. Stage 1 included:

extending access to sick leave so that employees could use their sick leave entitlement to provide care or support for a member of their family who is ill. [p.6]

Following Stage 1, the Commission noted that:

a growing number of enterprise agreements contain provisions which allow employees to take leave to provide care and support for a member of the employee’s family who is ill and that such leave is usually subject to some form of cap. [p.10]

Stage 2 covered the quantum of sick leave available for use as family leave, the definition of ‘family member’, and incidental matters. Stage 2 would allow employees:

to access an aggregated entitlement, made up of existing award entitlements to sick leave and bereavement/compassionate leave, in order to provide care or support for a member of the employee’s family who is ill. [p.12]

On the subject of aggregation the Commission decided:

to aggregate sick leave and bereavement leave and to allow access to the aggregated entitlement for specified family leave purposes ... The aggregation of sick leave and bereavement leave and its availability for family leave purpose will assist employees to reconcile their work and family responsibilities by providing greater access to existing paid leave entitlements for this purpose. [p.13]

the general provision of carer’s leave via aggregation offers scope for wider access across the work force and as such, hopefully, will contribute to changed community perceptions and a more equitable distribution of paid and domestic responsibilities across the paid employment sector. [p.15]

The Commission decided to limit the amount of accumulated sick/bereavement leave which an employee could use to provide care or support for an ill family member:

there is merit in adopting a cap on access to the aggregated entitlement for carer’s leave purposes. We have decided that a cap of 5 days per annum would be a fair balance between the provision of greater flexibility for employees to enable them to better balance their work and family responsibilities and the concerns ... about the need to limit the costs of any new entitlement. [p.21]

A five day per annum cap on access would also:

ensure that employees will continue to have access to paid leave for personal illness. [p.22]

Finally, in response to a request by the employers, the Commission made changes to the entitlements introduced in Stage 1:

First, the medical certificate or statutory declaration should also state that the sick person actually requires care. It was proposed that the words '... and that the illness is such as to require care by another' be added to the terms of the existing order. This proposal was not a matter of contention in the proceedings before us and we agree that it is consistent with the intention of the November 1994 decision. The orders arising from our decision will incorporate the ACCI’s proposal.

Second, ACCI argued that it would be consistent with the Parental Leave Test Case order [Print J6778], to provide that no more than one employee should take leave to care for the same family member, that is there should be no double counting of employees acting as the primary care giver for the one family member at the same time ...

We are satisfied that both points of view have merit ... [p.20]