You need to go overseas to support a sick relative - is it carer's leave or annual leave?

Mother daughter lowres

Is an employee entitled to paid carer’s leave if she or he travels overseas to care for her or his mother? Or should the employee take annual leave?

This question was recently sent to Workplace Info’s Ask an Expert service.

Q: An employee has requested paid carer’s leave to return home to the United Kingdom for two-to-three weeks over the Christmas period. He needs to arrange Power of Attorney to care for his mother who is suffering from dementia.

Would this be considered paid carer’s leave or would the employee need to apply for annual leave to cover this circumstance? The company will be closed for annual leave during the Christmas break (22-29 December).

A: Under the Fair Work Act (s97), carer’s leave is to enable an employee to provide care or support for a member of the employee’s immediate family or a member of the employee’s household, who requires care or support because of:

  • a personal illness, or a personal injury, affecting the member; or
  • an unexpected emergency affecting the member.

In the situation described, the employee’s mother is covered by the definition of immediate family (s12) in the Fair Work Act.

There is nothing in the Act to say the immediate family member must be located in Australia.  

The employee is not required to be the primary carer so long as he is providing care or support due to the above reasons outlined in the National Employment Standards. He would be able to use his personal leave accrual if he fulfils the definition of personal/carer’s leave, as well as the notice and evidence requirements.

If the absence does not meet the criteria above then it would be annual leave.

The bottom line: The meaning of ‘support’ is not defined in the Fair Work Act. However, an employee can produce reasonable evidence from an appropriate person which states the employee is required to give care or support to a family member or household member of the employee.

Source: Workplace Info – a publication from Australian Business Consulting and Solutions, see www.workplaceinfo.com.au

For more information visit the Fair work Ombudsman site at: https://www.fairwork.gov.au/leave/sick-and-carers-leave