Covid-19 tested the responses of employers to a plethora of different concerns, such as the use of carer’s leave under section 97 of the Fair Work Act and the particularly grey area of what circumstances constitute an ‘unexpected emergency.
What is carer’s leave?
Section 97 of the Fair Work Act provides full-time and part-time employees with an entitlement to 10 days personal/carer’s leave per year. The entitlement accrues gradually throughout the year, and unused leave carries over to the next year.
The entitlement operates so that leave can be taken for when the employee is too unwell to work or where they can’t work because they have to care for someone else, and both types of leave come out of the same “pot” of 10 days leave.
The Act states an employee may take paid personal/carer’s leave if the leave is taken:
(a) because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee (this would be recognised as personal/sick leave); or
(b) to provide care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because of
(i) a personal illness, or personal injury, affecting the member; or
(ii) an unexpected emergency affecting the member.
It should be noted that leave can only be taken where the employee has to care for a family/household member suffering from an unexpected emergency, not when the employee faces an unexpected emergency themselves.
Before establishing what is an ‘unexpected emergency, and what circumstances meet this threshold, we first need to define ‘immediate family members’ and a ‘household member’, as a carer’s leave can only be taken to help these persons. An immediate family member is a:
- spouse or former spouse
- de facto partner or former de facto partner
- sibling, or
- child, parent, grandparent, grandchild or sibling of the employee’s spouse or de facto partner (or former spouse or de facto partner).
This definition also includes step-relations e.g. a step-parent, as well as adoptive relations. A household member, as you might expect, is any person who lives with the employee.
Case Law: what constitutes an ‘unexpected emergency’?
In the case of Klowss v Groote Eylandt Mining Company Pty Ltd (C 2013/1515), the employee (Mrs Klowss) and her partner were both FIFO workers for a mining company, working an identical roster of 7 days on, 7 days off. The couple had a young teenage son who would stay with family when both parents were required to attend work as per their rosters, and in the event family was not available, the couple would seek the services of a babysitter. However, four days before their scheduled shift, the babysitter had to cancel the arrangement due to a family emergency. The employee notified her employer that she would now be unable to attend her shift as she needed to look after her son as there were no family members who could look after him. Although the employer accepted Mrs Klowss would be unavailable for her shift, the employer classified this period of absence as annual leave on the basis that a babysitter cancelling with four days’ notice is not an “unexpected emergency”. The employee disputed this as she believed it should have been classified as a carer’s leave.
This issue was resolved at the Fair Work Commission which ruled in favor of the employee as it was established that the son could not be left alone for the 7-day period and that caring for her son herself was the only available option open to the employee. The company’s argument that the employee could have sought alternate care arrangements for her son was unsuccessful.
Below are further examples of scenarios where the court has considered an ‘unexpected emergency’ to have occurred;
- A situation in which an employee was required to provide care to his children as his pregnant partner gave birth prematurely and was hospitalized two hours away from home
- Due to pick-up arrangements falling through, an employee was required to leave work early to pick up her young, school-aged child
We can therefore deduce that the court’s interpretation of ‘unexpected emergency’ is broad and can be applied to situations that may not necessarily meet what we might typically classified as an ‘emergency’ situation.
Although the definition of ‘unexpected emergency’ is broad, it is not limitless. In our view, the more notice an employee has of an event occurring, the harder it will be for them to argue it is an unexpected emergency. Similarly, the longer the event lasts, the less likely it will be to continue to meet this definition.
If, for example, an employee has had a significant period of notice of their child’s childcare centre closing, or if the centre was closed for a substantial amount of time, there will be a point where it would be reasonable for the employee to make other arrangements. What is a ‘reasonable’ period, will vary from employee to employee and understanding individual circumstances will be critical e.g. some employees may not have many other options is if they don’t have family based locally to assist. As a result, requests for carer’s leave will need to be assessed on a case-by-case basis.
If you have any concerns regarding the above, or want to understand your rights as an employer, we recommend reaching out to the Employment Innovations team for further advice and support.
About HR Connect
HR Connect is one of Australia’s leading providers of HR and workplace safety advice service, designed to help small business owners make confident and compliant business decisions.
The information provided in these blog articles is general in nature and is not intended to substitute for professional advice. If you are unsure about how this information applies to your specific situation we recommend you contact HR Connect for advice.