Many employers treat bereavement leave like sick leave. It is not.
The triggers are different. The evidence rules are different. The entitlement applies to casual employees (unpaid) as well as permanent staff. And a Fair Work Commission decision in February 2026 (Bianca Knott v Tru Ninja Pty Ltd [2026] FWC) narrowed what employers can demand by way of proof, in ways that catch out the businesses still using a 2018-era policy template.
Bereavement leave sits under the National Employment Standards as part of "compassionate leave." It applies to every employee in the national system, whether they have worked for you five years or five weeks. The minimum entitlement is small (two days per occasion), but the practical and legal consequences of getting the handling wrong are not.
This guide walks through what the Act requires, what employers need to know about evidence and payment, what many businesses get wrong, and what good practice looks like when a staff member loses someone close to them.
What the Fair Work Act actually says about bereavement leave
The term "bereavement leave" does not appear in the Fair Work Act. The Act uses "compassionate leave" as the formal name for the entitlement set out in sections 104 to 106. The two terms describe the same thing in most everyday contexts, and compassionate leave taken after a death is also known as bereavement leave in most workplace policies. We cover the distinction between compassionate and bereavement leave in a separate guide publishing shortly; this post focuses on bereavement specifically, meaning compassionate leave taken following a death.
Under section 104 of the Fair Work Act 2009, an employee is entitled to two days of compassionate leave for each "permissible occasion." A permissible occasion arises when a member of the employee's immediate family or household:
- Contracts or develops a personal illness that poses a serious threat to their life
- Sustains a personal injury that poses a serious threat to their life
- Dies
A permissible occasion also arises when:
- A child is stillborn (whether the child of the employee, or of the employee's spouse or de facto partner)
- The employee, the employee's spouse, or the employee's de facto partner has a miscarriage
These are the trigger events. In short, the leave applies when a member of the employee's immediate family or household dies or suffers a serious illness or injury that threatens their life. There is no other route in. A friend's death, a colleague's death, or a more distant relative's death does not meet the section 104 test. An employer may still grant leave in those circumstances, but it is not a legal entitlement and the rules below do not govern it.
Full-time and part-time employees receive paid compassionate leave for the two days, calculated on the ordinary hours they would have worked. Overtime, penalty rates, and allowances are not included unless an applicable award or agreement says otherwise.
For casual employees, the two days are without pay. Casual employees can take compassionate leave like anyone else, and an employer cannot refuse it on the basis that the employee is "only casual." Treating bereavement as a permanent-only benefit is a common compliance failure in SME policy reviews.
Who counts as immediate family or household
"Immediate family" is defined in section 12 of the Act. It includes:
- The employee's spouse or de facto partner
- The employee's child, parent, grandparent, grandchild, or sibling
- The child, parent, grandparent, grandchild, or sibling of the employee's spouse or de facto partner
The definition uses "spouse or de facto partner," not "spouse." Same-sex de facto partners and the partner's family members are included.
"Household" is not defined by reference to a family relationship. It means a person who lives with the employee on a genuinely shared-residence basis. A housemate who is on the lease and shares the day-to-day household qualifies. A short-term overnight guest does not.
The test is met if the person is an immediate family member or household member of the employee; satisfying one limb is enough. The terms are not interchangeable with the broader concept of "next of kin" or "family" in everyday usage. An aunt, uncle, cousin, or step-grandparent is not within the legal definition unless the relationship also satisfies the household test.
In foster care, kinship care, and complex family structures, the definition can produce results that feel counterintuitive. An employer dealing with a request based on a non-traditional family arrangement should take care to apply the legal test (immediate family plus household) and not their own assumptions about what "should" count.
Two days of compassionate leave per occasion
The amount of compassionate leave is two days per occasion, not per year. There is no annual cap, and employees are eligible each time a permissible occasion arises.
An employee whose grandmother dies in March and whose father-in-law dies in October is entitled to two days of bereavement leave for each death. An employee whose spouse has a life-threatening illness in January, recovers, and is later diagnosed with a separate life-threatening illness in November is entitled to two days for each occasion. The triggering event resets the clock.
The two days can be taken as:
- Two consecutive days
- Two separate days (for example, one day for the funeral and one day a week later for the burial of ashes interstate)
- Two half-days (subject to the employer agreeing to the half-day arrangement; the employee does not have a right to demand it)
The leave can be taken at any time the qualifying event makes it reasonable. There is no requirement that the days be taken immediately after the death, or that the leave be tied to the funeral. An employee who is told of a parent's death while overseas may not be able to take the leave until they return.
The leave does not need to be applied for in advance. The employee's obligation is to give notice "as soon as practicable" of the absence and (where it is reasonable to do so) the expected duration. In a bereavement context, "as soon as practicable" is generally a phone call or message that day. It is not a written application three days in advance.
Award and enterprise agreement variations on bereavement leave
The two-day NES entitlement is the floor, not the ceiling.
Some modern awards provide additional bereavement-specific leave on top of the NES compassionate leave entitlement. Some enterprise agreements provide longer paid leave, additional unpaid leave, or specific provisions for travel time when the funeral is interstate or overseas.
Common variations include:
- Extra paid days for the death of a parent, child, or spouse (some clerical and professional awards historically included these)
- Specific paid time for travel to and from a funeral when the location is more than a stated distance from the workplace
- Additional leave for non-immediate family members outside the NES definition (sometimes including in-laws beyond the spouse, step-relatives, or extended family)
- Provisions in some enterprise agreements that convert unused bereavement entitlements to additional personal/carer's leave at end of year
An employer's practical compliance starting point is to map the relevant award or agreement against the NES entitlement and apply whichever is more generous on each specific issue. The NES is not displaced by an award providing less; an award cannot provide less than the NES. But where an award provides more, the more generous provision applies.
Where there is no applicable award (an award-free employee), only the NES applies, plus whatever the employment contract or workplace policy provides. Workplace policies cannot reduce the NES minimum, but they can extend it.
Evidence: what you can ask for, and what you can't
Under section 107, an employer can request evidence to support a compassionate leave request, but the request must be reasonable. The Fair Work Ombudsman's guidance on compassionate and bereavement leave sets out the standard accepted forms.
What counts as reasonable evidence:
- A death notice from a newspaper or funeral home
- A funeral notice or service program
- A statutory declaration from the employee
- A medical certificate (where the trigger is a life-threatening illness or injury)
- A copy of a death certificate, where one has been issued
What counts as unreasonable:
- Demanding a death certificate in the immediate days after a death (the Fair Work Commission confirmed in Bianca Knott v Tru Ninja Pty Ltd [2026] FWC that requiring a death certificate in the days after the death is not reasonable, given the realistic timeline for one to be issued)
- Requiring evidence for every absence regardless of pattern or duration
- Demanding evidence in a form not contemplated by the Act (for example, a written statement from the funeral director)
- Asking for proof of the relationship (employees are entitled to take the leave on the basis of their own statutory declaration about the family relationship; demanding documentary proof of a parent-child relationship is generally not reasonable)
The evidence test in section 107 is the same test that applies to personal leave: it is the kind of evidence that would "satisfy a reasonable person." Reasonableness is contextual. An employer who has never previously requested evidence and suddenly demands a death certificate for a single absence runs the risk of an adverse action claim under the general protections provisions of the Act, on the basis that the employer is treating the employee less favourably because they exercised a workplace right.
The safer pattern is a consistent, written policy that explains what evidence may be requested in what circumstances, applied consistently across employees, with reasonable proportionality between the length of the absence and the depth of evidence required.
Interaction with personal and carer's leave
Bereavement leave is not the only leave that can be relevant when a family member is ill or has died.
Where the family member's illness preceded death, the employee may have been on paid personal/carer's leave (NES sections 96 to 101) to care for that person. The personal/carer's leave entitlement is 10 days per year for full-time employees (pro-rata for part-time), and is paid at the base rate. It is a separate balance from compassionate leave and does not affect the two-day compassionate entitlement.
Where the employee is acting as the next of kin and needs additional unpaid time to attend to estate or funeral arrangements, the employer may consider:
- Unpaid leave (by agreement)
- Annual leave (the employee's accrued balance)
- Working from home, where the role permits
Where the employee's mental health is affected and they cannot return to work after the two days, the situation transitions into personal/carer's leave for the employee's own illness (which may include grief-related psychological injury supported by a medical certificate). At that point, the relevant entitlements are the personal/carer's leave provisions, not compassionate leave.
An employee who has used their two days of compassionate leave for a permissible occasion and needs further time should be supported back into the next applicable leave category, not forced back to work or refused further support.
Bereavement leave is one of the smallest entitlements in the Fair Work Act and a commonly mishandled one. We work with employers across dozens of industries including manufacturing, professional services, education, and hospitality, among others, on the practical questions that come up when staff members are dealing with loss. If your business has not reviewed its leave policies since the 2024 Fair Work amendments, a senior HR adviser on retainer can keep your documentation current without the overhead of a full-time hire. Call Daniel on 1300 23 44 23 or book a 30-minute strategy call.
Is bereavement leave paid? Payroll and record-keeping requirements
Under regulation 3.36 of the Fair Work Regulations, an employer must keep records of leave taken under each NES leave category, including compassionate leave. The records must show:
- The number of days of compassionate leave taken
- Whether the leave was paid or unpaid (for casuals or for permanents on a public holiday, this distinction matters)
- The relevant pay period or periods in which the leave was taken
- Any balance the employee carries forward (compassionate leave does not accrue, so this is typically nil; the record is per-occasion)
The records must be kept for seven years (section 535 of the Fair Work Act) and must be in a form that can be inspected by a Fair Work Inspector on request. A written bereavement leave policy should mirror these record-keeping rules so payroll and managers code the leave the same way every time.
Payroll classification is one of the practical handling points that often goes wrong. Compassionate leave is its own type of leave for payroll purposes and should not be coded as personal/carer's leave (which is a separate balance under section 96). Where the leave is coded incorrectly, two consequences follow. First, the employee's personal/carer's balance is reduced by days that should not have come out of it. Second, the payroll record does not match the employee's actual NES utilisation, which creates a documentary problem if the matter is ever audited or disputed.
Where the leave is paid, the payment is at the employee's base rate of pay for the ordinary hours the employee would have worked on those days. Base rate means the rate of pay for ordinary hours of work, excluding loadings, allowances, overtime, and penalty rates. For a casual on an applicable modern award that pays casual loading, the casual loading is not paid on unpaid compassionate leave, because there are no paid hours.
One additional record-keeping point catches out employers running casual conversion. Where a casual converts to permanent employment under the casual conversion regime, future compassionate leave moves from unpaid to paid from the conversion date. The conversion does not retrospectively reclassify past leave, but it does change the payroll treatment from the next qualifying occasion onwards.
Bereavement is the kind of situation that tests how an employer actually behaves under stress, regardless of what the policy says. Getting the legal compliance right is the floor; building documentation, training, and consistent practice on top of it is what separates businesses that handle it well from those that turn a small entitlement into a Fair Work claim.
