Compassionate leave requests tend to arrive without warning, and usually at the moment a manager has the least time to check what the rules actually say. It is one of the smallest entitlements in the Fair Work Act 2009 and one of the most commonly misapplied, because many employers treat it as leave for funerals when the National Employment Standards cover a good deal more than that. Getting the answer right takes a few minutes of preparation, and it is remembered long after the roster problem it created.
This guide covers the compassionate leave entitlement under the National Employment Standards: the trigger events, how the two days operate, who is paid, and where awards and agreements vary it. It is written for employers handling a request, not employees making one.
Compassionate leave and bereavement leave: same section, different triggers
The Fair Work Act does not use the phrase "bereavement leave" at all. Sections 104 to 106 create a single entitlement called compassionate leave, also known as bereavement leave in everyday use when the occasion is the death of a close family member. The distinction matters because compassionate leave is wider than bereavement: death is only one of its trigger events, and employers who treat the entitlement as funeral leave routinely refuse requests the Act actually covers.
This post deals with the entitlement's mechanics across all its triggers. For the death-specific handling questions, including evidence requests and payroll coding, the full bereavement leave guide covers that ground in detail.
The three trigger events under section 104
Under section 104 of the Fair Work Act, employees are entitled to two days of compassionate leave for each permissible occasion, and the leave can be taken for any of three groups of trigger events.
Life-threatening illness or injury
A permissible occasion arises when a member of the employee's immediate family or household contracts or develops a personal illness, or sustains a personal injury, that poses a serious threat to their life. Two features of this trigger are commonly missed. The person does not need to die: the entitlement exists while the threat to life exists. And the threshold is a serious threat to life, not any hospitalisation, which is why a manager fielding a request needs the actual circumstances rather than a diagnosis category. A serious illness that does not threaten life is not a compassionate leave occasion, although it may engage personal or carer's leave instead.
An immediate family member is the employee's spouse or de facto partner, child, parent, grandparent, grandchild or sibling, plus the same relatives of the employee's spouse or de facto partner. A household member is someone who genuinely lives with the employee. Meeting either limb is enough.
Death
A permissible occasion arises when a member of the employee's immediate family or household dies. This is the bereavement case, and the handling detail, from notice through evidence to payroll, sits in the bereavement guide linked above.
Miscarriage and stillbirth
The Act deals expressly with pregnancy loss, and the structure is precise:
- A permissible occasion arises if the employee, or the employee's spouse or de facto partner, has a miscarriage. The entitlement belongs to both partners, not only the person who was pregnant.
- The miscarriage limb does not extend to a former spouse or former de facto partner.
- A stillbirth is its own permissible occasion where the child would have been a member of the employee's immediate family or household had the child been born alive, and where a miscarriage results in a stillborn child, the occasion is treated under the stillbirth limb rather than the miscarriage limb.
For employers, the practical point is simple: pregnancy loss is a compassionate leave event for both parents, and a request on that basis is not discretionary goodwill. It is a National Employment Standards entitlement.
Two days per occasion: how it actually operates
The entitlement is two days of compassionate leave per permissible occasion, and it does not accumulate, because there is nothing to accumulate: it is not an accruing balance but an entitlement that arises fresh each time an occasion occurs. There is no annual cap and no qualifying period, and it applies from the first day of employment.
Taking the leave
Section 105 sets out the permitted patterns. The employee may take the 2 days as:
- A single continuous 2 day period
- 2 separate periods of 1 day each
- Any separate periods the employee and employer agree on, which is how half-days and other arrangements lawfully happen
Where the occasion is a life-threatening illness or injury, the timing rule is generous by design: the employee may take the leave at any time while the illness or injury persists. An employee whose parent has been in intensive care for a month can take their two days in week four. The occasion has not expired because time has passed.
Occasions reset
Each permissible occasion carries its own 2 days. An employee whose mother suffers a life-threatening illness in March and who then loses a grandparent in September has two separate entitlements. A recovery followed by a separate life-threatening diagnosis later in the year is again a new occasion. Employers tracking compassionate leave against an annual allowance are applying a cap the Act does not contain.
Who gets paid and who does not
Whether the leave is paid or unpaid splits cleanly on employment type. Full-time and part-time employees receive paid compassionate leave at the employee's base pay rate for the ordinary hours they would have worked during the period: base rate means no loadings, no penalties, no overtime, unless an applicable instrument says otherwise. That is two days of paid compassionate leave for each occasion, with no annual cap.
For casual employees, the same occasion gives two days of unpaid compassionate leave. The distinction employers get wrong is treating unpaid as unavailable. A casual is fully entitled to compassionate leave for a permissible occasion, and refusing the absence because "casuals don't get compassionate leave" misstates the law. The leave exists; the pay does not.
Award and agreement variations
The NES is the floor. Modern awards and enterprise agreements can add to compassionate leave entitlements, and some do:
- Additional paid days for particular relationships or circumstances
- Paid travel time or extra unpaid leave where a funeral or family emergency is interstate or overseas
- Compassionate leave provisions for casuals that improve on the unpaid NES position
The compliance method is the same as for any NES interaction: check the applicable award or agreement, compare each element against the NES minimum, and apply the more generous provision element by element. Nothing in an award can cut the entitlement below 2 paid days per occasion for permanent employees, or remove the casual employee's right to take the leave unpaid.
Handling the request well
The mechanics above are the legal minimum. The handling is what the employee remembers:
- Respond to the person before the process. The entitlement conversation can happen an hour after the human one.
- Take notice as it comes. The employee's obligation is to give notice as soon as practicable, which may be after the leave has started, along with the expected period of absence where that is reasonable. A phone call or message on the day meets the standard; a written application three days in advance is not something the Act requires.
- Do not demand paperwork at the door. An employer can request evidence that would satisfy a reasonable person, which in practice means a medical certificate, a death or funeral notice, or a statutory declaration. Timing and proportionality matter, and the detailed evidence rules, including what is reasonable to ask for and when, are covered in the bereavement guide.
- Record the leave correctly as compassionate leave, not personal leave, so balances and records stay accurate.
- Plan for the second conversation. Two days is rarely enough time to grieve, and rarely the end of it. Annual or unpaid leave by agreement, and personal leave for the employee's own health, may all follow, and a manager who knows the options can offer them instead of improvising.
Managing compassionate leave well comes down to deciding the process before you need it, because these requests arrive without warning and rarely at convenient times. If your workplace has no documented leave policy and questions like these land on whoever answers the phone, ongoing HR support without a full-time hire exists for exactly this. Call Daniel on 1300 23 44 23.
