Carer’s leave is paid or unpaid leave given to an employee because they need to provide care and support to a member of their immediate family or a member of their household because:
- the family or household member has a personal illness or injury; or
- the family or household member is affected by an unexpected emergency.
Who qualifies as a member of an employee’s immediate family or household for the purposes of carer’s leave is clearly set out. Family and household members include:
- spouses or former spouses; and
- de facto partners or former de facto partners.
Not so clear is what qualifies as an “unexpected emergency”. In today’s bulletin, a look at a Fair Work Commission finding that helps to clarify this.
Case Law: What qualifies as an “unexpected emergency” for carer’s leave purposes?
Late last year, the Fair Work Commission (FWC) resolved a dispute between an employer and an employee with a 14-year-old son.
The employee and her husband were both fly-in fly-out employees who worked the same 7-day roster, including during the school holidays. The employee usually arranged for her son to be looked after by his grandparents during holidays but, on this occasion, the grandparents were away travelling. The employee made alternative arrangements for a friend to look after her son.
Four days before the employee was due to fly out from Cairns, the friend unexpectedly had to leave Cairns to look after a family member who had been hospitalised. The employee had no one else who could care for her son and so remained at home with him, claiming carer’s leave for doing so.
The employer’s enterprise agreement contained a similar clause to that in the National Employment Standards – that personal/carer’s leave can be taken by employees if they need to care for immediate family members due to an “unexpected emergency affecting the member”. However, the employer did not believe that the friend’s unavailability constituted an emergency because it did not “affect” the employee’s son. As such, the employer refused the request for carer’s leave and instead required the employee to take annual leave.
The FWC disagreed with the employer, finding that:
- the clause “unexpected emergency affecting the member” encompassed an emergency affecting the caretaker, because it was the child who was left without care;
- the employee had taken all reasonable steps to find care for her son; and
- the employee had since changed her roster so that she and her husband no longer worked the same shifts.