Q. Our company recently employed an administrative employee. She has been employed for about one month but has been absent for two days due to her child’s illness. While the employee has provided reasonable evidence, she has been advised there is insufficient accrual of leave to cover the two working days. She has asked whether the carer’s leave could be paid in advance. 
 
Is this possible under the paid personal/carer’s leave provisions under the National Employment Standards? Does the employee have to complete a minimum period of service to access accrued paid personal/carer’s leave? 
  

A. Accrual of personal/carer’s leave: Under s.96 of the Fair Work Act 2009 (Cth), paid personal/carer’s leave accrues progressively during a year of service and is based on the employee’s ordinary hours of work.

Full-time employees accrue the equivalent of 10 days per year. Importantly, there is no minimum period of service required before accessing the entitlement and employees may take leave as soon as it accrues. 

In this scenario, after one month of service, the employee would have accrued approximately 0.8–0.9 days of paid personal/carer’s leave (depending on hours worked). The balance of the absence would ordinarily be taken as unpaid carer’s leave, provided the employee meets evidence requirements.   
 

Can personal/carer’s leave be taken in advance?

The Fair Work Act does not expressly provide for or prohibit taking paid personal/carer’s leave in advance of accrual. In practice an employer may agree to allow an employee to take leave in advance. This is a discretionary arrangement, not an entitlement. Providing leave in advance is permitted, but employers are not obliged to do so.

 

What about modern awards and agreements?

Most modern awards (including the Clerks – Private Sector Award 2020) do not contain provisions dealing with personal/carer’s leave in advance. This means the matter is generally left to employer discretion, unless addressed in a policy or enterprise agreement. 

 

Managing leave in advance

If an employer agrees to provide paid personal/carer’s leave in advance, it should document the arrangement in writing and specify how any negative leave balance will be treated.

 

Recovery on termination

Recovering advanced leave from final pay can be legally complex. Under s.324, deductions from wages must be authorised, and be principally for the employee’s benefit. Therefore, recovery may be possible only if there is clear written authorisation otherwise, deduction from final pay may be unlawful. 

 

Unpaid carer’s leave

Where paid leave is insufficient, employees are entitled to 2 days of unpaid carer’s leave per permissible occasion. This entitlement applies regardless of length of service and once paid leave has been exhausted. 

 

Annual leave comparison

Unlike personal leave, some modern awards and enterprise agreements explicitly allow annual leave to be taken in advance. This highlights that leave in advance is generally a matter of agreement, not automatic entitlement. 

 

Bottom line

Employees can access paid personal/carer’s leave as it accrues, with no minimum service requirement. Where insufficient leave is available, employees may take unpaid carer’s leave. 

Employers may agree to provide personal/carer’s leave in advance, but are not required to do so any advance arrangement should be clearly documented, particularly regarding repayment. Taking a careful and documented approach helps minimise payroll risks and compliance issues.