AN170026 – Disability Service Providers Award
(a) The provisions of this clause apply to employees, other than one engaged as a casual or part-time employees who receive a loading of 20 per cent paid in lieu of annual leave, personal leave and holidays with pay in accordance with Part II - Employment Relationship and Associated Matters, Clause 3 - Employment Categories who is absent from work on account of personal illness or on account of injury by accident shall be entitled to leave of absence without deduction of pay, subject to the following conditions and limitations. The entitlements of casual employees and employees in receipt of a loading in lieu of an entitlement to paid leave are set out in subclause (k) - Casual employees or part-time employees who receive a loading in lieu of paid leave – Caring responsibilities.
(i) Definitions
The term ‘immediate family’ includes:
(1) spouse (including a former spouse, a de facto spouse and a former de facto spouse) of the employee. A de facto spouse means a person of the opposite sex to the employee who lives with the employee as his or her husband or wife on a bona fide domestic basis; and
(2) child or an adult child (including an adopted child, a step child or an ex-nuptial child), parent, grandparent, grandchild or sibling of the employee or spouse of the employee.
(ii) Amount of Paid Personal Leave
(1) Paid personal leave is available to an employee, when they are absent:
(A) due to personal illness or injury; or
(B) for the purposes of caring for an immediate family or household member who is sick and requires the employee’s care and support or who requires care due to an unexpected emergency.
(iii) An employee shall not be entitled to such leave of absence for any period in respect of which the employee is entitled to workers' compensation.
(iv) An employee shall not be entitled in any year to personal leave credit in excess of 76 hours of ordinary working time.
PROVIDED that during the first three months of employment, personal leave shall accrue on the basis of 6.33 hours for each completed calendar month of service with the employer.
(b) Personal leave shall accumulate from year to year so that any balance of the period specified in subclause (a) of this subclause which has in any year not been allowed to an employee by an employer as paid personal leave shall be credited to the employee and, subject to the conditions above shall be allowed by that employer in a subsequent year without diminution of the personal leave prescribed in respect of that year.
(c) An employer shall not be required to make any payment in respect of accumulated personal leave credits to an employee who is discharged or leaves his/her employment, or for any time an employee is absent from work without producing satisfactory evidence of personal illness.
PROVIDED that employees employed at the date of commencement of this award shall be entitled to personal leave accrued prior to that date.
(d) Sickness on Day Off
Where an employee is sick or injured on the week day or days the employee is to take off where the arrangements for the 38-hour week provides for rostered day/days off in the particular work cycle, the employee shall not be entitled to seek nor will the employee's personal leave entitlement be reduced as a result of the employee's sickness or injury on that day.
(e) Personal Leave for Personal Injury or Sickness
An employee is entitled to use the full amount of their personal leave entitlement including accrued leave for the purposes of personal illness or injury, subject to the conditions set out in this clause.
(f) Personal Leave to Care for an Immediate Family or Household Member
(i) An employee is entitled to use up to 10 days personal leave, including accrued leave, each year to care for members of their immediate family or household who are sick and require care and support or who require care due to an unexpected emergency, subject to the conditions set out in this clause.
Leave may be taken for part of a single day.
(ii) By agreement between an employer and an individual employee, the employee may access an additional amount of their accrued personal leave for the purposes set out in paragraph (f)(i), beyond the limit set out in paragraph (f)(i). In such circumstances, the employer and the employee shall agree upon the additional amount that may be accessed.
(g) Employee Must Give Notice
An employee shall, where possible, before the commencement of the shift or usual starting time of work, inform the employer of his/her inability to attend for work and as far as may be practicable state the nature of the illness or injury and estimated duration of the absence.
(h) Evidence Supporting Claim
(i) An employee shall prove to the satisfaction of the employer (or in the event of a dispute, the Tasmanian Industrial Commission) that he/she was unable on account of such illness or injury to attend for work on the day or days for which the personal leave is claimed or due to special circumstances was reasonably unable to notify the employer of such absence prior to the commencement of the shift or usual starting time of work and in such special circumstances the employee shall in any event notify the employer of such absence within 24 hours from the commencement of the shift or usual starting time of work.
(ii) When taking leave to care for members of their immediate family or household who require care due to an unexpected emergency, the employee must, if required by the employer, establish by production of documentation acceptable to the employer or a statutory declaration, the nature of the emergency and that such emergency resulted in the person concerned requiring care by the employee.
(i) Personal Leave and Workers’ Compensation
The employee shall not be entitled to such leave of absence for any period in respect of which the employee is entitled to workers' compensation.
(j) Unpaid Personal Leave
Where an employee has exhausted all paid personal leave entitlements, they are entitled to take unpaid personal leave to care for members of their immediate family or household who are sick and require care and support or who require care due to an unexpected emergency. The employer and the employee shall agree on the period. In the absence of agreement, the employee is entitled to take up to two days (up to a maximum of 16 hours) per occasion, provided the requirements of subclauses (g) and (h) are met.
(k) Casual employees or part-time employees who receive a loading in lieu of paid leave – Caring responsibilities
Subject to the evidentiary and notice requirements in subclauses (g) and (h) casual employees or part-time employees who receive a loading in lieu of paid leave are entitled to not be available to attend work, or to leave work if they need to care for members of their immediate family or household who are sick and require care and support, or who require care due to an unexpected emergency, or the birth of a child.
The employer and the employee shall agree on the period for which the employee will be entitled to not be available to attend work. In the absence of agreement, the employee is entitled to not be available to attend work for up to 48 hours (i.e. two days) per occasion. The casual employees and the part-time employees who receive a loading in lieu of paid leave are not entitled to any payment for the period of non-attendance.
An employer must not fail to re-engage a casual employee because the employee accessed the entitlements provided for in this clause. The rights of an employer to engage or not to engage a casual employee are otherwise not affected.
