Who can use this policy

This Leave Policy can be used by. all employers throughout Australia, except the following excluded employers:

• Non-constitutional corporation employers in Western Australia
• State public sector employers (ie employees of a Minister, the Governor or the Crown); and
• Local Government employers — except Tasmania.

Commentary
Employees have a range of entitlements in relation to certain types of leave. The types of leave that are dealt with in this Leave Policy are annual leave, personal/carer’s leave, compassionate leave, long service leave, and community services leave (which includes jury service and voluntary emergency services).

The Leave Policy has been updated to include miscarriage leave as part of compassionate leave. Subject to the note in the following paragraph, miscarriage leave is available for employees, or an employee's spouse or de facto partner, who has a miscarriage, the employee will then be entitled to 2 days paid compassionate leave (unpaid for casuals) in recognition of their bereavement. To access compassionate leave in relation to miscarriage an employee will be required to comply with the existing notice and evidence requirements that already apply to employees taking compassionate leave for the other prescribed occasions. This means an employee must, as soon as practicable, provide their employer evidence that would satisfy a reasonable person that the leave is taken for the permissible reason.

Please note that the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 introduces miscarriage leave. At the time of writing the miscarriage leave provision into the leave policy, the Bill has not been passed and therefore the miscarriage leave provision is not currently law. The reader should check the relevant legal provisions at the relevant time.

These entitlements may differ in some respects for certain types of employees, for example, day workers and shift workers; agreement-covered employees; award-covered employees; or award/agreement free employees. They also differ depending on the detail of the award or agreement that applies to the employee.

With respect to miscarriage leave, miscarriage leave as drafted in the policy is applicable for stillbirths only, in accordance with the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 (Bill). Parliament is sitting in August 2021 to debate the Bill. The definition of 'miscarriage' may be expanded. If this is the case, then employers should seek legal advice to ensure that the Leave Policy reflects any new law in this area.

The Leave Policy allows employers to account for these different types of employees in one policy.

Before using or implementing the leave policy, please ensure that it is consistent with any enterprise agreement, contract, or award which applies to the employees in your workplace. The Policy should also be supplemented by a policy on parental leave and leave without pay - those policies can be found on the Policies tab of the HR Advance website.

Note: Some of the entitlements which appear in this policy (for example community service leave) commenced on 1 January 2010.