Personal leave entitlements

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EmployerEmployee / worker

wa_image_small.jpg This information is only relevant to employers and employees in the WA state industrial relations system – sole traders, unincorporated partnerships, unincorporated trusts and some incorporated or not for profit organisations.  Find out more on the Guide to who is in the WA state system page.

If you operate or are employed by a Pty Ltd business – you can find information on this topic on the Fair Work Ombudsman website.

Learn about the changes to state employment laws that commenced on 20 June 2022.

About this page:

  • This page provides general information on personal leave entitlements based on the minimum entitlements for employees covered by the Minimum Conditions of Employment Act (MCE Act). 
  • WA awards may specify additional requirements relating to payment for personal leave and how and when personal leave is taken by employees. Visit the WA award summaries page for information on award requirements. 

Who is entitled to personal leave?

Full time and part time employees are entitled to paid personal leave. Casuals are not entitled to paid personal leave.

All employees, including casual employees, are also entitled to unpaid personal leave for caring purposes.

What can paid personal leave be used for?

An employee can take paid personal leave:

  • because the employee is not fit for work due to a personal illness or injury; or
  • to provide care or support to a member of the employee’s family or household who requires care or support because of:
  • a personal illness or injury affecting the member; or
  • an unexpected emergency affecting the member.

A member of the family or household means any of the following people:

  • the employee’s spouse or de facto partner;
  • a child, step child or grandchild of the employee (including an adult child, step child or grandchild);
  • a parent, step parent or grandparent of the employee;
  • a sibling of the employee; or
  • any other person who, at or immediately before the relevant time lived with the employee as a member of the employee’s household.

Employees can take personal leave in either whole or part days depending upon the particular circumstances.

How much paid personal leave do employees get?

For each year of service, full time and part time employees are entitled to paid personal leave equivalent to the number of hours the employee is required ordinarily to work in a two week period during that year, up to 76 hours.

Personal leave accrues on a weekly basis.

Personal leave is a cumulative entitlement, which means that any unused personal leave is carried over and added to the next year’s entitlement.

How much unpaid personal leave for caring purposes do employees get?

All employees, including casual employees, are entitled to unpaid personal leave for caring purposes under the MCE Act.

An employee is entitled to two days of unpaid personal leave for each occasion when a member of the employee’s family or household requires care or support because of:

  • a personal illness or personal injury affecting the member of the family or household; or
  • an unexpected emergency affecting the household member of the family or household.

An employee may take unpaid personal leave for each permissible occasion as a single continuous period of up to two days; or any separate periods to which the employee and their employer agree.

Under the MCE Act, employees do not have a specific entitlement to unpaid personal leave for a personal illness or injury. However this will not prevent an employer and employee from agreeing on some other form of leave, including leave without pay.

How is personal leave calculated?

Personal leave accrues on a weekly basis and can be calculated based on how many weeks an employee has worked - For example:

  • a full time employee accrues 1.461 hours of personal leave for each completed week of work (based on the standard 38 hour week); and
  • a part time employee will accrue the relevant proportion of 1.461 hours of personal leave for each completed week of work, based on how many hours they have worked that week.

Wageline's Personal leave calculation guide provides an overview of how to work out paid personal leave entitlements for full time and part time employees. 

What should employees be paid when they take personal leave?

Employees are to be paid their current rate of pay when they take personal leave. 

Commission-only and piece rate employees are to be paid the highest of the following for a period of personal leave:

  • a rate payable under a WA award or contract of employment for a period of leave;
  • a rate calculated according to the employee’s average weekly earnings over a period totalling 365 days immediately before the time the personal leave is taken;
  • the applicable minimum rate of pay.

Where the rate of payment for a period of personal leave is being calculated according to the employee’s average weekly earnings over the 365 days before the leave is taken, the following periods are not included in the calculation:

  • any period during which the employee was on unpaid leave; and
  • any period during which the employee was stood down in accordance with an award, agreement or legislative provision.

Can an employee’s accrued personal leave be cleared if they don’t use it within a year?

No, personal leave is a cumulative entitlement which means that if the employee does not use up their full entitlement in any one year, the leftover portion is carried over and added to the next year’s entitlement.

Do employees have to provide a medical certificate when taking personal leave?

An employer can require an employee to provide reasonable evidence before they are paid for any time off work on sick leave or carer’s leave.

Reasonable evidence may include a medical certificate, but is not necessarily limited to this – for example if the employee comes to work with a cast on their arm, or the employer actually sent an employee home because they looked ill, or the employer was present when the employee received a phone call to pick up their child up from school due to illness, then any of these examples could potentially count as reasonable evidence.

What happens if the employee has run out of personal leave - do they still have to be paid if they call in sick?

In most circumstances, if an employee has used up all of their personal leave then they are not entitled to be paid for any further time they have off work for illness, injury or caring purposes. There are a limited number of WA awards that provide for annual leave to be used in situations where personal leave has been exhausted.  

Can an employee take unpaid personal leave if they have paid personal leave available?

No, under the MCE Act, full time and part time employees must take any paid personal leave they have available before accessing unpaid personal leave.

What records does an employer need to keep?

An employer must keep records of all personal leave taken. All state system employers are legally required to keep employment records recording specific information - Visit the Employment records - Employer obligations page for details. 

question_mark_icon.jpg  Please contact Wageline if you have further questions about personal leave obligations.

 

 

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