Bereavement Leave in NSW: What Employers Need to Know

When a team member loses a loved one, the human thing to do is support them. It’s also a legal requirement to provide bereavement (compassionate) leave in the right way.

If you operate in New South Wales, the good news is that the rules are mainly set at the national level under the Fair Work system. That means you can build a clear process that works across your business, and feel confident you’re meeting your obligations.

In this guide, we’ll step through what counts as bereavement leave in NSW, who is eligible, how much time off you must provide, whether it’s paid, what evidence you can request, how it interacts with other leave, and how to set up policies and contracts that make difficult moments a little easier to manage.

What Is Bereavement Leave In NSW?

In Australian employment law, “bereavement leave” is called compassionate leave under the National Employment Standards (NES) in the Fair Work Act. The NES apply to most private sector employers in NSW (and nationwide), no matter your size.

Compassionate leave allows an employee to take time off:

• When a member of their immediate family or household dies, or develops a life-threatening illness or injury; or
• When the employee, or their spouse or de facto partner, has a miscarriage.

“Immediate family” includes a spouse or de facto partner, child, parent, grandparent, grandchild or sibling of the employee (and the same relatives of the employee’s spouse or de facto). A “household member” is anyone who lives with the employee.

NSW does not have a separate state-based bereavement leave regime for most private employers - so your obligations are set by the NES, plus any applicable modern award or enterprise agreement terms that may be more generous.

Who Is Eligible, How Much Leave And Is It Paid?

All employees (including casuals) are entitled to compassionate leave under the NES when a permissible occasion occurs. The key points are straightforward, but important.

Amount Of Leave

• Two days per permissible occasion: That means two days each time an eligible event occurs (e.g. two days for a grandparent’s death, and two days again if, later, a sibling passes away).
• Flexible taking: The two days can be taken in a single continuous block, in two separate days, or in part-days if that suits the situation and your roster. Work with the employee to find the most supportive and practical option.
• No accrual: Compassionate leave does not accrue like annual leave, and it doesn’t come out of sick leave balances. It’s available as needed when an eligible event happens.

Paid Or Unpaid?

• Permanent employees (full-time and part-time) must be paid for compassionate leave at their base rate for the ordinary hours they would have worked during the leave period. This excludes loadings, overtime, allowances and penalties.
• Casual employees are entitled to the time off, but it is unpaid under the NES.

Awards And Enterprise Agreements

Some modern awards and enterprise agreements provide additional entitlements (for example, more than two days, or broader coverage). Always check the applicable instrument for your workplace. If your agreement or policy is more generous than the NES, you must honour the higher entitlement.

To reduce uncertainty, many employers spell out the entitlement in the Employment Contract and align it with any relevant award terms.

Notice, Evidence And Privacy: What Can You Ask For?

In difficult times, sensitivity matters. You can be compassionate and still meet your compliance obligations by following the NES rules on notice and evidence.

Notice Requirement

An employee must let you know they’re taking compassionate leave as soon as practicable. This may be after the leave has started. They should also tell you how long they expect to be away.

Your internal process should make notification easy - for example, allowing a text or phone call to the line manager, followed by an email when the employee is ready. Setting this out in a clear Workplace Policy helps everyone know what to do when the unexpected happens.

Evidence You May Request

You can ask for reasonable evidence that would satisfy a reasonable person that the leave is taken for a permissible reason. Common forms include:

• A death or funeral notice
• A letter or email confirming funeral details
• A medical certificate or hospital letter confirming a life‑threatening illness or injury
• A medical certificate relating to a miscarriage

Only request what you need. The goal is to verify the entitlement, not to obtain sensitive details unnecessarily. If the employee cannot provide evidence immediately, give them reasonable time after returning to work to do so.

Privacy And Sensitive Information

Information about a death, illness or miscarriage will often be personal and sometimes sensitive health information. If you collect or store this information (even by email), your handling needs to align with your business’ Privacy Policy and the Privacy Act obligations that apply to you.

Limit access to those who need to know, keep records secure, and think carefully before recording details in HR systems. A simple note that “evidence sighted” is usually enough for payroll compliance.

How Compassionate Leave Interacts With Other Entitlements

Bereavement situations are rarely straightforward. Employees might need time to attend the funeral now, and more time later to manage family obligations. Understanding how compassionate leave fits with other entitlements helps you respond flexibly and lawfully.

Personal/Carer’s Leave (Sick Leave)

Compassionate leave is separate from paid personal/carer’s leave. If the employee themselves becomes unwell (for example, due to grief or stress), they may use personal leave for that reason. Our guide to sick leave entitlements in NSW explains how personal/carer’s leave works, including evidence requirements.

Annual Leave

If an employee needs more time than the two days allowed (for travel or extended family commitments), they can request to use paid annual leave with your agreement. You may also agree to unpaid leave if paid leave isn’t available. Approving additional time off often builds trust and supports wellbeing in the long run.

RDOs, TOIL And Flexible Work

Where your roster allows, you can offer a rostered day off (RDO), time off in lieu (TOIL), or flexible hours to accommodate funeral arrangements or cultural practices. Make sure any flexibility is consistent with your policies and the relevant award or enterprise agreement.

Pregnancy Loss And Parental Leave

Compassionate leave covers miscarriage for the employee or their spouse/de facto partner. Where a stillbirth occurs, additional entitlements can arise under parental leave provisions. It’s important to take a compassionate, case-by-case approach and check the contractual or award entitlements for your workplace.

Mental Health And Support

Grief can significantly affect concentration, mood and performance. In addition to leave, consider practical supports such as adjusted duties, staged return to work or EAP access. Employers have Fair Work obligations regarding employee mental health, so a supportive approach is both the right thing to do and good compliance.

Set Up Clear Policies, Contracts And Processes

Having a plan before you need it reduces stress for everyone. A straightforward suite of documents and processes will help you respond consistently, lawfully and with empathy.

1) Put Your Rules In Writing

• Staff Handbook: Include a clear section on compassionate leave - eligibility, how to notify, evidence you may request, and who to contact. Keep the tone supportive.
• Workplace Policy: If you prefer standalone policies, a leave policy can cover compassionate leave alongside annual, personal/carer’s and parental leave for consistency.
• Employment Contract: Reflect the NES minimums, and add any above‑minimum entitlements you offer (e.g. additional paid days or cultural leave) so your practice matches your paperwork.

2) Create A Simple Notification Workflow

Lay out a practical “who, how and when” for leave requests:

• First contact (e.g. call or text to the manager as soon as practicable)
• Back-up contact (in case the direct manager is unavailable)
• Follow-up email when the employee is ready, with an estimated return date
• How evidence will be provided later (if requested) and who will sight it

Train supervisors on how to respond with empathy, what they can and can’t ask, and how to record leave in the system. A consistent script helps in sensitive conversations.

3) Keep Records And Payroll Settings Correct

Set up a separate leave type in your HR/payroll system for compassionate leave. This avoids mixing it with personal or annual leave and makes compliance and reporting simpler.

For permanent employees, ensure the system pays the base rate for the ordinary hours that would have been worked (no overtime, penalties or loadings). For casuals, use an unpaid leave code so time off is recorded accurately.

4) Coordinate Rosters And Backfill

Small teams feel absences more acutely. To minimise disruption:

• Identify cross-trained staff who can step in at short notice
• Use a relief or casual pool for essential coverage
• Prioritise critical tasks and defer non-urgent work until the employee returns

The aim is to support the grieving employee without putting undue pressure on the rest of the team.

5) Respect Culture And Confidentiality

Different families and cultures grieve in different ways. Some employees may need time for specific rituals or multiple gatherings. If your policy allows managers to grant extra paid or unpaid leave at their discretion, say so clearly and apply it fairly.

Be mindful of what you share with colleagues. A simple team note that the employee is on bereavement leave is usually enough. Only disclose more detail with the employee’s consent.

6) Address Misuse Fairly And Lawfully

Occasional misuse is rare, but it’s reasonable to request evidence if needed. If you suspect dishonesty and the evidence doesn’t stack up, address it under your conduct or performance framework - not on the spot. Clear contracts, a well-communicated policy and consistent management make these situations easier to handle.

7) Keep Your Documents Up To Date

Employment law changes from time to time. Build regular reviews into your compliance calendar, especially for leave policies, contracts and privacy settings. If other parts of your leave framework need attention (for example, when sick leave runs out and you’re managing returns to work), align those processes too so your approach is consistent across the board.

Key Takeaways

• Bereavement leave in NSW is governed by the national NES as compassionate leave: two days per permissible occasion, available to all employees, with pay for permanent staff and unpaid for casuals.
• Employees must notify you as soon as practicable and you may request reasonable evidence; handle any documents under your Privacy Policy and keep details confidential.
• Compassionate leave is separate from personal/carer’s leave and annual leave, but employees may ask to use other entitlements for additional time off where needed.
• Modern awards or enterprise agreements can provide more generous terms - check what applies and reflect it in your Employment Contract and policies.
• Clear processes, a supportive Staff Handbook and trained managers help you respond with empathy while staying compliant.
• Consider mental health and safe return-to-work practices - employers have obligations around mental health alongside leave entitlements.

If you’d like a consultation on setting up or reviewing your compassionate leave policy, contracts and processes, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no‑obligations chat.