Alex is Sprintlaw’s co-founder and principal lawyer. Alex previously worked at a top-tier firm as a lawyer specialising in technology and media contracts, and founded a digital agency which he sold in 2015.
When someone in your team experiences a death in the family, a serious illness, or a stillbirth or miscarriage, the last thing they need is a confusing back-and-forth about whether they can take time off.
For you as a small business owner, compassionate leave (sometimes searched as “compassion leave”) can also feel tricky because it sits at the intersection of legal compliance, payroll, and supporting your people in a genuinely difficult moment.
The good news is the rules are relatively clear once you know where to look: in most cases, compassionate leave under the National Employment Standards (NES) is 2 days per occasion, and it can be paid or unpaid depending on whether the employee is casual or permanent.
Below, we’ll walk you through what compassionate leave is in Australia, who gets it, whether it’s paid, how many days apply, what evidence you can request, and how to handle the process in a way that’s compliant and respectful.
What Is Compassionate Leave In Australia?
Compassionate leave is a minimum workplace entitlement under the National Employment Standards (NES) in the Fair Work Act.
It’s designed to allow an employee to take time off when they experience certain serious personal circumstances, including:
- Death of a member of the employee’s immediate family or household
- Life-threatening illness or injury of a member of the employee’s immediate family or household
- Stillbirth (where the employee has a stillbirth, or the employee’s spouse or de facto partner has a stillbirth)
- Miscarriage (where the employee has a miscarriage, or the employee’s spouse or de facto partner has a miscarriage)
In everyday terms, people will often call this “bereavement leave” or “funeral leave” (for example, “bereavement leave Fair Work”), but “compassionate leave” is the legal entitlement under the NES.
Why This Matters For Employers
As an employer, compassionate leave is a legal minimum. That means:
- you need a process to handle requests quickly (often on short notice)
- you need to pay the correct amount (where paid leave applies)
- you need to avoid inadvertently breaching the NES, an award, or an enterprise agreement
- you’ll want documentation that supports the leave if you’re audited or a dispute arises
It’s also worth remembering compassionate leave requests often arise during high-stress situations. A clear and kind process protects your business and supports your team.
Who Can Take Compassionate Leave (Including Casuals)?
Under the NES, compassionate leave applies to all employees, including:
- full-time employees
- part-time employees
- casual employees
This answers a very common question employers have: do casuals get bereavement leave? Yes, casual employees can take compassionate leave - but it is generally unpaid (we’ll explain that in detail below).
Immediate Family Or Household: What Does That Mean?
Compassionate leave can be taken when the relevant event affects someone in the employee’s immediate family or household. The practical point for employers is that “immediate family” is broader than many people assume.
In plain terms, it generally includes close relatives such as:
- spouse or de facto partner
- child (including adopted, stepchild, etc.)
- parent
- grandparent
- grandchild
- sibling
It also extends to certain relatives of the employee’s spouse/de facto partner.
“Household” is usually about living arrangements - for example, someone who lives with the employee may qualify even if they are not “immediate family” in the traditional sense.
Can An Employee Be Required To Use Annual Leave Instead?
Generally, you shouldn’t treat compassionate leave as “optional” or require an employee to use annual leave first. Compassionate leave is a separate minimum entitlement.
Sometimes an employee may ask to use annual leave to extend their time away, or you might agree on additional unpaid leave. If you’re dealing with broader leave questions across your workplace, it can help to keep your leave processes consistent with your Workplace Policy documents.
How Many Days Of Compassionate Leave Do Employees Get?
The most searched question here is: how many days of compassionate leave apply (sometimes phrased as “compassionate leave how many days”).
Under the NES, the entitlement is:
- 2 days of compassionate leave per occasion
“Per occasion” is important. Compassionate leave isn’t usually a capped “per year” entitlement. So if you’re asking “how many compassionate leave days per year”, the answer is: there isn’t a simple annual cap under the NES - it’s 2 days each time a qualifying event happens.
Do The 2 Days Have To Be Taken Together?
Not always.
Compassionate leave can generally be taken:
- as a single continuous 2-day period, or
- as 2 separate days
For example, an employee might take one day immediately after learning of a death, and a second day on the day of the funeral. As a practical step, it’s good to ask (sensitively) how they want to use the two days so you can roster and pay correctly.
Can Employees Take More Than 2 Days?
Yes, but the extra time is not necessarily “compassionate leave” under the NES.
Additional leave might come from:
- a modern award or enterprise agreement that provides a better entitlement
- your business’ own policies (for example, a more generous compassionate leave policy)
- annual leave (by agreement)
- unpaid leave (by agreement)
If your staff are covered by an award, it’s worth checking whether the award includes additional rules around bereavement/compassionate leave, pay, minimum engagement, and rostering.
Is Compassionate Leave Paid? (And What About Unpaid Compassionate Leave?)
Another common search is whether compassionate leave is paid (or “do you get paid for compassionate leave”). The answer depends on the employee type.
Full-Time And Part-Time Employees: Paid Compassionate Leave
For full-time and part-time employees, compassionate leave is generally paid at the employee’s base rate of pay for the ordinary hours they would have worked during the period.
In payroll terms, this is not typically treated as overtime or a special loading - it’s paid like ordinary hours would have been paid (subject to any applicable award or agreement details).
If you want a broader refresher on handling leave payments in payroll (particularly where multiple leave types overlap), it can be helpful to review how leave is usually treated in Annual Leave Payments.
Casual Employees: Unpaid Compassionate Leave
Casual employees are entitled to compassionate leave, but it’s generally unpaid compassionate leave.
This can feel counterintuitive for employers because casuals don’t have paid annual leave or paid personal/carer’s leave either - but they still have access to certain NES entitlements, including compassionate leave (as unpaid leave).
If your business relies heavily on casual staff, it’s a good idea to ensure your casual arrangements are properly documented in an Employment Contract that matches the reality of the engagement, including how leave requests and shift cover are handled.
Do You Have To Pay Super On Compassionate Leave?
Paid compassionate leave is often treated like ordinary pay, and in many payroll setups it may be counted as ordinary time earnings for superannuation purposes. However, superannuation obligations can be nuanced depending on the payment type, how the employee is classified, and any applicable award or agreement.
This section is general information only and isn’t tax or financial advice. If you’re unsure, it’s worth confirming the correct treatment with your accountant, payroll provider, or the ATO guidance, and making sure your employment documents reflect how you handle leave and pay consistently.
How To Manage Compassionate Leave Requests (Without Creating Risk)
Even when the entitlement is clear, compassionate leave can become messy in practice if you don’t have a simple internal process.
Here’s a practical approach that usually works well for small businesses.
1) Keep The Request Process Simple (And Human)
Employees often won’t have the time or emotional bandwidth to follow a formal request process in the moment.
A good baseline approach is:
- allow the employee to notify you by phone, text, or email as soon as practicable
- ask them to tell you (at a high level) whether it’s due to a death, serious illness/injury, miscarriage, or stillbirth
- confirm the dates (or likely dates) they need off, knowing this may change
From there, you can record it in writing (for example, an email summarising what was agreed).
2) Know What Evidence You Can Ask For
As an employer, you can request evidence that would “satisfy a reasonable person” that the employee is entitled to compassionate leave.
Common examples include:
- a funeral notice or order of service
- a death certificate (not always immediately available)
- a medical certificate or letter from a treating practitioner (for a life-threatening illness/injury scenario)
- documentation from a hospital or medical practitioner relating to miscarriage or stillbirth (where relevant, and whether the employee or their spouse/de facto partner experienced it)
Be careful about requesting “proof” in a way that feels intrusive. The legal test is reasonableness, and the situation is sensitive.
It can help to build this into your written processes so your managers aren’t making it up as they go. Many businesses include this in a staff handbook or leave policy, alongside other workplace rules - for example, in a Staff Handbook supported by consistent internal procedures.
3) Check Whether An Award Or Agreement Changes The Rules
The NES provides minimum entitlements, but employees may have additional rights under:
- a modern award
- an enterprise agreement
- an employment contract (if it provides better conditions)
Before you finalise pay and leave coding, it’s worth confirming award coverage and any special requirements (for example, how “ordinary hours” are calculated for shift workers, or whether additional paid days apply).
4) Update Rosters And Communicate Clearly
Compassionate leave often affects rosters at short notice. From a risk-management perspective, the key is to be consistent and avoid knee-jerk reactions (like threatening disciplinary action for non-attendance where the employee is actually entitled to take leave).
A simple approach is:
- confirm the leave in writing (even a short email)
- update the roster and payroll notes
- tell the employee who to contact if dates change
- keep internal communications respectful and minimal (only those who need to know)
5) Make Sure Your Employment Documents Match Your Practice
Many disputes don’t happen because an employer intentionally refuses compassionate leave - they happen because the business doesn’t have clear documents, managers apply different rules, or payroll codes leave incorrectly.
At a minimum, it helps to have:
- a clear Employment Contract for each employee (and a separate version for casuals where needed)
- a consistent Workplace Policy suite covering leave requests, evidence, and record-keeping
- manager guidance on how to handle sensitive leave, privacy, and communications
This also helps you respond confidently if an employee asks “how long is compassionate leave” or “how many days is compassionate leave” - because your internal process will align with the NES minimums, and clearly show any extra entitlements you choose to provide.
6) Avoid Adverse Action Risks
Employees have workplace rights, including taking (or proposing to take) compassionate leave. Taking negative action against an employee because they took compassionate leave can create legal risk.
That doesn’t mean you can never manage performance or address operational issues - it just means you need to separate legitimate business issues from the employee’s lawful use of leave.
If you’re unsure in a specific situation (especially where there’s a pattern of absences, or a dispute about whether the person is “immediate family”), it’s worth getting advice before you act.
Key Takeaways
- Compassionate leave (often searched as “compassion leave”) is a minimum entitlement under the NES for certain serious personal events, including death, life-threatening illness/injury of immediate family/household, and situations like stillbirth or miscarriage (where the employee or their spouse/de facto partner experiences it).
- If you’re wondering how many days of compassionate leave apply, under the NES it’s generally 2 days per occasion, not a fixed “per year” cap.
- If you’re asking whether compassionate leave is paid: it’s generally paid for full-time and part-time employees, and generally unpaid for casual employees.
- You can request reasonable evidence (for example, a funeral notice or medical certificate), but your approach should be sensitive and consistent.
- Award coverage, enterprise agreements, or your own policies may provide additional entitlements, so it’s worth checking before finalising payroll and leave coding.
- Clear employment documents and policies help you handle compassionate leave quickly and fairly, while reducing the risk of payroll mistakes and disputes.
If you’d like help putting the right leave processes in place (or reviewing your employment contracts and policies), you can reach Sprintlaw at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.
