The Fair Work Commission has shed further light on the threshold for assessing an “unexpected emergency” for the purpose of carer’s leave. The case reinforces previous EMA Consulting recommendations.
Carer’s leave is often wrongly taken to provide an employee with the right to take paid time off in any circumstance that their children need to be looked after. The National Employment Standards only provide this entitlement where a member of the employee's immediate family, or a member of the employee's household, requires care or support because of:
(i) a personal illness, or personal injury, affecting the member; or
(ii) an unexpected emergency affecting the member.1
To qualify under subsection (ii), there are two elements that must both be met: that there is an emergency and that it is unexpected. During the COVID pandemic, many child care arrangements were disrupted. The extent to which such a disruption constituted an “unexpected emergency” was recently tested in Daniel Moore v Ballarat Health Services.2
The decision was about entitlements under an enterprise agreement, however the relevant provisions were the same as those in the National Employment Standards.
The employee’s mother usually looked after the children on Tuesdays. One weekend she received medical recommendations to isolate at home and therefore could not see or care for her grandchildren. This continued for a period of eight weeks.
While the Commission found that initially this could be characterised as an unexpected emergency affecting the children, it did not follow that this applied to the entire period. The Deputy President stated:
I consider that the only occasion upon which Mr Moore was required to look after his children capable of coming within the definition of an ‘unexpected emergency’ was 24 March 2020. Thereafter, I do not consider the ongoing requirement to have caring arrangements in place for Mr Moore’s children was ‘unexpected’ or as a result of an ‘emergency.’ From the weekend of 21- 22 March 2020, Mr Moore knew he would have to make new caring arrangements for his children on Tuesdays. He was on notice from that time, the requirement was henceforth not unexpected and any initial emergency had passed. As Mr Moore himself stated, he could have looked into other options such as his partner altering her work hours or looking after the children while working from home, or he himself working from home, or the utilisation of childcare for an extra day.
It is important to understand that each situation will be different, depending on the facts. In other cases, it has been found that the objective availability of other alternatives will be relevant to determining what is a reasonable period of “emergency” when child care arrangements are disrupted.
Allowing access to carer’s leave that does not meet the criteria
Employers often allow employees to access carer’s leave for reasons that do not meet the statutory criteria. This is risky. In this case, the employee had already been paid “carer’s leave” for some of the Tuesdays. The outcome was that because such days were not in fact carer’s leave they must be reaccredited to him for future lawful use.
Lawful recovery of the resulting overpayment is problematic in such cases, and we recommend that employers do not permit these arrangements without being aware of the risk.
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If you require further information or specific advice about your situation, please contact one of our consultants.
1 Fair Work Act 2009 (Cth), s 97