The legislation refers to “permissible occasions” for taking such leave, so the first step is to understand the scope of that term.
Section 105(1) of the Fair Work Act 2009 provides that an employee may take compassionate leave for a permissible occasion if the leave is taken to spend time with the member of their immediate family or household who has contracted or developed a personal illness or sustained a personal injury.
The definition of “immediate family” includes a grandparent. If the permissible occasion for taking compassionate leave is the contraction or development of a personal illness or the sustaining of a personal injury, the employee may take the compassionate leave entitlement for that occasion at any time while the illness or injury persists.
This means that provided the notice and evidence requirements under the Fair Work Act are met, the employee would have an entitlement to a total of two days of compassionate leave over the course of the visits to the relative (grandparent in the example above).
The leave may be taken as a single day, a continuous period of two days, or two separate periods of one day each, or any separate periods agreed between the employer and employee. This means compassionate leave is not necessarily related only to the death of an employee’s immediate family member or member of the employee’s household.
The employee would also be entitled to a further two days’ compassionate leave to attend a funeral.
“Immediate family member” means a spouse, de facto partner, parent, child, sibling, grandparent or grandchild of the employee, or a child, parent, grandparent, grandchild or sibling of a spouse or de facto partner of the employee.
"De facto partner" means a person who, although not legally married to the employee, lives with the employee in a relationship as a couple on a genuine domestic basis (whether same-sex or different sexes), and includes a former de facto partner of the employee.
Rate of pay
Section 106 of the Fair Work Act provides that an employee is to be paid at the base rate of pay for the ordinary hours of work during a period of compassionate leave. “Base rate of pay” means the employee's ordinary rate of pay, excluding incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates, or any other separately identifiable amounts.
Notice and evidence requirements
Section 107 of the Fair Work Act requires an employee to give the employer notice of taking paid compassionate leave. It must be given as soon as practicable (which may be a time after the leave has commenced) and must identify the period, or expected period, of the leave. For example, the employee could produce a copy of the letter from the family doctor stating the employee was required to give family support to the relative.