Australian unpaid leave encompasses several NES entitlements — unpaid parental leave (12 months), unpaid carer’s leave (2 days per occasion), unpaid compassionate leave (2 days per occasion), and community service leave — that provide job-protected leave when paid leave is exhausted or not available. Unpaid leave is a safety net: it ensures employees can take necessary leave without losing their job, even when they have no paid leave accrued. The NES sets the floor — Modern Awards and enterprise agreements can provide more generous unpaid entitlements but cannot reduce the NES minimum.
This guide covers the NES unpaid leave types, eligibility, evidence requirements, and the employer’s obligations for each type.
Key takeaways
- The NES provides four main unpaid leave types: unpaid parental leave, unpaid carer’s leave, unpaid compassionate leave, and unpaid community service leave.
- Unpaid parental leave is 12 months per parent, extendable to 24 months by agreement.
- Unpaid carer’s leave is 2 days per occasion for emergency care of a family/household member.
- Unpaid compassionate leave is 2 days per occasion for bereavement or life-threatening illness.
- All unpaid leave types are job-protected — the employee has a right to return to their position.
NES unpaid leave types
1. Unpaid parental leave (s.74)
| Aspect | Detail |
|---|---|
| Duration | 12 months (extendable to 24 months by agreement) |
| Eligibility | 12 months of continuous service |
| Who can take it | Birth parent, adoptive parent, or partner |
| Notice | 10 weeks before the expected start date |
| Employer’s right to refuse | Can request to defer for operational reasons |
| Job protection | Employee has a right to return to their position |
The unpaid parental leave is separate from the government Paid Parental Leave (PPL) scheme. An employee can receive the PPL while on unpaid parental leave.
2. Unpaid carer’s leave (s.97)
| Aspect | Detail |
|---|---|
| Duration | 2 days per occasion |
| Eligibility | All employees, including casuals |
| Use | Emergency care for a family/household member |
| Trigger | Emergency need to provide care |
| Evidence | On request, what a reasonable person would accept |
Unpaid carer’s leave is available when the employee’s 10-day paid personal/carer’s leave is exhausted, or in an emergency where the employee needs to provide care immediately.
3. Unpaid compassionate leave (s.104)
| Aspect | Detail |
|---|---|
| Duration | 2 days per occasion |
| Eligibility | All employees, including casuals |
| Use | Bereavement or life-threatening illness of a family/household member |
| Trigger | Death, life-threatening illness, or life-threatening injury |
| Payment | Unpaid (unless Modern Award provides paid leave) |
Compassionate leave covers both the death of a family member and the period before death when a family member has a life-threatening condition.
4. Unpaid community service leave (s.108)
| Aspect | Detail |
|---|---|
| Duration | No limit |
| Eligibility | All employees |
| Use | Jury service, voluntary emergency management, other civic duties |
| Payment | Unpaid (some Awards provide paid jury service) |
| Notice | As soon as practicable |
Unpaid community service leave is available for civic duties that are not covered by the paid community service leave entitlement.
Long service leave (state-based)
Long service leave is a state-based entitlement that provides paid leave after a long period of continuous service. It is not an NES entitlement — each state has its own Long Service Leave Act. Long service leave is typically paid, but the qualifying period (usually 10 years) means it is not available to newer employees.
Employer obligations
Eight core duties apply to Australian unpaid leave management:
- Grant unpaid parental leave — 12 months per parent, subject to the 12-month service requirement
- Grant unpaid carer’s leave — 2 days per occasion for all employees
- Grant unpaid compassionate leave — 2 days per occasion for all employees
- Grant unpaid community service leave — for jury service and civic duties
- Maintain job protection — the employee has a right to return to their position
- Record leave accurately in the leave management system
- Apply evidence requirements — request evidence where reasonable, accept any reasonable form
- Do not treat the employee adversely — for taking or requesting unpaid leave
Common pitfalls
1. Not recognising the NES entitlements
Unpaid leave is a statutory right under the NES. An employer who refuses unpaid leave that meets the NES criteria is in breach.
2. Requiring specific evidence
The employer can request evidence, but cannot require a specific form. A statutory declaration is generally sufficient for most unpaid leave types.
3. Not maintaining job protection
Unpaid leave is job-protected. The employee has a right to return to their position (or a comparable position) after the leave. The employer cannot dismiss the employee for taking unpaid leave.
4. Confusing unpaid parental leave with unpaid carer’s leave
Unpaid parental leave (12 months) is for the birth or adoption of a child. Unpaid carer’s leave (2 days per occasion) is for emergency care of a family member. They are separate entitlements with different triggers.
5. Not applying Award enhancements
Some Modern Awards provide enhanced unpaid leave entitlements (e.g. additional unpaid carer’s leave). The employer must check the applicable Award and apply the more generous terms.
For more Australian context, see our guide to Australian parental leave and Australian personal leave.
A leave management system that tracks all unpaid leave types, maintains job protection records, and applies the correct evidence requirements keeps your team’s unpaid leave process compliant and straightforward.
Frequently asked questions
What unpaid leave types are available in Australia?
The NES provides unpaid parental leave (12 months), unpaid carer’s leave (2 days per occasion), unpaid compassionate leave (2 days per occasion), and unpaid community service leave.
Is unpaid leave job-protected?
Yes. All unpaid leave types under the NES are job-protected. The employee has a right to return to their position after the leave.
Can casual employees take unpaid leave?
Casual employees are entitled to unpaid carer’s leave, unpaid compassionate leave, and unpaid community service leave. They are not entitled to unpaid parental leave (which requires 12 months of continuous service).
How long is unpaid parental leave?
The NES provides 12 months of unpaid parental leave per parent, extendable to 24 months by agreement with the employer.
Can an employer refuse unpaid leave?
For unpaid parental leave, the employer can request to defer for operational reasons (subject to Fair Work Commission review). For unpaid carer’s and compassionate leave, the employer cannot refuse the leave if the NES criteria are met.
Sources
Last updated: 26 July 2026. This article is general guidance, not legal advice. Unpaid leave entitlements depend on the applicable Modern Award or enterprise agreement — confirm current terms with the Fair Work Ombudsman.