If one of your employees loses a family member, you need to know exactly what leave they are entitled to — and so do they. Compassionate and bereavement leave is one of the most emotionally charged entitlements under Australia’s National Employment Standards, and getting it wrong compounds an already difficult situation for everyone involved.
This guide covers what the Fair Work Act requires, who qualifies, how much leave is available, and the common mistakes that land employers in trouble.
Key Takeaways
- Compassionate leave is a minimum entitlement under the NES — you cannot contract out of it
- All employees qualify, including casuals (though casuals receive unpaid leave)
- Employees get 2 days per qualifying occasion, and it does not accumulate
- Employers can request evidence but cannot dictate the type of evidence an employee provides
- Refusing compassionate leave to casuals, demanding excessive documentation, or recording it against annual leave are common compliance failures
What Is Compassionate Leave Under the NES?
Compassionate leave (sometimes called bereavement leave) is a statutory entitlement under section 77 of the Fair Work Act 2009. It sits alongside other NES leave types like personal/carer’s leave and annual leave as a minimum standard that applies to every workplace in Australia.
An award, enterprise agreement, or employment contract can offer more generous compassionate leave provisions, but they can never provide less than the NES minimum.
When Does Compassionate Leave Apply?
An employee is entitled to compassionate leave when any of the following events occurs:
Death of an immediate family or household member. This is the most common trigger. The employee takes leave to attend funeral arrangements, support other family members, or grieve.
Life-threatening illness or injury of an immediate family or household member. The key phrase here is “life-threatening” — a routine medical diagnosis does not qualify. The illness or injury must genuinely pose a risk to the person’s life.
Miscarriage or stillbirth. Since 2018, compassionate leave explicitly covers miscarriage and stillbirth. The employee or their partner can take 2 days of paid compassionate leave per occurrence.
Who Gets Compassionate Leave?
Every employee in Australia is entitled to compassionate leave. That includes full-time, part-time, and casual workers. There is no minimum service period — it applies from day one.
The difference is in how the leave is paid:
- Full-time and part-time employees receive paid compassionate leave at their base rate of pay
- Casual employees receive unpaid compassionate leave — but they are still entitled to the 2 days off
This is a frequent source of confusion. Some employers incorrectly assume that casuals have no compassionate leave entitlement at all. Under the Fair Work Act, casuals get the same 2 days per occasion — it is simply unpaid rather than paid.
How Much Compassionate Leave?
Employees receive 2 days per qualifying occasion.
There are a few important details about how this works in practice:
It does not accumulate. Unlike personal/carer’s leave, which builds up over time, compassionate leave resets each time a qualifying event occurs. If an employee experiences three separate bereavements in a year, they are entitled to 2 days for each one — 6 days total.
There is no annual cap. The entitlement is tied to events, not a yearly allowance. An employee who faces multiple family tragedies in a single year has the same 2-day entitlement for each one.
It can be taken flexibly. The Fair Work Act specifies that the 2 days can be taken as a single continuous block, as two separate days, or in any other arrangement agreed between the employee and employer. If an employee wants to take one day for the funeral and another day a week later to handle affairs, that is permitted.
For part-time employees, the 2 days are calculated based on their ordinary hours. A part-time employee working 4-hour days would receive 8 hours of compassionate leave per occasion.
Who Counts as “Immediate Family”?
The definition matters. Under the Fair Work Act, “immediate family” includes:
- Spouse or de facto partner
- Child
- Parent
- Grandparent
- Grandchild
- Sibling
- Child, parent, grandparent, grandchild, or sibling of the employee’s spouse or de facto partner
This last category captures in-laws and extended family through a partnership. A mother-in-law, father-in-law, or brother-in-law all qualify.
In addition, household members are covered even if they do not fit the blood-relationship definition above. A household member is anyone who lives with the employee in the same household on a genuine domestic basis — a long-term housemate, for example, would be covered.
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Evidence Requirements: What Can You Ask For?
You can ask an employee to provide evidence that the compassionate leave is being taken for a genuine qualifying event. However, the Fair Work Act places clear limits on what you can demand.
You cannot dictate the type of evidence. An employer might prefer a death certificate or medical certificate, but the employee decides what evidence is reasonable in the circumstances. A statutory declaration, a funeral notice, a notice from a hospital, or even a written statement from a family member may all be sufficient.
The reasonableness test applies. What counts as reasonable evidence depends on the situation. Requesting a certified death certificate the day after a family member passes away, when the employee is still dealing with funeral arrangements, would likely be considered unreasonable. A funeral notice or statutory declaration would be more appropriate in that timeframe.
You cannot refuse leave just because the evidence is not what you asked for. If the employee provides evidence that a reasonable person would accept, you cannot reject it simply because it is not the specific document type you requested.
Common forms of acceptable evidence include:
- A death notice or funeral notice (newspaper or online)
- A statutory declaration from the employee
- A medical certificate or letter confirming a life-threatening condition
- A death certificate (though these can take weeks to issue, making them impractical for immediate leave)
A sensible approach: approve the leave when requested. If you have genuine concerns about the legitimacy of the claim, ask for a statutory declaration. Most disputes about compassionate leave evidence arise from employers being unnecessarily heavy-handed, not from employees making fraudulent claims.
Compassionate Leave vs Personal/Carer’s Leave
These are separate entitlements and it is important not to confuse them:
| Compassionate Leave | Personal/Carer’s Leave | |
|---|---|---|
| Source | NES, section 77 | NES, section 96 |
| Purpose | Bereavement, life-threatening illness, miscarriage/stillbirth | Personal illness, caring for a sick family member |
| Amount | 2 days per occasion | 10 days per year (pro-rata for part-time) |
| Accumulation | Does not accumulate | Accumulates year to year, no cap |
| Casuals | 2 days unpaid per occasion | 2 days unpaid per occasion |
| Cap | No cap — per occasion | Annual cap applies |
A common employer mistake is recording compassionate leave against an employee’s personal/carer’s leave balance. They are distinct entitlements. When an employee takes compassionate leave, it should be recorded separately and must not reduce their personal leave balance.
When an employee’s parent dies, the correct leave type is compassionate leave — not personal leave. Deducting it from their personal leave means the employee loses sick days they are legally entitled to keep.
Stillbirth, Miscarriage, and Baby Priya’s Law
Compassionate leave has long covered miscarriage and stillbirth. In November 2025, the Australian government strengthened protections further through Baby Priya’s Law.
Baby Priya’s Law ensures that employer-funded paid parental leave cannot be refused or withdrawn if a child is stillborn or dies shortly after birth. Previously, some employees found that their contractual parental leave entitlements were denied in these circumstances, creating significant financial and emotional hardship on top of their loss.
The compassionate leave provisions work alongside this law. An employee who experiences a stillbirth is entitled to both 2 days of paid compassionate leave and any employer-funded parental leave that would have been available if the child had been born alive. These are separate entitlements that can be taken consecutively.
For miscarriage, the entitlement extends to both the person who was pregnant and their spouse or de facto partner. This recognises the significant physical and emotional impact of pregnancy loss on both partners.
Notice Requirements
Employees must notify their employer that they need to take compassionate leave as soon as practicable. This is an important phrase in the Fair Work Act — it recognises that in a genuine emergency, notifying an employer may not be the first thing on someone’s mind.
Notice can be given after the leave has already started. An employee who receives a phone call about a family emergency at 11pm and does not contact their manager until the following morning has still complied with the requirement, provided that was practicable in the circumstances.
The notice should include the expected period of absence. This does not need to be exact — “I will need at least two days” is sufficient. Employees can update the expected duration if circumstances change.
You cannot require employees to submit a formal leave request through your standard approval system while they are dealing with a family emergency. Compassionate leave should be handled with flexibility.
Employer Mistakes to Avoid
Refusing compassionate leave to casuals
Every employee, including casuals, is entitled to compassionate leave. The only difference for casuals is that the leave is unpaid. Refusing the leave entirely, or treating it as a “favour” rather than a legal entitlement, exposes your business to an adverse action claim. A casual who started yesterday is covered — there is no minimum service period.
Demanding excessive evidence
You can ask for evidence, but you cannot demand specific documents. Insisting on a formal death certificate when a funeral notice would suffice, or demanding medical records when a statutory declaration is offered, is unreasonable. Persistent demands for evidence after an employee has provided adequate proof can constitute a breach of workplace laws.
Recording compassionate leave against annual leave
This is one of the most common compliance errors. Compassionate leave is its own entitlement. If you deduct it from an employee’s annual leave balance, you are effectively denying them their NES entitlement. Annual leave and compassionate leave are separate — always record them in different categories.
The same applies to personal leave. If your leave management system does not have compassionate leave as a separate category, you need to add one.
Failing to track per-occasion usage
Because compassionate leave does not accumulate and has no annual cap, some employers stop tracking it entirely. This creates problems if an employee later raises a dispute about how much compassionate leave they have taken, or if you need to demonstrate compliance during a Fair Work Ombudsman audit. Track every instance of compassionate leave separately, noting the date, the qualifying event, and the evidence provided.
Applying unreasonable notice expectations
Requiring an employee to submit a formal leave request through your standard approval system while they are dealing with a family emergency is unreasonable. Compassionate leave should be handled with flexibility. The employee’s obligation is to notify you as soon as practicable — not to follow your standard leave request workflow.
What If Your Award or Contract Offers More?
Many modern awards and enterprise agreements provide compassionate leave entitlements that exceed the NES minimum. Some offer 3 days instead of 2, or extend the definition of family members further. If your workplace is covered by an award or agreement with more generous terms, you must apply those terms — the NES is a floor, not a ceiling.
Check your applicable modern award or enterprise agreement before making assumptions about what your employees are entitled to. You can look up awards on the Fair Work Commission website.
Supporting Your Team Through Loss
Beyond legal compliance, how you handle compassionate leave sends a clear signal about your organisation’s values. Employees remember how their employer responded when they were grieving. A straightforward, respectful process — one that does not add bureaucratic stress to an already painful experience — builds trust and loyalty that pays dividends in retention and engagement long after the leave has ended.
For a comprehensive overview of all your leave obligations as an Australian employer, read our Fair Work leave compliance guide.