When someone close to you dies, decoding employment law is the last thing you want to do. Here is the short version. Australia has no separate statutory entitlement called bereavement leave. Time off after a death is delivered through compassionate leave under the National Employment Standards, which the Fair Work Ombudsman itself describes as "also known as bereavement leave". The entitlement is 2 days for each occasion, paid at your base rate if you are full-time or part-time and unpaid if you are casual. This page deals with the bereavement side specifically: who counts as family when a death happens, how stillbirth and infant death are handled, what evidence an employer can ask for, and what your options are when 2 days is nowhere near enough. For the broader framework, including life-threatening illness and how this leave compares with carer's leave, see our compassionate and bereavement leave guide.
Key takeaways
- There is no standalone "bereavement leave" in the Fair Work Act. A death is covered by compassionate leave under sections 104 to 107.
- You get 2 days per death, not 2 days per year. Every qualifying death is a fresh occasion with its own 2 days.
- Full-time and part-time employees are paid at their base rate of pay for the ordinary hours they would have worked. Casuals get the same 2 days unpaid.
- Immediate family is defined in section 12 and reaches your spouse or de facto partner's parents, grandparents, children and siblings, plus step-relations and adoptive relations. Anyone who lives with you is covered as a household member.
- A stillbirth is a permissible occasion, and where a child dies in the first 24 months of life the parents may also have up to 12 months of unpaid parental leave.
- An employer can ask for evidence that would satisfy a reasonable person, such as a death notice, a funeral notice or a statutory declaration.
Australia has no separate bereavement leave entitlement
Search for bereavement leave in the Fair Work Act 2009 and you will not find it. The Act uses one label, compassionate leave, and it sits in Division 7 of Part 2-2, the part that contains the National Employment Standards. Bereavement leave and funeral leave are everyday names for the same thing. The Fair Work Ombudsman's own glossary defines compassionate leave as leave taken when a member of an employee's immediate family or household is seriously ill or dies, and lists bereavement leave as the other known term for it.
That matters in practice for two reasons. First, if you are looking for your rights in an award, a policy or a payslip code, look for compassionate leave rather than bereavement leave. Second, because it is one of the ten minimum standards listed in section 61 of the Fair Work Act, no award, enterprise agreement, contract or workplace policy can give you less than the statutory floor. Under section 55, an award or agreement can only add ancillary or supplementary terms where the effect is not detrimental to the employee compared with the NES. So an employer policy that promises "three days paid bereavement leave per year" is a problem if it is intended to replace the per-occasion entitlement, because the NES gives 2 days every single time.
Fair Work Act 2009 (Cth) ss.55, 61 and 104-107. Section 61(2)(e) lists "personal/carer's leave, compassionate leave and paid family and domestic violence leave" as one of the National Employment Standards. See also the Fair Work Ombudsman, Compassionate and bereavement leave.
What you actually get when someone dies
Section 104 sets the entitlement in one sentence: an employee is entitled to 2 days of compassionate leave for each occasion (a permissible occasion) when a member of the employee's immediate family or household dies. A death is its own occasion. If a grandparent dies in March and a parent dies in September, that is two separate occasions and two separate 2-day entitlements. There is no annual cap and no waiting period.
Compassionate leave does not accrue. Unlike personal and carer's leave, which builds up progressively as you work, there is no balance to watch. The Fair Work Ombudsman puts it plainly: employees do not accumulate compassionate leave, it is not part of their sick and carer's leave entitlement, and they can take it any time they need it. A new starter in their first week has exactly the same 2 days as a twenty-year veteran. Nothing is banked, nothing is carried over, and nothing is paid out in your final pay if you never used it.
Section 105 lets you shape the 2 days around the funeral rather than the other way round. You can take them as a single continuous 2 day period, as 2 separate periods of 1 day each, or as any separate periods you and your employer agree, which can include part-days by agreement. If you are already on annual leave when the death happens, you can switch to compassionate leave for those days instead of burning annual leave.
| Employment type | Days per death | Paid or unpaid |
|---|---|---|
| Full-time employee | 2 days | Paid at base rate for ordinary hours |
| Part-time employee | 2 days | Paid at base rate for the ordinary hours that would have been worked |
| Casual employee | 2 days | Unpaid |
Fair Work Act 2009 (Cth) s.104(1)(a)(iii) (death), s.105(2) (how the 2 days can be taken) and s.106 (payment other than for casual employees). The Fair Work Commission confirms in its National Employment Standards common defects and issuesguidance that expressing compassionate leave "as an entitlement per year rather than per occasion" is a defect, citing ss.104-106.
Who counts as immediate family or household
This is where most disputes start, because the statutory list is narrower than the people we actually grieve for, and wider than most employers assume. Section 12 of the Fair Work Act defines immediate familyof a person as a spouse, de facto partner, child, parent, grandparent, grandchild or sibling of the person, plus a child, parent, grandparent, grandchild or sibling of that person's spouse or de facto partner.
Three definitions in the same section then widen it considerably:
- Spouse includes a former spouse. Section 12 says so in five words. If your ex-husband dies, that is a permissible occasion.
- De facto partner includes a former de facto partner. The definition covers a person who lives with you in a relationship as a couple on a genuine domestic basis, whether of the same sex or a different sex, and expressly extends to a former de facto partner.
- Child includes an adopted child or step-child, under section 17, and it does not matter whether the child is an adult. Section 17 then says other family relationships are worked out on the same basis, which is how step-parents and step-siblings come within immediate family.
Because limb (b) attaches to your spouse or de facto partner, your parents-in-law, your partner's grandparents, your partner's siblings and your partner's children are all immediate family. Read together with the former-partner rule, so are your former partner's parents and siblings.
The second gateway is the household. Section 104 covers a member of the employee's immediate family ora member of the employee's household. The Act does not define household, so it carries its ordinary meaning: the people who live with you. That brings in a housemate, a partner's child living with you, or a relative staying in your home, regardless of whether they appear anywhere on the section 12 list.
| Relationship to the person who died | Covered by the NES entitlement? |
|---|---|
| Spouse, de facto partner, former spouse, former de facto partner | Yes |
| Parent, grandparent, child, grandchild, sibling | Yes |
| Step-parent, step-child, adoptive relations | Yes |
| Parent-in-law, sibling-in-law, partner's grandparent or grandchild | Yes, through the spouse or de facto partner limb |
| Housemate, or any other person who lives with you | Yes, as a household member |
| Aunt, uncle, cousin, niece, nephew who does not live with you | Not automatic. Only if the employer agrees |
| Close friend or colleague who does not live with you | Not automatic. Only if the employer agrees |
For relatives outside the list, the Fair Work Ombudsman's position is that employees can take compassionate leave for other relatives such as cousins, aunts and uncles if they are a member of the employee's household or if their employer agrees. It is worth asking, and worth checking your award on the awards page before assuming the answer is no. Some awards provide unpaid ceremonial leave, which the Fair Work Ombudsman notes can give First Nations employees the right to take unpaid leave for Sorry Business, where kinship obligations extend well beyond the section 12 list.
Fair Work Act 2009 (Cth) s.12 definitions of immediate family, spouse ("spouse includes a former spouse") and de facto partner, and s.17 (meaning of child of a person). The extension to other relatives by employer agreement is from the Fair Work Ombudsman, and the ceremonial leave point from its First Nations compassionate leave fact sheet.
Stillbirth and the death of a baby
The Act deals with these losses explicitly rather than leaving them to interpretation. Under section 104(1)(b), a permissible occasion arises where a child is stillbornand that child would have been a member of the employee's immediate family or household had they been born alive. A stillborn child is defined in section 77A(2) as a child who weighs at least 400 grams at delivery or whose period of gestation was at least 20 weeks, who has not breathed since delivery, and whose heart has not beaten since delivery. Both parents, not only the birth parent, are covered where the child would have been in their immediate family or household.
Compassionate leave is rarely the whole answer here, and the Act recognises that. Where a child is stillborn, section 77A(1) preserves the parent's entitlement to unpaid parental leave that is birth-related leave as though the child had been born alive. Where a child dies during the 24 months starting on their date of birth, the parent is still entitled to be on unpaid parental leave, and the choice about returning belongs to them: they can cancel the leave in writing before it starts, or give at least 4 weeks' written notice of a return date if it has already started, with an earlier date possible by agreement. An employer cannot require them back or cancel the leave. Section 333X also generally prevents an employer refusing or cancelling employer-funded paid parental leave because a child is stillborn or dies, subject to limited exceptions, for a stillbirth or death on or after 7 November 2025.
In short, a bereaved parent may hold three things at once: 2 days of compassionate leave per occasion, up to 12 months of unpaid parental leave (or up to 24 months with employer agreement), and any employer-funded paid parental leave. Compassionate leave can also be taken while on unpaid parental leave.
Fair Work Act 2009 (Cth) s.104(1)(b), s.77A(1) to (6) and s.333X. See also the Fair Work Ombudsman, Stillbirth, premature birth or death of a child and Understanding parental leave following the loss of a pregnancy or a child.
Casual employees: same 2 days, no pay
Casuals are not left out. The National Employment Standards provide all employees, including casuals, with an entitlement to compassionate leave, and the Fair Work Commission treats an agreement that fails to provide compassionate leave for casual employees as a defect: casuals are entitled to 2 days' unpaid compassionate leave for each occasion.
The difference is payment. Section 106 requires the employer to pay "an employee, other than a casual employee" at their base rate of pay for their ordinary hours of work in the period, and the note to that section states plainly that for casual employees compassionate leave is unpaid leave. That reflects the casual loading already built into the hourly rate.
For full-time and part-time employees, base rate under section 16 is the rate for your ordinary hours excluding incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates, and any other separately identifiable amounts. If the two days you take fall on shifts that would have attracted weekend penalties, you are paid the base figure, not the penalty figure. A part-time employee is paid for the ordinary hours they would actually have worked on those days, so two rostered 5-hour days is 10 hours of pay, not 15.2.
Estimate your accrued personal and carer's leave balance from your hours and length of service, so you know what you can fall back on if 2 days is not enough.
Notice and evidence: what an employer can ask for
Section 107 sets a low, humane bar. You must give notice of the leave as soon as practicable, and the Act expressly contemplates that this may be a time after the leave has started. You must tell your employer the period, or expected period, of the leave. A text message on the morning you were meant to start a shift is enough to meet the notice requirement in most workplaces.
On evidence, section 107(3)(c) allows the employer to require evidence "that would satisfy a reasonable person" that the leave is being taken for a permissible occasion. There is no prescribed document. The Fair Work Ombudsman gives a death or funeral notice or a statutory declaration as examples, and its plain-language fact sheet adds a medical certificate. In practice any of the following will normally do:
- a death notice or funeral notice from a newspaper or funeral director's website;
- an order of service or funeral booklet;
- a death certificate or a medical certificate;
- a statutory declaration, which is a written statement you declare to be true and sign in front of an authorised witness.
Two cautions. First, the request itself must be reasonable, and a request that intrudes further than needed to establish a permissible occasion is open to challenge. Second, section 107(4) says an employee is not entitled to take leave under Division 7 unless they comply with the section, so ignoring a properly made request can cost you the entitlement. Section 107(5) also lets a modern award or enterprise agreement set out the kind of evidence required, so check your instrument on the awards page.
Fair Work Act 2009 (Cth) s.107, in particular s.107(2)(a) (notice as soon as practicable, which may be after the leave has started), s.107(3)(c) (evidence that would satisfy a reasonable person), s.107(4) and s.107(5). Examples of acceptable evidence from the Fair Work Ombudsman sick and carer's leave and compassionate leave fact sheet.
When 2 days is not enough
For most people it is not. Two days rarely covers a death, a funeral, the estate paperwork and the grief that follows. The NES does not extend the 2 days, but it does not stop you combining it with everything else you hold. The Fair Work Ombudsman's own advice is to talk to your employer about other types of leave or time off, and it lists annual leave, personal or carer's leave, annual leave taken in advance, time off in lieu, and unpaid leave.
- Annual leave. Your employer can only refuse a request if the refusal is reasonable, and there is no minimum or maximum block, so a few extra days is a normal request. Some awards and agreements also allow annual leave in advance if your balance is empty.
- Personal leave. If grief is making you unfit for work, that is personal illness territory rather than compassionate leave, and it draws on your accrued balance. See personal leave versus sick leave.
- Unpaid leave. Available where your employer agrees. Note that, apart from unpaid community service leave, periods of unpaid leave do not count towards your length of service, so a long unpaid absence can slow the accrual of paid leave.
- Award and agreement extras. Some instruments provide additional compassionate leave, and some provide unpaid ceremonial leave. Start at awards.
If the death is overseas
Section 104 says nothing about where the person died or where the funeral is held. The trigger is the relationship, not the geography, so a parent dying in Manila, Athens or Lagos is a permissible occasion in exactly the same way as a parent dying in Melbourne. What the Act does not do is give you travel time. Two days will not cover a flight to the other side of the world, so in practice employees combine the 2 days of compassionate leave with annual leave and agreed unpaid leave, and negotiate the block in one conversation rather than three.
Evidence works the same way. Section 107(3) asks only for evidence that would satisfy a reasonable person, so a death notice or funeral notice from an overseas publication, an overseas death certificate, or a statutory declaration setting out the facts should all be capable of meeting it. If documents are in another language, offer a translation rather than waiting to be asked.
Employer discretion and above-NES policies
Everything above is the floor, not the ceiling. Awards, enterprise agreements and other registered agreements can provide additional entitlements to compassionate leave, and under section 55(4) they may supplement the NES so long as the effect is not detrimental to the employee in any respect. Many enterprise agreements and workplace policies do better than 2 days, and many employers exercise discretion to extend compassionate leave to a cousin, an aunt, an uncle or a close friend even though the NES does not require it. A policy can always be more generous. It simply cannot go below 2 days per occasion, cannot convert a per-occasion entitlement into a yearly allowance, and cannot exclude casuals from the unpaid entitlement.
A worked example
Priya works part-time, three days a week (Monday, Wednesday and Friday), 6 ordinary hours a day, at a base rate of $32.00 an hour. She also regularly picks up a Saturday shift paid at a penalty rate. Her father-in-law, her husband's father, dies on a Tuesday. The funeral is the following Monday.
Is he immediate family? Yes. Section 12 includes a parent of the employee's spouse. Priya does not need him to have lived with her.
How much leave? 2 days for this occasion. She takes the Wednesday to be with her husband and the following Monday for the funeral, which section 105(2)(b) allows as 2 separate periods of 1 day each.
How much pay? Each day is 6 ordinary hours. 2 days × 6 hours × $32.00 = $384.00, paid at her base rate. The Saturday penalty rate is irrelevant because it is excluded from base rate under section 16.
What if she needs more? Priya asks for the Friday in between as annual leave. Her employer can only refuse if the refusal is reasonable.
And if it happens again? If Priya's own grandmother dies four months later, that is a separate permissible occasion and a fresh 2 days. There is no annual cap.
Frequently asked questions
Is bereavement leave paid in Australia?
Yes for full-time and part-time employees. The 2 days are paid at your base rate of pay for the ordinary hours you would have worked during the leave, excluding bonuses, loadings, allowances, overtime and penalty rates. Casual employees receive the same 2 days but unpaid.
How many days of bereavement leave am I entitled to?
Two days for each death, under section 104 of the Fair Work Act. It is not a yearly allowance. Each qualifying death is a separate permissible occasion with its own 2 days, and there is no limit on how many occasions you can have in a year.
Can I take bereavement leave for a grandparent or a parent-in-law?
Yes to both. Grandparents are named in the section 12 definition of immediate family, and a parent of your spouse or de facto partner is covered by the second limb of that definition. The same applies to your partner's grandparents, siblings and children.
What about an aunt, uncle, cousin or close friend?
Not automatically. They are only covered if they were a member of your household, meaning they lived with you, or if your employer agrees. Many employers do agree, and some awards and agreements go further, so ask rather than assume.
Do I have to take the 2 days in a row?
No. Section 105(2) lets you take the leave as a single continuous 2 day period, as 2 separate periods of 1 day each, or as any separate periods you and your employer agree, which can include part-days by agreement.
Does bereavement leave come out of my sick leave balance?
No. Compassionate leave is a separate entitlement. It does not accumulate, it is not part of your sick and carer's leave balance, and taking it leaves your personal and carer's leave untouched. It also cannot be cashed out and is not paid out when your employment ends.
Can my employer refuse bereavement leave?
Not where the statutory conditions are met and you comply with section 107. An employer can require evidence that would satisfy a reasonable person, and if you do not give the notice or the requested evidence you may lose the entitlement, but an employer cannot simply decline a valid request. If you believe your entitlement has been denied, the FAQ and the Fair Work Ombudsman are the places to start.
Where does bereavement leave sit alongside other leave types?
It is one of several NES leave entitlements that people often confuse. See the general framework in our compassionate and bereavement leave guide, the caring entitlement in carer's leave, and the full map in other leave types. The separate 10-day entitlement for employees experiencing family or domestic violence is covered in family and domestic violence leave.
Author & reviewer
Sarah has spent over a decade advising Australian SMBs on Fair Work, NES compliance, and payroll. Based in Sydney, she has worked across hospitality, retail and professional services.