Few things are harder than losing someone close, or hearing that a family member has a life-threatening illness or injury. Australian workplace law recognises this through compassionate leave, also known as bereavement leave. It is one of the National Employment Standards, so it applies to every employee in the national system, including casuals. This guide explains what the leave covers, how the 2 days per occasion rule works, who counts as immediate family, how it is paid, how stillbirth and miscarriage are treated, and how it differs from carer's leave and paid family and domestic violence leave. A death in the immediate family is covered in more depth in bereavement leave.
Key takeaways
- You get 2 days of compassionate (bereavement) leave for each permissible occasion, not a yearly cap.
- It applies when an immediate family or household member dies, or contracts or develops a life-threatening illness or injury.
- Full-time and part-time employees are paid at their base rate of pay; casuals take it unpaid.
- It also covers a stillbirth, and a miscarriage experienced by you or your current spouse or de facto partner.
- Source: Fair Work Act 2009 (Cth) ss.104-106 and the Fair Work Ombudsman.
What compassionate leave is
Compassionate leave, also called bereavement leave or funeral leave, is a minimum entitlement guaranteed by the National Employment Standards. Every employee covered by the national workplace relations system has it, whether full-time, part-time or casual. The core rule is simple: you are entitled to 2 days each time a qualifying event happens, which the law calls a permissible occasion. Because it is a national minimum, an award or enterprise agreement can add to it but never take it away. Under the Fair Work Act 2009it is separate from annual leave and from sick and carer's leave, so using it does not eat into any other balance.
When you can take it: a death or a life-threatening illness or injury
Compassionate leave is not only for after a death. You can take it when an immediate family or household member is still alive but seriously unwell. Under the Act, a permissible occasion arises when a member of your immediate family or household:
- contracts or develops a personal illness that poses a serious threat to their life;
- sustains a personal injury that poses a serious threat to their life; or
- dies.
It also arises if a baby who would have been in your immediate family or household is stillborn, or if you or your current spouse or de facto partner has a miscarriage. So a life-threatening diagnosis for a parent, child or partner qualifies just as a death does, and each qualifying event is its own permissible occasion, which is why the leave is counted per occasion rather than per year.
Who counts as immediate family and household
Compassionate leave can only be used for someone in your immediate family or your household. Under the Fair Work Act your immediate family includes your:
- spouse or former spouse;
- de facto partner or former de facto partner;
- child, parent, grandparent, grandchild or sibling; and
- a child, parent, grandparent, grandchild or sibling of your spouse or de facto partner (including a former spouse or partner).
Immediate family also takes in step-relations (such as a step-parent or step-child) and adoptive relations. A household member is anyone who lives with you, related or not, so a housemate who shares your home is covered. For relatives outside this list who do not live with you, such as cousins, aunts and uncles, you can still take the leave if your employer agrees. Our leave glossary explains immediate family, de facto partner and permissible occasion in plain English.
How many days: per occasion, not per year
The entitlement is 2 days per permissible occasion, with no annual limit on how many occasions you can claim. Compassionate leave does not accumulate from year to year and is not part of your sick and carer's leave pool, so an unused day cannot be banked or carried forward. You can take the leave in whichever way suits the situation:
| How you can take the 2 days | What it looks like |
|---|---|
| A single continuous block | Two days in a row, for example the day of and the day after a funeral |
| Two separate single days | One day now and one day later within the same occasion |
| Any other pattern you both agree | Separate periods, including part-days, as agreed with your employer |
Where the occasion is a life-threatening illness or injury, you can take the 2 days at any time while it persists. And if you are already on another leave type (for example annual leave) when a qualifying event happens, you can switch to compassionate leave instead.
How it is paid, and what casuals get
Full-time and part-time employees are paid for compassionate leave at their base rate of pay for the ordinary hours they would have worked during the leave. The base rate does not include incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates. Casual employees take compassionate leave unpaid, reflecting their casual loading. Compassionate leave cannot be cashed out, and it is not paid out if unused when your employment ends.
Stillbirth and miscarriage
The law makes clear that compassionate leave covers the loss of a pregnancy, and it is worded with care. You can take compassionate leave if a baby who would have been a member of your immediate family or household is stillborn, which the Fair Work Ombudsman describes as the birth of a baby of at least 400 grams or 20 weeks gestation who has not breathed or had a heartbeat since delivery. You can also take it if you, or your current spouse or de facto partner, has a miscarriage, the spontaneous loss of an embryo or foetus before 20 weeks of pregnancy. The miscarriage limb does not apply to a former spouse or former de facto partner, and where a miscarriage results in a stillborn child the stillbirth rules apply instead. Parents in this situation may also have rights to parental leave.
Notice and evidence
To be entitled to compassionate leave you must give your employer notice as soon as you can. Because these events are sudden, the law accepts that notice may be given after the leave has already started. You should say how much leave you are taking, and when. Your employer can ask for reasonable evidence of the reason, and a death or funeral notice or a statutory declaration will usually satisfy that request. If you do not provide evidence when it is properly asked for, you may not be entitled to the leave. These notice and evidence rules come from section 107 of the Fair Work Act and apply to paid and unpaid compassionate leave alike.
How it differs from carer's leave and paid family and domestic violence leave
Compassionate leave is easy to confuse with two other entitlements, but each has a different trigger and balance.
- Personal and carer's leavecovers when you are unwell yourself, or caring for a family or household member whose illness, injury or emergency is not life-threatening. It draws on an accruing 10-day yearly balance, unlike compassionate leave's fresh 2 days per occasion. See carer's leave and personal leave versus sick leave.
- Paid family and domestic violence leave is a separate 10 days per year for employees experiencing family or domestic violence, with its own privacy rules, and has nothing to do with bereavement. See family and domestic violence leave.
- Compassionate (bereavement) leave is triggered by a death, a life-threatening illness or injury, a stillbirth or a miscarriage, and gives 2 days each time without accruing.
Fair Work Act 2009 (Cth) ss.12, 16, 104-106 and s 107. See the Fair Work Ombudsman, Compassionate and bereavement leave and the legislation.
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.
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.
Common questions
Is compassionate leave 2 days a year or 2 days each time?
It is 2 days for each permissible occasion, not a yearly allowance. Every qualifying event is a separate occasion with its own 2-day entitlement, so there is no annual cap.
Do casual employees get compassionate leave?
Yes. Casuals have the same entitlement to 2 days per occasion, but it is unpaid. Only full-time and part-time employees are paid, at their base rate for the ordinary hours they would have worked.
Can I take compassionate leave for a friend or a cousin?
Only if that person lives with you and so counts as a household member, or if your employer agrees. Cousins, aunts and uncles are not automatically immediate family.
Can my employer ask for proof?
Yes. An employer can ask for reasonable evidence, such as a death or funeral notice or a statutory declaration. If you do not provide it when properly asked, you may not get the leave. See our frequently asked questions for more on notice and evidence.
Does compassionate leave come out of my sick leave?
No. It is a standalone entitlement that does not accumulate and is not part of your sick and carer's leave balance, so taking it leaves your personal and carer's leave untouched.
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.