Know Your Rights - Special Leave with Pay - Care of Sick Child

06 December 2016

The Commissioner for Public Sector Employment has reissued Determination 3.1 "Employment Conditions, Hours of Work, Overtime and Leave". The new determination is operative from 1 July 2016.

Special Leave With Pay

A change to this determination is that Special Leave With Pay is now divided into three categories. A table explaining this is on page 42 of the Determination. This Determination also explains what categories can be applied for
prior to accessing Family Carer's Leave, in particular “Care of Sick Child who is a dependent.”

The following is written on page 49 of the Determination:

Care of Sick Child who is a Dependant”

"An employee may make an application for special leave with pay for this purpose and may be granted for up to three days in a service year. A chief executive or delegate should be satisfied that it is not practical or reasonable for alternative arrangements to be made. In cases where a suitable alternative does exist but it would not be reasonable to expect it to operate immediately one day's special leave with pay may be granted.

South Australian Industrial Relations Commission decision 1591/1996 regarding an Application to Vary the Department for Education and Children's Services Enterprise Agreement 1996 provides further explanation on when an employee is able to make an application for special leave with pay in order to care for a sick child who is a dependent. It provides that there is no requirement to use Personal Leave to care for a sick child prior to accessing this type of leave. Such leave is not accumulative from year to year and does not reduce the entitlement to any other form of leave.

For the purpose of this Determination a sick child means a child who needs direct care and support due to injury or illness.

Note: an employee is able to make an application for special leave with pay to care for family member (other than for a dependent child) via “urgent pressing necessity” provisions stated in part 2c) of this Section.”

This is not a new entitlement but a better explanation of what already applied.

The origins of this is clarification that prior to the inclusion of Family Carer's Leave in the Enterprise Agreement in 1996 (i.e. the availability to access 10 days Family Carer's Leave per annum from your accrued sick leave balance) certain provisions applied for accessing Special Leave With Pay. The decision of the Court was that Family Carer's Leave could not over-ride the previous provisions, which included up to three days "Caring For a Sick Child". In practi
ce this means that an employee's application for up to three days Special Leave “Caring For a Sick Child" providing if it fulfils the requirements as stated in this CD3.1, should be granted. It is not for the employer to unilaterally determine what type of leave an employee should take over another.

This is further confirmed in your Enterprise Agreement under Family Carer's Leave, Clause 9.6.3, where it states “The ability to access this leave does not in any way limit an employee's right to apply for special leave in accordance with arrangements provided elsewhere for this leave”.

Similar provisions appl
y for “Urgent and Pressing” necessity if looking after another family member, e.g. spouse or partner.

The full Determination 3.1 is available on the Commissioners for Public Sectors website, "www.publicsector.sa.gov.au" along with other Determinations and Standards including the newly issued Guideline on Domestic Violence which explains an increased entitlement to leave for any government employee who is experiencing domestic violence and needs support and such leave to support them.