Fair Work Commission clarifies limits on excessive carer’s leave overseas
Ever wondered what your obligations would be as a business owner, a manager or HR professional if an employee requested to take extended carer’s leave to accompany a family member overseas for medical treatment? Well, in a recent decision, the Fair Work Commission (Commission) clarified that carer’s leave under the National Employment Standards (NES) requires a direct connection between the illness and the employee’s absence – a connection the Commission found was lacking in the case of Harry Singh v Department of Health.
Key facts
Mr Harry Singh was employed by the Department of Health in Victoria as a public servant. In November 2024, Mr Singh applied for carer’s leave under clause 56 of the Victorian Public Service Enterprise Agreement 2024 (Enterprise Agreement) to accompany his elderly father to India for medical treatments. Mr Singh’s father had been diagnosed with Parkinson’s disease and continued to receive online treatments from an Indian neurologist since immigrating to Australia in February 2023.
Initially, Mr Singh applied for 26 days of carer’s leave and 5 days of annual leave to cover the period from 5 March 2025 to 14 April 2025. The request was approved on 27 November 2024 before he provided supporting medical documentation. Shortly after, Mr Singh supplied a medical certificate from an Australian rehabilitation specialist stating that his father required physical assistance and supervision during overseas travel.
The Department of Health requested additional relevant documentary evidence, advising Mr Singh that while his imminent overseas leave was supported, the carer’s leave approval would remain subject to reassessment once further evidence was provided. Following further deterioration in his father’s condition, Mr Singh obtained a further letter from a rehabilitation specialist stating that his father required urgent neurological appointments and intensive physiotherapy in India. Subsequently, Mr Singh amended his request to seek 6 weeks of carer’s leave for the entire period from 6 March 2025 to 17 April 2025.
Upon his return, Mr Singh provided a letter from a physiotherapist in India confirming that physiotherapy sessions had been facilitated during the visit. After reviewing the material, the Department of Health rejected the carer’s leave request, concluding that the evidence did not meet the purpose or evidentiary requirements of clause 56 of the Enterprise Agreement. The Department of Health determined that only one specialist appointment appeared to have occurred, that there was no evidence from a registered practitioner confirming the necessity of treatment overseas, and that the physiotherapist in India did not meet the registration requirements under the Enterprise Agreement and was therefore not a ‘Registered Practitioner’ under the definition provided. The absence was thus treated as unpaid leave and Mr Singh disputed this decision.
Key findings
Deputy President Ian Masson found that Mr Singh was not entitled to paid carer’s leave under clause 56 of the Enterprise Agreement or section 97 of the Fair Work Act 2009. Deputy President Masson emphasised that both instruments require the employee’s absence to be “because of” the illness or injury of a family member, which necessitates a clear causal connection between the illness and the absence from work.
While it was not in dispute that Mr Singh’s father suffered from Parkinson’s disease and required care, the Commission found no evidence that Mr Singh required extended carer’s leave to facilitate medical care of his father outside of the family’s decision to travel overseas. The critical issue was not whether care was provided during travel, but whether the absence from work was caused by the illness itself. On the evidence, the Commission found that Mr Singh’s absence from work was caused by the family’s decision to travel to India to obtain treatment which could have been obtained in Australia.
The Commission accepted that, if treatment were not reasonably available in Australia, overseas travel may have been justified and a causal connection established. However, no evidence was produced to suggest other alternatives for neurological, or physiotherapy treatment were not readily available in Australia.
Deputy President Masson rejected the argument that the location or choice of treatment was irrelevant in considering whether to grant carer’s leave. It was held that such an interpretation would untether the entitlement from its purpose and could lead to unreasonable outcomes, allowing extended overseas travel to be characterised as carer’s leave. The Commission further found that even if the clause were construed more broadly, Mr Singh failed to provide evidence that would satisfy a reasonable person of his entitlement, particularly given the length of the absence and the overseas nature of the travel.
Key takeaways
This decision confirms that carer’s leave requires more than the existence of a family member’s illness and a need for care during travel. There must be a direct causal connection between the illness or injury of a family member and an employee’s absence from work. Where overseas travel underpins the absence, employees must demonstrate that such travel was necessary and not merely a matter of choice or convenience.
The case also reinforces an employer’s right to require robust medical evidence, particularly for extended periods of carer’s leave. Such evidence must be sufficient to satisfy a reasonable person of the entitlement and may include confirmation from treating practitioners as to why treatment cannot be obtained.
Finally, where a business initially approves a period of carer’s leave, it will not be prevented from later reassessing the entitlement where evidence provided ultimately fails to meet the requirements of the applicable industrial instrument and/or the NES.
Want to know more?
If you would like to discuss any of the matters raised in this article, please contact NRA Legal on 1800 572 679 for a confidential conversation.
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