Sick leave in Queensland and employer obligations under the National Employment Standards

If you employ full-time or part-time staff in Queensland, you are legally required to provide them with paid sick leave, to pay it at the right rate, and to handle their absences fairly. The rules are not set by a Queensland-specific statute for most businesses. They come from the National Employment Standards (the NES) in the Fair Work Act 2009 (Cth), which apply nationally, with a separate state framework for Queensland government and council employers under the Industrial Relations Act 2016 (Qld).

Getting sick leave wrong is not a minor payroll error. Underpaying leave can mean back-pay, compensation orders, and penalties of tens of thousands of dollars per contravention. Since January 2025, deliberately failing to pay an employee what they are owed, including paid leave, is a criminal offence carrying up to 10 years' imprisonment.

This guide sets out who the obligation applies to, how much leave you must provide and pay, what evidence you can lawfully ask for, and what happens if you do not comply.

Which Queensland employers owe sick leave obligations?

Almost every private sector employer in Queensland sits in the national workplace relations system. That includes companies, but also partnerships, sole traders and trusts, because Queensland has referred its industrial relations powers for private sector employers to the Commonwealth. Section 12 of the Industrial Relations Act 2016 (Qld) explains the split: the Queensland Act applies only to employers and employees that the Fair Work Act does not already cover.

In practice, Queensland breaks down like this:

• Private sector employers: in the national system, so the NES under the Fair Work Act applies to their employees
• Queensland government and related bodies: in the state system, including departments, public service entities and statutory bodies, so the Industrial Relations Act 2016 (Qld) applies instead
• Local councils: in the state system, covered by state awards such as the Queensland Local Government Industry Award
• Casual employees: not entitled to paid sick leave under the NES, but entitled to unpaid carer's leave (2 days per occasion) and unpaid compassionate leave (2 days per occasion)

Awards, enterprise agreements and employment contracts can give employees more generous sick leave than the statutory minimum, but they cannot provide less. The Fair Work Ombudsman's fact sheet states that no award, agreement, contract or policy can undercut the NES.

The core obligation: how much paid personal/carer's leave to provide

Under the NES, sick leave sits inside a single entitlement called paid personal/carer's leave. Under s 96 of the Fair Work Act 2009 (Cth), a full-time employee is entitled to 10 days of paid personal/carer's leave for each year of service, and part-time employees accrue the same entitlement on a pro-rata basis. The entitlement can be calculated as 1/26 of the employee's ordinary hours of work in a year.

Three details of that accrual rule catch employers out:

• It accrues in hours, not days: Leave builds up progressively according to the employee's ordinary hours of work. A full-time employee working 38 hours a week accrues 76 hours a year. A part-time employee working 19 hours a week accrues 38 hours. If your payroll system tracks leave in calendar days, it will drift out of line with the legal entitlement.
• It carries over year to year: Unused paid personal/carer's leave accumulates from one year to the next, and it starts accruing from the employee's first day of work.
• It keeps accruing on paid leave, but not unpaid leave: Periods of paid leave such as annual leave and long service leave count as service for accrual purposes. Under s 22 of the Fair Work Act, unpaid leave and unauthorised absences do not count as service, so no personal leave accrues during them.

Two more rules affect how the balance is used:

• Public holidays are not deducted: If a period of paid personal/carer's leave includes a public holiday, s 98 treats the employee as not being on personal leave that day. The public holiday is paid as a public holiday and does not reduce the sick leave balance.
• Unused leave is not paid out on termination: The NES requires accrued annual leave to be paid out when employment ends, but there is no equivalent for personal/carer's leave. Under ss 100 and 101, cashing out paid personal/carer's leave is prohibited except under specific terms in a modern award or enterprise agreement, which must require a separate written agreement each time, a balance of at least 15 days after cashing out, and payment of the full amount of the leave forgone. Only two awards currently permit it at all, and an award-free employee cannot cash out sick leave at all. Unused balances therefore generally lapse on termination unless an award or agreement provides otherwise.

When employees can take the leave

The same leave balance covers sick leave and carer's leave. Under s 97 of the Fair Work Act, an employee can take paid personal/carer's leave:

• because they are not fit for work due to a personal illness or personal injury, which the Fair Work Ombudsman confirms can include stress and pregnancy-related illness, or
• to provide care or support to a member of their immediate family or household who is ill, injured, or affected by an unexpected emergency.

"Immediate family" has a defined meaning. It covers a spouse or de facto partner, child, parent, grandparent, grandchild, sibling, and the equivalent in-law relationships, including step and adoptive relations. A household member is anyone who lives with the employee. An unexpected emergency is an unforeseen, sudden or urgent situation, which can be as simple as needing to pick up a child from school.

Two related entitlements apply to all employees, including casuals:

• Unpaid carer's leave: Under s 102 of the Fair Work Act, every employee is entitled to 2 days of unpaid carer's leave per occasion when a family or household member needs care or support due to illness, injury or an unexpected emergency. It cannot be used if the employee could instead take paid personal/carer's leave.
• Compassionate leave: Under s 104, every employee is entitled to 2 days of compassionate leave per occasion when a family or household member has a life-threatening illness or injury, dies, or where there is a stillbirth or miscarriage. Non-casual employees are paid for compassionate leave at their base rate.

Notice and evidence: what you can lawfully ask for

When an employee takes any of this leave, s 107 of the Fair Work Act requires them to notify you as soon as practicable, which may be after the leave has started, and to advise the period or expected period of absence. You may then require evidence that would satisfy a reasonable person that the leave is taken for a permitted reason.

The standard is deliberately flexible. There are no strict rules about the type of evidence. A medical certificate is the most common form, but a statutory declaration can be reasonable evidence for a short absence, and an award or agreement may specify what you can require. The Fair Work Ombudsman's guidance is that the evidence must be enough to convince a reasonable person that the employee was genuinely entitled to take the leave.

The consequence of non-compliance is also defined: if the employee does not give notice, or does not provide evidence when reasonably required, they may not be entitled to be paid for the leave. That is the lawful lever, and it applies to casuals taking unpaid carer's leave as well.

A few practical guardrails follow from the way the standard is drafted:

• Apply your evidence policy consistently across the workforce, and document what you accept in your leave policy
• Keep requests proportionate. Insisting on a GP certificate for every single absence, when a statutory declaration would satisfy a reasonable person, is the kind of overreach that turns a compliance matter into a dispute
• Handle medical information confidentially, since personal information given under s 107 can be regulated under the Privacy Act 1988 (Cth)
• Remember that asking for evidence is not the same as refusing leave. An employee who gives notice as soon as practicable is entitled to take the leave; the evidence requirement goes to whether it is paid

Paying sick leave correctly

Under s 99 of the Fair Work Act, paid personal/carer's leave must be paid at the employee's base rate of pay for the ordinary hours they would have worked in the period. The base rate does not include incentive-based bonuses, loadings, allowances, overtime or penalty rates.

That creates a common payroll trap: if an employee would have worked a Saturday shift with penalty rates, sick leave taken on that Saturday is paid at their base rate, not at the penalty rate they would have earned. Allowances and loadings are only payable while on sick leave if an award or agreement specifically says so.

Other payment points worth knowing:

• Sick leave can be taken for part of a day, and it is paid only for the ordinary hours not worked
• An employee who has been stood down is not entitled to use paid personal/carer's leave for the days they were directed not to work
• If the balance runs out, agree with the employee on how to handle further time off, such as additional unpaid leave, and remember that non-casual employees can fall back on unpaid carer's leave for caring absences
• An employee who is unwell during their notice period can take accrued paid sick leave while working out notice, provided the leave is genuine and the notice and evidence requirements are met

If you get it wrong: penalties and enforcement

Contravening the NES is a civil remedy provision under s 44 of the Fair Work Act. The Fair Work Ombudsman can investigate, issue compliance notices, accept enforceable undertakings, and take court action for penalties and compensation on behalf of employees.

The maximum penalties, which courts impose per contravention, are set by reference to penalty units. A penalty unit is currently $330 under s 4AA of the Crimes Act 1914 (Cth). For a standard NES breach the maximum is 60 penalty units, which is $19,800 for an individual, and s 546 sets the maximum for a body corporate at 5 times that amount, which is $99,000. If the breach is a serious contravention, meaning the employer knew about it or was reckless, the maximum jumps to 600 penalty units, or $198,000 for an individual and $990,000 for a body corporate. Where a body corporate that is not a small business is caught underpaying, the maximum is the greater of about $495,000 and 3 times the underpayment amount.

The stakes rose further from 1 January 2025. Under s 327A of the Fair Work Act, an employer who intentionally fails to pay an employee an amount owed under the Act, an award or an agreement, which explicitly includes paid leave, commits an offence punishable by up to 10 years' imprisonment for an individual, and fines of up to 3 times the underpayment or 5,000 penalty units ($1.65 million), with bodies corporate facing up to 25,000 penalty units ($8.25 million).

There is also a separate exposure for how you treat employees who take leave. Under s 340 of the Fair Work Act, taking adverse action against an employee because they exercised a workplace right, which includes taking leave they are entitled to, breaches the general protections. Dismissing or disadvantageing someone for being sick is how leave disputes become unfair dismissal or general protections claims.

The state system: Queensland government and council employers

If your business is a Queensland government entity, statutory body or local council, the obligations come from the Industrial Relations Act 2016 (Qld), and the numbers look similar but are not identical.

Under s 40, employees get at least 10 days of sick leave on full pay for each completed year of employment, accruing progressively according to ordinary hours and carrying over from year to year. Sick leave can be taken for part of a day and is exclusive of public holidays that fall during the leave.

There are real differences in the detail. Under s 41, the employee must promptly notify you of the illness and the approximate period of absence, but you can only require evidence where the absence exceeds 2 days, and it must be sufficient evidence to satisfy a reasonable person unless an applicable industrial instrument or agreement provides otherwise. Carer's leave under s 42 draws on the same 10-day balance for non-casual employees, with 2 additional days of unpaid carer's leave per occasion once the balance is exhausted, and it extends to caring for a person who has experienced domestic violence.

The casual rules are also different from the national system. A long-term casual, defined under s 15 as a casual engaged on a regular and systematic basis during the year before seeking the entitlement, is entitled to 10 days of unpaid carer's leave each year under s 43. Short-term casuals get up to 2 days of unpaid carer's leave per occasion under s 44.

If you operate across both systems, for example a private company with a council contract, check which system each group of employees sits in before applying leave policies, because the evidence rules and casual entitlements genuinely differ.

A practical compliance checklist

Work through this checklist to keep your sick leave obligations on track:

• Confirm which system applies to each part of your workforce: national system for private sector employees, state system for government and council employees
• Record leave in hours, not days, and align your payroll and HRIS settings with the 1/26 accrual formula
• Decide and document what evidence you will accept, including when a statutory declaration will do instead of a medical certificate
• Train managers on how to handle notifications, evidence requests and return-to-work conversations, and on handling medical information confidentially
• Plan for the edge cases: absences that outlast the leave balance, mental health-related absences, and absences during notice periods
• Keep clear records of notifications, evidence, and decisions so your responses are consistent and defensible

When to get legal help

The baseline rules above are straightforward, but awards and agreements vary them, and the consequences of getting them wrong are now severe. A lawyer can help by confirming the correct award coverage and how it interacts with the NES, reviewing or drafting leave policies and contracts, advising on evidence disputes and repeated absences, and responding to Fair Work Ombudsman investigations or general protections claims. If you are considering terminating an employee who has been absent for medical reasons, get advice before you act: capacity-based dismissals sit on a fine line between a lawful decision and an unlawful one, and each case turns on its facts.

The evidence standard is where Queensland employers slip up

If there is one obligation to fix this week, it is the evidence standard. Many Queensland businesses treat a medical certificate as compulsory for every absence and dock pay when one is not produced, even though the law only requires evidence that would satisfy a reasonable person. That overreach is how a sick leave policy stops being compliant: a demand that exceeds the legal standard, applied inconsistently, is exactly the conduct that produces back-pay claims and Fair Work Ombudsman attention. Write down what evidence you accept, apply it to everyone, and pay the leave that is plainly owed on time. The statutory floor is not a maximum you must extract from employees; it is the minimum you must provide.