Commonwealth Consolidated Regulations

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FAIR WORK REGULATIONS 2009 - REG 3.01

Temporary absence--illness or injury

             (1)  For section 352 of the Act, this regulation prescribes kinds of illness or injury.

Note:          Under section 352 of the Act, an employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.

             (2)  A prescribed kind of illness or injury exists if the employee provides a medical certificate for the illness or injury, or a statutory declaration about the illness or injury, within:

                     (a)  24 hours after the commencement of the absence; or

                     (b)  such longer period as is reasonable in the circumstances.

Note:          The Act defines medical certificate in section 12.

             (3)  A prescribed kind of illness or injury exists if the employee:

                     (a)  is required by the terms of a workplace instrument:

                              (i)  to notify the employer of an absence from work; and

                             (ii)  to substantiate the reason for the absence; and

                     (b)  complies with those terms.

             (4)  A prescribed kind of illness or injury exists if the employee has provided the employer with evidence, in accordance with paragraph 107(3)(a) of the Act, for taking paid personal/carer's leave for a personal illness or personal injury, as mentioned in paragraph 97(a) of the Act.

Note:          Paragraph 97(a) of the Act provides that an employee may take paid personal/carer's leave if the leave is taken because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee.

             (5)  An illness or injury is not a prescribed kind of illness or injury if:

                     (a)  either:

                              (i)  the employee's absence extends for more than 3 months; or

                             (ii)  the total absences of the employee, within a 12 month period, have been more than 3 months (whether based on a single illness or injury or separate illnesses or injuries); and

                     (b)  the employee is not on paid personal/carer's leave (however described) for a purpose mentioned in paragraph 97(a) of the Act for the duration of the absence.

             (6)  In this regulation, a period of paid personal/carer's leave (however described) for a purpose mentioned in paragraph 97(a) of the Act does not include a period when the employee is absent from work while receiving compensation under a law of the Commonwealth, a State or a Territory that is about workers' compensation.



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