Guest Post: Bereavement Leave for Step-Families by Jessica Vigar

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Step-FamiliesAlthough this blog is normally my self-indulgent platform for promoting, well, me, I am more than willing to share the (very limited) limelight for examples of other people’s writing, especially when that example is well written and for a good cause.

Just like Jessica, my inaugural guest post author, I am one of those people who is part of a step-family (in fact, I’m part of three of them). When she was denied bereavement leave on the occasion of her step-grandfather’s death, she was moved to pen the following letter to the Fair Work Commission to protest the unfairness of the Australian Government trying to tell us who we should and shouldn’t consider family.

It’s hard to argue with common sense (although governments attempt it time and time again). Read on for Jessica’s thoughtful, articulate and reasonable request for change.

Bereavement Leave for Step-Families
Good afternoon.

Recently my grandfather (technically step-grandfather) passed away after battling with Alzheimers. Upon approaching my employers to take time off to attend his funeral, I was told that I would need to take annual leave as the Fair Work Act does not classify step-family as “immediate family”. I called Fair Work Australia who confirmed this.

Luckily I wasn’t as close to my step-grandfather as I am, say, to my step-father (who raised me for 18 years), or my step-sister and brother (who I grew up with since I was 10). But according to Fair Work Australia, these members of my family, members who are as close to me as my blood family, aren’t considered under law as “immediate family”.

According to the Australian Institute of Family Studies, currently one third of registered marriages in Australia involve at least one previously divorced partner. So the “Fair” Work Act is excluding almost one third of the population. I was also informed that if it had been my husband’s grandfather, I would be granted the standard two days of bereavement leave; however my own step-grandfather is a very different matter.

I urge Fair Work Australia to reassess the Fair Work Act so that companies cannot use these loopholes in order to avoid providing their employees the basic rights that are awarded to “normal” families.

Kind regards,

Jessica Vigar
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You can sign Jessica’s petition to show your support at change.org.
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5 thoughts on “Guest Post: Bereavement Leave for Step-Families by Jessica Vigar

  1. The advice Jessica was given is wrong. Section 17 of Fair Work Act defines a child to include adopted and step children and say that the term ‘immediate family’ needs to be read with this in mind. Instead of petitioning to change a law that does not need changing Jessica should seek her union’s assistance in being given back the leave which has been mistakenly taken from her.

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    • David, I thought you would appreciate an update regarding Jessica’s situation. Although Section 17 of the Fair Work Act includes adopted and step children, it only relates to carer’s and parental leave, not bereavement leave. She was directly advised by Fair Work Australia that, unfortunately, the Act can be interpreted to exclude step families regarding bereavement leave at the discretion of individual companies. She was also contacted by someone working on revisions to the Act who agreed it needs to be changed to prevent these “interpretations” and provide equal coverage to all workers. Let’s hope that change comes soon.

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      • David Bunn

        Dear Louise Bereavement leave is not a term used in the Fair Work Act. The worker’s entitlement is to ‘compassionate leave’.

        Section 104 of the Fair Work Act says: 104  Entitlement to compassionate leave An employee is entitled to 2 days of compassionate leave for each occasion (a permissible occasion) when a member of the employee’s immediate family, or a member of the employee’s household:

        (a) contracts or develops a personal illness that poses a serious threat to his or her life; or

        (b) sustains a personal injury that poses a serious threat to his or her life; or

        (c) dies.

        Therefore the only question in Jessica’s case is whether a step-grandfather is ‘immediate family’.

        Compassionate leave is contained in Division 7 Part 2-2 of the Fair Work Act which also deals with personal and carer’s leave. So Jessica’s issue is important for step-parents taking carers’ leave to look after step-children as well as compassionate leave. Most cases would be dealt with by the right to take carers’ leave to look after members of the household but if I was to look after my step-daughter who has moved out of home then I would rely on ‘immediate family’ to include my step children.

        Immediate family is defined in s4 of Fair Work Act: immediate family of a national system employee means:

        (a) a spouse, de facto partner, child, parent, grandparent, grandchild or sibling of the employee; or

        (b) a child, parent, grandparent, grandchild or sibling of a spouse or de facto partner of the employee.

        Child of a person is defined in sectio 17 and the note makes plain that it relates to compassionate leave:

        17  Meaning of child of a person (1) A child of a person includes:

        (a) someone who is a child of the person within the meaning of the Family Law Act 1975; and

        (b) an adopted child or step‑child of the person.

        It does not matter whether the child is an adult.

        (2) If, under this section, one person is a child of another person, other family relationships are also to be determined on the basis that the child is a child of that other person.

        Note: For example, for the purpose of leave entitlements in relation to immediate family under Division 7 of Part 2‑2 (which deals with personal/carer’s leave and compassionate leave):

        (a) the other person is the parent of the child, and so is a member of the child’s immediate family; and

        (b) the child, and any other children, of the other person are siblings, and so are members of each other’s immediate family.

        Whilst I can see that the Parliamentary draftspeople wish they had referred to s.17 when they wrote the definition of ‘immediate family’, which would have stopped these ‘interpretations’, there is no doubt that ‘interpretations’ which ignore the existence of s.17 are wrong and Jessica is entitled to up to 2 days of paid compassionate leave after the death of her grandfather.

        Looking at the stories coming out of the Royal Commission on unions workers may be forgiven for thinking that unions are grubby tawdry things but I have worked for white collar unions for 35 years, both as an elected officer and as staff, and we would have won this for Jessica either in discussion with the employer or by taking action in forums like the Fair Work Commission. I guess she’s not a union member so has relied on her employer’s HR section and the Fair Work Ombudsman. Neither of those bodies will take her side and vigorously pursue her cause.

        >

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      • David, I’m a strong believer in the importance of unions and doubtful of the usefulness of internal HR departments. They work for the company after all, not the employees. I’ve again forwarded your advice to Jessica and hopefully this can be rectified according to lawful entitlements for workers without being stymied by “interpretations”. Thanks again for your comments.

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