As you would likely already know, all full-time and part-time employees are entitled to be paid personal and carer’s leave under the Fair Work Act 2009 (Cth) (‘FWA’).
The key question, however, is how is such leave accumulated/calculated?
On 13 August 2020, the High Court of Australia handed down a decision in the case of Mondelez Australia Pty Ltd v AMWU & Ors  HCA 29 in relation to how paid personal / carer’s leave under the National Employment Standards is to be calculated (‘Mondelez High Court decision’).
The Mondelez High Court decision overturns the August 2019 determination of the Full Federal Court of Australia, where it was held that every employee, regardless of their pattern of work or distribution of hours, were entitled to be absent without loss of pay for ten working days per year. This, in some circumstances, resulted in an unfair accumulation of leave between full time and part-time/shift employees.
Example of outcome based on Full Federal Court of Australia’s decision in August 2019:
An employee working 36 ordinary hours per week over 5 x 7.2-hour days would accrue 76 hours of paid personal / carer’s leave per annum, whilst a part-time employee who worked 36 ordinary hours per week by way of 3 x 12 hour shifts a week would accrue 120 hours of leave per annum.
Current Law – Mondelez High Court decision
In maintaining the legislative purposes of fairness and flexibility in the FWA, the Mondelez High Court decision now sets out that:
1. The 10 days of personal / carer’s leave under the National Employment Standards is to be calculated based on an employee’s ordinary hours of work in a two-week period, for each year of service; and
2. One “day” refers to a notional day consisting of one-tenth of the equivalent of an employee’s ordinary hours of work in a two-week period or it can also be calculated as 1/26 of an employee’s ordinary hours of work in a year.
Part-time employees, therefore, will now get the same entitlements for paid personal and carer’s leave as a full-time employee, but on a pro-rata basis.
Example of outcome based on Mondelez High Court decision:
Any full time or part-time employee working 36 ordinary hours per week, will accrue 76 hours of paid personal / carer’s leave per annum regardless of their pattern of work or distribution of hours during that 36-hour week.
If you are an employer, you must now calculate your employee’s personal and carer’s leave entitlements in accordance with the new law. If you are an employee, be mindful that your personal leave entitlements may change, and you may potentially see a reduction in the hours you are now entitled to as a result of the Mondelez High Court decision.
At Clarke Hemmerling Lawyers, we are experienced in advising and representing employers and employees in employment matters. If you would like further information or an obligation free discussion about the current position regarding employee personal leave and carer’s leave entitlements, please contact Kaviytha Raman on 08 8333 2130.
This blog post does not constitute legal advice and should not be relied upon as such. It is a general commentary on matters that may be of interest to you. Formal legal or other professional advice should be sought before acting or relying on any matter arising from this communication.