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SUCCESS FOR EMPLOYERS! THE HIGH COURT OF AUSTRALIA CONFIRMS CALCULATION OF SICK LEAVE




On the 13th of August 2020, the High Court of Australia overturned the decision of Mondelez Australia Pty Ltd v AMWU [2019] FCAFC 138 providing clarification on what is considered a ‘day’ of personal/carer’s leave. 

In the decision, the High Court of Australia found that a ‘day’ is considered a ‘notional day’, consisting of one-tenth of the equivalent of an employee’s ordinary hours of work in a two-week period. The High court declared that: 
"The expression '10 days' in s96(1) of the Fair Work Act 2009 (Cth) means an amount of paid personal/carer's leave accruing for every year of service equivalent to an employee's ordinary hours of work in a week over a two-week (fortnightly) period, or 1/26 of the employee's ordinary hours of work in a year."
The decision clarified section 96 of the Fair Work Act 2009 (Cth.) which states that:
"For each year of service with his or her employer, an employee is entitled to 10 days of paid personal/carer’s leave."
Previously, the full Federal Court in 2019 decided that a ‘day’ of personal/carer’s leave is considered a ‘working day’, describing a ‘day’ as "the portion of a 24 hour period that would otherwise be allotted to work". 

Why is this decision important?

The decision confirms that a full time employee is entitled to 76 hours of personal/carer’s leave a year and a part time employee is entitled to a pro-rata basis of 76 hours.

What does this mean for members?

Members can continue to accrue personal/carer’s leave as per normal. This can be done by dividing an employee’s ordinary hours by 26. 

A link to the decision is located here: Mondolez Australia Pty Ltd AMWU , Minister for Jobs and Industrial relations v AMWU [2020] HCA29

If a Member requires any further assistance then please contact the Employment Relations Team at (02) 9016 9000 or email [email protected]

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