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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