Personal/Carer’s Leave Interpretation

Recently the High Court has granted special leave to the Federal Government and Mondelez to appeal last year’s decision by the Full Federal Court in the case of Mondelez v AMWU [2019] FCAFC 138.

The decision by the Full Federal Court determined that the meaning of a ‘day’ for the purposes of paid personal/carer’s leave entitlements under section 96 of the Fair Work Act 2009 (Cth) (FWA) was the ordinary hours usually worked on the day the employee was absent.  This decision had major implications for employers when it comes to employees who are rostered to work more than 7.6 hours per day and part time employees.

The main implications are:

1.            employees who are regularly rostered to work more than 7.6 hours ordinary hours per day are entitled to more than 76 hours paid personal/carers’ leave per year despite the former interpretation that a full time employee was entitled to 10 days at 7.6 hours per day, or 76 hours per year regardless of their shift pattern.  This means that employees who work three 12 hour shifts per day are entitled to 10 days personal/carers’ leave at 12 hours per day, or 120 hours leave per annum.

2.            Part time employees are also entitled to 10 days personal/carers’ leave per year.

This decision has substantial implications from a cost and payroll perspective and has left employers confused on how to calculate leave entitlements under the FWA. 

The High Court is expected to hear the appeal in the first half of this year.

We will update members when the High Court hands down their decision.

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