Fair Work Update – Changes to Sick Leave

On 21 August 2019, the Federal Court handed down a decision in Mondelez Australia Pty Ltd v AMWU [2019] FCAFC 138 that affects how paid personal/carer’s leave accrues and is taken.

Currently, for each year of service, full-time and part-time employees are entitled to 10 days of paid personal/carer’s leave.

But what is the meaning of a day?

Mondelez Australia Pty Ltd, sought clarification on the meaning of “day”, contending personal/carer’s leave should be calculated on a “notional day” – an employee’s average daily ordinary hours for a five-day week.

The Australian Manufacturing Workers Union (AMWU), on the other hand, contended a day should be interpreted a calendar day, regardless of hours worked.  

The different interpretation of a “day” results in drastically different outcomes for a number of Mondelez employees who compress their weekly hours into three 12-hour shifts, ie they work just 3 days.

Under the “notional day” interpretation, these employees would be entitled to 72 hours of paid personal/carer’s leave per year. In other words, their entitlement to paid personal/carer’s leave would be used up after six ordinary shifts.

However, under the AMWU definition the same group of employees were entitled to more personal/carer’s leave than employees working the same hours over five days.

The Decision

In consideration of the meaning of a “day” both sides put forward, the Federal Court have ruled in favor of the AMWU and have determined that:

  • Personal/carer’s leave must be calculated in working days, not hours;
  • A working day is defined as a portion of a 24 hour period that an employee would otherwise be working; and
  • Personal/carer’s may be taken in part-days, where the employer deducts the equivalent part-day from the employees accrued balance.

Please note that whilst Fair Work is in the process of updating these changes on the website and in legislation, the decision may be appealed in High Court but these changes may well affect the way many employers manage shift worker and part time employee’s entitlements.

Contact WCA- People & Culture Solutions if you require assistance with human resources and industrial relations on (08) 9383 3293 or email admin@wcasolutions.com