Personal and carers leave: now calculated in days

Two Tasmanian confectionary workers have won a Federal Court case over their sick leave entitlements in a decision with personal and carers leave implications for more than a million employees who work shift work.

The case was initiated by Mondelez, an employer operating a chocolate factory at which full-time employees work 36 ordinary hours per week.  Some Mondelez employees work 7.2 hours per day, five days per week, while others work three 12-hour shifts per week.

The two employees and their union (AMWU) contended that because they work 12 hour shifts, their 10 days of personal and carers leave should be paid at 12 hours a day. Mondelez argued that it was entitled to pay only 7.6 hours for this entitlement.

On 21 August 2019, a majority of the Federal Court of Australia found that the Fair Work Act’s minimum 10 days’ paid personal leave should be calculated at the ordinary hours that a person works a day, rather than just a set 7.6 hours. The Court determined:

• Paid personal/carers leave must be calculated in working days, not hours. A working day is the portion of a 24-hour period that an employee would otherwise be working.
• An employee’s entitlement is expressly based upon time working for the employer and is expressly calculated in days.

This decision may have widespread ramifications on how sick leave for shift workers is calculated…and how this entitlement is managed by employers. Employer organisation Australian Industry Group (AIG), whose lawyers represented Mondalez, stated the court’s decision was inconsistent with widespread industry practice and would have “substantial cost implications” for a large number of employers if the decision stands.

The Fair Work Ombudsman media release out the personal and carers leave decision is available here.

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