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How Many Hours of Sick Leave am I Entitled to?

By Michelle Morton

22nd September 2020

On 13 August 2020, the High Court of Australia overturned a Full Federal Court ruling from August 2019 to provide much-needed clarity as to how the paid personal/carer’s leave entitlements of all employees is accrued and taken.

In the decision of Mondelez Australia Pty Ltd v AMWU & Ors [2020] HCA 29, the High Court allowed an appeal concerning how this entitlement is calculated under the Fair Work Act 2009 (Cth) (“Fair Work Act”).

Section 96(1) of the Fair Work Act says that “for each year of service with his or her employer, an employee is entitled to 10 days of paid personal/carer’s leave”. The issue in question focused on what was meant by the term “day” in the “10 days”.

“Notional Day” Construction

The High Court held that the personal/carer’s leave under section 96(1) must be considered by reference to an employee’s ordinary hours of work, not their working days.

The Court said that “10 days” refers to two standard five-day working weeks, therefore, one “day” denotes a “notional day” calculated as 1/10th of an employee’s ordinary hours of work across a two-week period. Considering some employee’s hours of work would not always follow a two-week cycle, this entitlement can also be calculated as 1/26th of an employee’s ordinary hours of work in a year.

This decision ensures that employees who work the same number of ordinary hours are entitled to the same amount of paid personal/carer’s leave each year, regardless of how their rosters are structured.

If you have any queries regarding your paid leave entitlements, please contact our specialist Workplace Relations team.

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