Absurdness averted! Common sense prevails in calculating accrual of personal leave
Posted on August 17, 2020
Employers across the country now have some clarity regarding how to accrue personal / carer’s leave following the High Court’s decision in Mondelez Australia Pty Ltd v AMWU [2020] HCA 29 (delivered 13 August 2020), which has overturned the Full Federal decision that the 10 days of personal / carer’s leave per year in the National Employment Standards (NES) must reflect an employee’s ordinary hours of work.
Instead, the High Court has found that :
“The expression ’10 days’ in s 96(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. A ‘day’ for the purposes of s 96(1) refers to a ‘notional day’, consisting of one tenth of the equivalent of an employee’s ordinary hours of work in a two-week (fortnightly) period.”
The High Court noted that a construction that the NES referred to a “working day” would create unfairness and “give rise to absurd results and inequitable outcomes”.
Those employers who may have changed their method of personal leave accrual following the Full Federal Court decision, will need to urgently review their practices. For other employers, the position is unchanged.
Please contact Lynch Meyer’s Industrial Relations team if you require any assistance with employment issues.
