The decision of Mondelez Australia Pty Ltd v AMWU  FCAFC 138 considered the method of employees accruing and taking paid personal/carer’s leave in accordance with the National Employment Standards in the Fair Work Act 2009 (Cth). The decision has changed the way in which paid personal/carer’s leave is accrued and taken. This decision has been appealed to the High Court of Australia, however, in the meantime employers should be aware of the impact of this decision on paid personal/carer’s leave, in particular with respect to part-time employees.
While the case dealt with employees working 12 hour shifts, clients have asked us to advise how the principles of this decision are applied to part-time employees. The key changes for part-time employees as a result of this decision are as follows:
- Part-time employees no longer accrue paid personal/carer’s leave on a pro rata basis. All employees other than casual employees, whether they are employed full-time or part-time, accrue 10 days of paid personal/carer’s leave per year of service, irrespective of the hours worked. The Fair Work Ombudsman has updated the Fair Work Information Statement to reflect this. This means that a part-time employee who works one 7.6 hour day per week is entitled to accrue personal/carer’s leave at the same rate as a full-time employee who works five 7.6 hour days per week. Each is entitled to accrue 10 days of personal/carer’s leave per year of service.
- The accrual of personal/carer’s leave is in days, not hours, which means that an employee who works four ordinary hours per day accrues personal/carer’s leave at the same rate as an employee who works eight ordinary hours per day. Every 5.2 weeks, each of them will have accrued one day of personal/carer’s leave.
- When employees take personal/carer’s leave their leave balance is deducted in days and part-days, not hours. Part-time employees’ ordinary hours may vary each day, but when they take a day of personal/carer’s leave the deduction from their leave balance will be one day regardless of the number of ordinary hours they would have worked on the absent day. For example, if an employee usually works four ordinary hours on a Monday and seven ordinary hours on a Tuesday, and they take personal/carer’s leave on both of those working days, their personal/carer’s leave balance is deducted by two days.
If a part-time employee’s employment contract refers to the accrual of paid personal/carer’s leave as being on a pro-rata basis, this is no longer correct and employers may wish to consider amending the contract to be consistent with the current interpretation of the law.
If you have existing employment contracts for part-time employees, please contact us to discuss the personal/carer’s leave provisions.
Julia is a Lawyer at Justitia. To view Julia’s profile, click here.