The case of Mondelez Australia Pty Ltd v AMWU [2019] FCAFC 138 , heard in the Federal Court of Australia clarified how personal/carer’s leave is to be calculated and paid under the Fair Work Act 2009. While the decision is undergoing an appeal, and while it may be some time before that is heard in the high court, the Federal Court decision stands in the meantime.

In a nutshell, the 2:1 decision handed down clarified that:

  • Full time and part time employees are entitled to 10 days paid persona/carer’s leave for every year of service.
  • This leave is not calculated pro-rata for part time employees meaning that they are entitled to 10 days per year regardless of how many hours they work per week. If they were scheduled to work four hours that day, then four hours is paid.
  • This leave is accrued and taken in days (rather than hours, as is the current practice).
  • Provided enough leave is accrued:
  • The employee takes a full day of paid leave for all ordinary hours falling on that day (even if it exceeds 7.6 hours), one day is deducted from that leave and the employee is paid as s/he would have if s/he worked that day.
  • An employee who takes part of a day for all unworked ordinary hours on that day should have the equivalent part-day deducted e.g. the employee was due to work eight ordinary hours, s/he left work after 4 hours, 0.5 of a day is deducted.

Provided, there is sufficient leave accrued, the employee is entitled to be paid for the ordinary hours they would have worked that day. Had they not been on paid personal/carer’s leave.

The award that covers your particular business will determine the rate at which this leave is to be paid, whether ordinary rate or another rate.

Failure to accrue, deduct and pay personal/carer’s leave as determined by the Federal Court, could leave to a breach of the Fair Work Act 2009 which may result in fines and/or an underpayment of entitlements.

See also: Paid sick & carer’s leave

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Please contact Lauren Morrison at Lauren@lmhr.com.au or Mob: 0400 225 499 if you would like to learn more about how LM HR Consulting can assist your business with your HRM requirements.