On 21 August 2019, the Full Federal Court of Australia handed down a decision in Mondelez Australia Pty Ltd v AMWU  FCAFC 138. The decision deals with the method of accruing and taking paid personal/carer’s leave for the purposes of the National Employment Standards under the Fair Work Act 2009.
Although the Full Federal Court’s decision is the most recent authority on the current state of the law, the Australian Government and Mondelez Australia Pty Ltd have applied to the High Court seeking special leave to appeal the decision. As the outcome of those applications (and any subsequent appeal) may impact upon the FWO’s advice in these matters, the FWO will review its advice at the conclusion of those proceedings. In the interim, you may wish to seek your own legal advice on this issue.
In the decision, the majority of the Full Federal Court determined:
- Full-time and part-time employees are entitled to 10 working days of paid personal/carer’s leave for each year of employment.
- The leave protects those employees’ income when they are entitled to be absent from work due to illness or injury (or providing care or support to a family or household member who is ill, injured or suffering from an unexpected emergency).
- The 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.
- For every day of personal/carer’s leave taken, an employer deducts a day from the employee’s accrued leave balance. If an employee takes a part-day of leave, then an equivalent part-day is deducted from the employee’s accrued leave balance.