The High Court has overturned the Full Federal Court’s controversial decision in Mondelez v AMWU [2019] FCAFC 138.  This case dealt with how personal/carer’s leave should be calculated based on working days, not hours.

As a result of the High Court decision, it has clarified that the entitlement to 10 days of personal/carer’s leave under the National Employment Standards (NES) is calculated based on an employee’s ordinary hours of work, not working days.

More specifically:

  • Permanent employees will accrue personal/carer’s leave based on their ordinary hours of work, which can be averaged over a two-week period (for standard hours) or over 12 months (for non-standard hours).
  • Part-time employees accrue personal/carer’s leave on a pro-rata basis, calculated according to their average ordinary hours of work (not 10 days of personal/carer’s leave as proposed by the Full Federal Court).
  • When taking personal/carer’s leave, the number of ordinary hours taken should be deducted from the leave accrual (not a fraction of a day as proposed by the Full Federal Court).

The High Court’s decision comes as a welcome relief to employers and now provides certainty on the calculation of personal/carer’s leave entitlements under the FWA.

FWA has updated the following pages, and are continuing to update other resources on their website:

Some employers and payroll systems have already implemented changes based on the previous Full Federal Court Decision.  These changes will need to be reviewed in light of the High Court decision to ensure compliance.

If you have any questions in relation to what this means for your payroll, please contact your Cooper Reeves Adviser.