Federal Court decision: accrual of personal/carer’s leave

21 August 2020

On 13 August 2020, the High Court handed down a decision about the method of accruing and taking paid personal/carer’s leave under the National Employment Standards. The High Court has found that the entitlement to 10 days of personal/carer’s leave is calculated based on an employee’s hours of work, not days. 10 days of personal leave can be calculated as 1/26 of an employee's ordinary hours of work in a year.

The High Court’s decision overturns a decision made by the Full Federal Court in August 2019. The news article below explains the outcome of the Full Federal Court decision from 2019 and is no longer current.

Learn more about the High Court decision at High Court decision: accrual of personal/carer's leave.

Published 23 August 2019

Read on for more information.

Appeal

The Australian Government and the company involved in the case, Mondelez Australia Pty Ltd, applied to the High Court of Australia to appeal this decision. The High Court granted these applications on 13 December 2019 and an appeal was heard in the High Court on 7 July 2020. We’ll update our information when the High Court has handed down its decision. In the meantime, the decision made on 21 August 2019 is the current state of the law and applies to affected employers and employees.

What does the Mondelez decision mean?

In the Mondelez 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.

More information

Read more about accumulating and taking paid sick and carer’s (personal/carer’s) leave on our Paid sick & carer’s leave page.

We will continue to update information on our website with any significant changes.

See the High Court's results of applications external-icon.png to grant leave to Mondelez and the Australian Government to appeal Mondelez Australia Pty Ltd v AMWU [2019] FCAFC 138 external-icon.png .

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