Paid sick & carer's leave
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.
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Read the Federal Court of Australia’s decision in Mondelez Australia Pty Ltd v AMWU  FCAFC 138
An employee can take paid sick leave when they can't work because of a personal illness or injury. This can include stress and pregnancy related illnesses.
An employee can take paid carer's leave to care for or support a member of their immediate family or household who is sick, injured or has an unexpected emergency.
Who gets paid sick and carer's leave?
All employees except casuals are entitled to paid sick and carer's leave.
Employees may have to give notice or evidence to get paid for sick and carer's leave. Go to the Notice and medical certificates page for more information.
How much paid sick and carer's leave does an employee get?
Sick and carer's leave comes under the same leave entitlement. It's also known as personal / carer's leave.
- 10 days each year for full-time employees
- 10 days each year for part-time employees.
A registered agreement can set out different entitlements to paid sick and carer's leave, but it can't be less than the minimum above.
How does paid sick and carer's leave accumulate?
Full-time and part-time employees accumulate sick and carer's leave during a year of work. It starts to build up from an employee's first day of work.
The balance at the end of each year carries over to the next year.
Sick and carer's leave accumulates when an employee is on:
- paid leave such as paid annual leave and paid sick and carer's leave
- community service leave including jury duty
- long service leave.
Sick and carer's leave does not accumulate when the employee is on:
- unpaid annual leave
- unpaid sick/carer's leave
- unpaid parental leave
- unpaid family and domestic violence leave.
How much paid sick and carer's leave can an employee take?
An employee can take as much paid sick or carer's leave as they have accumulated. There is no minimum or maximum amount of paid sick or carer's leave that can be taken at a time.
For what happens if paid leave runs out, go to:
Source reference: Fair Work Act 2009 s.96 and 97
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Check out our Help resolving workplace issues section for practical advice on:
- figuring out if a mistake has been made
- talking to your employer or employee about fixing it
- getting help from us if you can't resolve it.
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