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What’s a Day? – New Definition for Personal/Carer’s Leave Days

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A Federal Court decision from August 22, 2019* has significantly changed the meaning of a ‘day’ regarding personal/carer’s leave.

The original definition and industry practice saw employees receive 76 hours of personal/carer’s leave, which was calculated to be 10 working days of 7.6 hours, however with this new ruling, the personal/carer’s leave is set to be calculated very differently.

Under s96(1) of the Fair Work Act 2009 (Cth), workers have an entitlement to 10 days of paid personal/carer’s leave per year. The employer (the applicant in this matter) contended that the meaning of the word ‘day’ is to be considered a ‘notional work day’ in that it is to cover the hours of an ‘ordinary’ work day. For example an employee who works 36 hours per week, works an average of 7.2 hours per day over a five day work week. Therefore employees are entitled to 10 days at 7.2 hours per day, or alternatively 72 hours of paid personal/carer’s leave for each year of service.  This definition was supported by the Federal Minister for Small and Family Business.

In opposition to the above, the Australian Manufacturing Workers Union (AMWU) submitted that under the act a ‘day’ should be construed in accordance with its ordinary meaning of a ‘calendar day.’ That is, employees have 10 x 24 hour periods that they can be absent from work without loss of pay. In this case, the employees worked 12 hour shifts at the Cadbury Factory in Tasmania, so they were asking for 120 ‘working’ hours of leave per year.

To demonstrate how the above definitions work in practice: both employee A and B work 36 hours per week. Employee A does 12 hour shifts, 3 times a week and employee B does 7.2 hour shifts, 5 times a week.  Under the employer’s definition, both employees receive 72 hours of personal/carer’s leave however for employee A that is 6 working days off, and for employee B that is 10 working l days off.  Under the AMWU’s submission, both employees receive 10 days off work.

In this case, the court considered carefully the meaning s96, as well as the different meanings of the word ‘day’ within the Fair Work Act (Cth), particularly in regards to s106E (entitlements to days of leave). In this instance, the employer’s submission of a ‘notional working day’ was rejected. The Court considered a day to be the portion of a 24 hour period that would otherwise be allotted to work. Rather than considering hours of paid leave, employers should consider personal/carer’s leave to be ‘days’ or ‘shifts.’ The court stated that if a day of paid personal/carer’s leave is taken, a day is to be deducted from the employee’s accrued balance.

Why is this case important?

Whilst every case is decided on its own merits and facts, this is in important and influential decision that could impact many businesses and their employees’ leave entitlements. The fact that a day of leave is no longer considered in terms of hours, but days of work, is a significant development in employment conditions and employee obligations. 

This is likely to be a significant issue for businesses where the shifts exceed standard award limits, are irregular and/or are different lengths. It is likely this decision may be appealed.

Mapien has extensive experience in complex workplace matters. If you are unsure of how this new development could affect your business, please contact us or your consultant to discuss further.

*Mondelez v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union Known as the Australian Manufacturing Workers Union (AMWU) [2019] FCAFC 138

Written by
Mark Brady
Bringing over 20 years employment and industrial relations experience to the table, Mark Brady is known for providing creative and practical answers to complex workplace issues.