The High Court of Australia handed down a decision on 13 August 2020, clarifying the rules around personal/carer’s leave; in particular, how it is accrued and taken under the terms of the National Employment Standards (NES).

The decision was in relation to the case of Mondelez Australia Pty Ltd v AMWU & Ors [2020] HCA 29. (summary).

The High Court of Australia decision overruled the original decision (in a nutshell), that the Full Court of the Federal Court has determined that a ‘day’ for the purpose of personal/carer’s leave was to be calculated as the hours of the ‘day’ that the employee would usually work, rather than the usual calculation, of 1/5th of a 38 hour ordinary hour week; i.e. 7.6 hours.

It had also determined that the shift workers, working 3 days a week, simply speaking, were entitled to 10 days of personal/carer’s leave per year, rather than the usual pro-rata days accrued.

Now, the decision on the 13th August from the High Court has overruled this decision, clarifying 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
  • 10 days of personal/carer’s leave can be calculated as 1/26 of an employee’s ordinary hours of work in a year.

Many employers will be relieved to see the outcome of this decision 12 months after the original Federal Court Decision.

You can read the full detail of the High Court Decision here.

To get further information on how this decision applies to your workplace, get in touch with our Workplace Partners ASAP.


*This is general information only and doesn’t take your specific workplace circumstances into account.