Sick Leave Anomalies Resolved by High Court

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The High Court has issued a decision on the meaning of a “day” for the purposes of calculating sick leave.

History of the sick leave case and what is “10 Days”

Full-time employees are entitled to 10 days personal leave under the Fair Work Act National Employment Standards (NES).  The Mondelez case arose because shift workers that worked 12-hour shifts were arguing that the 10 days sick leave should be read as 120 hours rather than 76 hours.  That’s the very much abridged version of the claim which has travelled through the Fair Work Commission, Federal Court and High Court.

High Court Ruling – A Victory for Common Sense?

Sick LeaveThe state of flux of sick leave entitlements created uncertainty and left us with a Federal Court ruling that was impractical in its approach.  The substance of the replacement High Court ruling is:

  • Duration of a day ( a working day for the purposes of sick leave) is calculated using 1/10 of the employee’s ordinary hours over a two week period.  This is the equivalent of of 1/26 of their total ordinary hours over a year.
  • Part-timers are subject to the same calculation. For example, a part-timer doing 15 hours per week would have an entitlement to a three-hour “day” (1/10 of  30 hour fortnight)
  • Shift-workers doing a 12-hour ordinary shift would have their hours calculated over the course of the year to smooth out variation fortnight to fortnight and month to month.  In most cases the entitlement will be 7.6 hours as the 12-hours worked in one shift is based on working a reduced number of days e.g. 3x 12 hour shifts in a week or 12 shifts over a month with some smoothing of hours through RDO accrual etc.

Federal Court Ruling “Absurd”

The High Court called out the ruling of the Federal Court and said it would produce “absurd results and inequitable outcomes, and would be contrary to the legislative purposes of fairness and flexibility”.   Hopefully this resolves the issue of sick leave calculation for Australian workers and employers.

This is the ruling on sick leave and clarifies the minimum standard.  Remember – there is always room for compassion!


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