Appeal filed on Full Court Ruling on Personal / Carer's Leave Entitlement

Public news

Members are referred to an earlier News Alert on 3 September 2019 in relation to the recent Full Court decision on the Personal / Carer’s Leave entitlement under the National Employment Standards (NES).

In a significant move, the Federal Government has now joined a major employer in seeking leave to appeal the decision of the Full Court to the High Court.

As indicated in the earlier News Alert, the Full Court decision ruled that full-time shift workers working 3 shifts of 12 hours in a week were entitled to 10 calendar days of paid personal/carer’s leave, or 120 hours per annum. The interpretation of the relevant sections in the NES, as determined by the Full Court, was primarily to refer to the entitlement as expressed in ‘days’. The 10 days entitlement in the NES when converted in hours would depend on how many ordinary hours are worked by the employee on the day leave is taken rather than having regard to the average ordinary hours worked in a week. This would also consequently impact on the entitlement for part-time employees.

The decision sparked confusion and uncertainty amongst employers on how personal / carer’s leave should be calculated. For example, if an employee is working a 38 hour week, based on 4 shifts, at 9.5 hours per shift, then they would be entitled to 95 hours of leave per annum under the decision. This goes against the long held and common understanding that full-time employees who worked a 38 hour week were entitled to an entitlement of 76 hours of personal/carer’s leave per annum.

News of the appeal to the High Court is therefore welcomed and necessary both in terms of providing clarity on the entitlement and also given the significant cost impact of the Full Court decision on businesses.

Implications for Employers

In light of the High Court appeal, members are advised to hold off on implementing the earlier Full-Court decision at this stage and we will advise any new developments in this regard.

Members needing advice or wishing to discuss the above matter should contact the MTA's Workplace Relations team by clicking here or by calling 8291 2000.