National system employees in Australia are entitled to ‘10 days’ of paid personal/carer’s leave (Personal Leave) (otherwise known as ‘sick leave’ in Australia) for each year of service in accordance with section 96(1) of the Fair Work Act 2009 (Cth) (FW Act), which accrues progressively during a year of service according to their ordinary hours of work.

 

The interpretation of the Personal Leave provisions in the FW Act have recently been the subject of judicial consideration. Last year, the Full Court of the Federal Court of Australia (Full Court) held[1] that both full-time and part-time employees are entitled to accrue 10 days of Personal Leave which must be calculated in working days, not ordinary hours of work.

 

The High Court of Australia has recently overturned the Full Court’s decision and held[2] that:

 

  • ‘10 days’ in the context of Personal Leave refers to the equivalent of an employee’s ordinary hours of work in a fortnightly period, or put another way, 1/26th of their ordinary hours of work in a year;

 

  • a ‘day’ refers to a ‘notional day’ consisting of one-tenth of the equivalent of an employee’s ordinary hours of work in a fortnightly period.

 

Personal Leave accrues by reference to ordinary hours worked and not by reference to days or working patterns. The ‘10 days’ referred to in section 96(1) of the FW Act refers to ‘notional days’ rather than ‘working days’.

 

For more information please contact Sathish Dasan on +61 8 8210 1253 or sdasan@normans.com.au.