The increasing popularity of hours of work arrangements that allow for shorter working weeks can cause uncertainty in other areas of employee entitlements.
One such area is the calculation of personal/carer’s leave – sick leave; and how much sick leave should be deducted for a full .
This confusion arises from the wording of the National Employment Standards (NES) that states that the entitlement to personal/carer’s leave is ‘10 days’ per year. In contrast to the expression of annual leave which is expressed in ‘weeks’ under the NES.
It has been a matter of dispute that resulted in a High Court challenge. The Court held that one ’day’ refers to a notional day consisting of one-tenth of the equivalent of an employee’s ordinary hours of work in a two-week period. An employee’s entitlement to ’10 days of paid personal leave’, regardless of their roster arrangement, is therefore to be calculated and paid at the rate of 1/26 of that employee’s ordinary hours of work in a year.
The High Court decision requires employers to ensure all full-time employees accrue and deduct personal leave at the rate of 1/26 of ordinary hours worked, regardless of how long a shift on a particular day might be when personal leave is taken.
For example, where employees take paid personal leave for single 12-hour shifts, the employer would deduct 12 hours from their accrued personal/carer’s leave balance. Over the course of a year, the leave accrued by the employees was sufficient to cover absences from work for only eight 12-hour shifts.
The High Court confirmed that this approach is correct.
MEA recommends that employers who have workers that are under these types of arrangements of hours; such as, a 4-day work week (9.5 ordinary hours per day) or a 9-day fortnight (8.44 ordinary hours per day), deduct the applicable ordinary hours for the day – where a full day of leave is taken.
If you have any questions regarding these shorter work cycles and leave calculations please contact the Workplace Relations Team on 1300 889 198 or wr@mea.asn.au
