Note: On August 13, 2020, the High Court handed down a decision about the method of accruing and taking paid personal/carer’s leave under the National Employment Standards. The High Court has found that the entitlement to 10 days of personal/carer’s leave will be calculated based on an employee’s hours of work, not days. 10 days of personal leave can be calculated as 1/26 of an employee’s ordinary hours of work in a year.

This overturns the decision outlined below by the Full Federal Court in August 2019.

The Full Federal Court’s decision on paid personal leave

The majority of the Full Federal Court handed down an important decision in Mondelez v AMWU & Ors [2019] FCAFC 138 that all full time and part time permanent employees are entitled to 10 working days of personal/carer’s leave (a.k.a. sick leave) per year, regardless of how many hours per day or days per week they work.

The National Employment Standards provide for 10 days personal leave per year, which accrues by reference to ordinary hours of work. The Court held that the natural and ordinary meaning of the words used in the Fair Work Act means that all employees are entitled 10 working days instead of 76 hours of personal leave per year, irrespective of how many hours are worked on any day.

While the decision is complex, it can be summarised as follows:

• Personal leave entitles an employee to be absent from work on a working day because of illness or injury, or to care for a family/household member
• An employee accrues 10 working days of personal leave for each year of service
• For every day of personal leave taken, a day is deducted from the accrued leave balance
• If a part-day of sick leave is taken, an equivalent part-day is deducted
• An employee is paid at their base rate of pay for all of the ordinary hours the employee would have worked on that working day, whether that is 4 hours, 8 hours or more.

What are the implications?

This has implications for employees who work outside the ‘traditional’ 38 hour, 5 day a week scenario:

More than 7.6 hours a day:


Workers who work a 12-hour shift are entitled 10 x 12 H = 120 hours of personal leave per year instead of 10 x 7.6 H or 76 hours. The same applies for those who work 8 hours a day: 10 days of 8 hours, instead of 76 hours.

Less than 7.6 hours a day:

Part time workers are also entitled the full 10 days of personal leave per year. If an employee works part-time for four hours a day, five day per week, they would be entitled to 10 x 4 H = 40 hours of leave. This scenario does not provide a change between the calculations in days or hours.

However, working part time for three eight-hour days per week would see an entitlement of 10 x 8 H = 80 hours instead of 48 hours, which would be the pro-rata amount.

Conversely, a part-time worker who works 2 ½ days a week would be deducted a full day’s personal leave when they take personal leave on the ½ day.