Changes to sick leave entitlements

Hi Bare Bones Consulting, can you clarify what sick leave part-time and casual employees are entitled to?

Great question…and one that’s been messing with the heads of employers as a result of a recent full Federal Court decision. Let’s get some context using terminology from the Fair Work Act and National Employment Standards (NES) so we’re on the same page.

Sick and carers leave (also known as personal leave or personal/carers leave) is designed to help an employee deal with personal illness or injury, caring responsibilities and family emergencies. Personal leave, sick leave and carers leave are combined into a single entitlement of 10 days each year for full-time and part-time employees.

Casual employees do not have an entitlement to paid sick or carers leave annual leave. They are however entitled to other unpaid forms of leave, such as unpaid carer’s leave and unpaid compassionate leave.

On 21 August 2019, the Full Federal Court of Australia handed down a decision dealing with how paid sick and carer’s leave accumulates and is taken under the National Employment Standards. The decision said that:

• full-time and part-time employees each get 10 days of paid sick and carer’s leave for every year of employment
• paid sick and carer’s leave accumulates in days, not hours.

The Australian Government and the company involved in the case (Mondelez Australia Pty Ltd), applied to the High Court of Australia to appeal this decision. The High Court granted these applications on 13 December 2019. This means an appeal of the Mondelez decision will be heard by the High Court. In the meantime, the decision made on 21 August 2019 is the current state of the law and applies to affected employers and employees.

The decision has caused confusion in employers with part-time workers because historically, the personal leave entitlement of part-timers has been on a pro-rata basis. However, the recent Full Court decision makes clear that part time employees are entitled to 10 days of paid personal leave per year, with a “day” amounting to the employee’s usual shift.

The Fair Work Ombudsman website has updated information on this topic available here.

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