Leave entitlement expressed in hours rather than days per year may contravene NES

A recent case of the Fair Work Commission (FWC) has provided guidance on how to calculate the statutory entitlement to paid personal leave/carer’s leave for shiftworkers (Mondelez Australia Pty Ltd).

The issue arose in the context of an application to approve an enterprise agreement. The agreement expressed the entitlement to personal/carer’s leave as 80 hours per year, rather than 10 days per year as provided for under the National Employment Standards (NES) in s 96 of the Fair Work Act 2009 (Cth).

On behalf of the employer, the Ai Group argued that the reference to ’10 days’ should be read as meaning 10 periods of 7.6 hours each, or an entitlement to 76 hours of annual leave per year, but the FWC disagreed. It held that the term ‘day’ is to be given its ordinary meaning and that an employee is entitled to be absent for 10 days on personal/carer’s leave and be paid their ordinary hours.

In the case of a 12-hour shiftworker, this means that the statutory entitlement to 10 days’ leave may equate to a higher hourly entitlement than 80 hours per year.

Where an enterprise agreement expresses a leave entitlement in terms of hours per year rather than days, to avoid contravening the NES it may be necessary to include a clause specifying that the employer will top up any shortfall under the agreement as compared to the NES.

Read the full text of the Commission’s decision here: Mondelez Australia Pty Ltd [2018] FWC 2140.

If you need assistance in these matters please contact  gethelp@workersfirst.com.au or call (07) 3807 3807.