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Personal/carer’s leave – more commonly known as sick leave – is one of the most fundamental and well-known entitlements provided for under the Fair Work Act.

But a recent decision of the Fair Work Commission has created uncertainty about the way this entitlement applies to shift workers in some cases.

The entitlement to paid sick leave under the Act is expressed in “days”, and an employee (other than a casual) accrues 10 such days per year.

It is uncontroversial that a full-time employee working 38 hours per week will be paid for the 7.6 hours they would otherwise have worked on each day sick leave is taken.

However, in a dispute brought by the Australian Workers Union, Deputy President Dean ruled one size does not fit all when it comes to shift workers.

The decision concludes that shift workers must be treated differently in cases where their usual hours of work exceed 7.6 per day (the standard for a full time worker).

The Deputy President determined where an employee takes a day of personal/carers leave then a day is deducted from their leave balance and the employee is paid for the ordinary hours they would have worked on that day. The entitlement to payment for the day may result in a greater entitlement (than 7.6 hours).

As things stand, this decision opens the door for widespread underpayment claims, reaching as far back as six years (the statutory time limit) and potentially running into millions of dollars across affected industries.

A separate test case, involving the same legal question, has been referred to the Full Court of the Federal Court following intervention by the Federal Workplace Minister.

The Full Court’s decision may provide greater certainty regarding the state of the law, but in the interim we encourage employers engaging shift workers to review their practices and contact our Employment, Safety and Migration team for guidance.

This article was written by Barney Adams, Associate – Employment, Safety and Migration.

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Sick leave in the spotlight: Fair Work Commission shifts approach to personal leave

16 August 2018
barney adams

Personal/carer’s leave – more commonly known as sick leave – is one of the most fundamental and well-known entitlements provided for under the Fair Work Act.

But a recent decision of the Fair Work Commission has created uncertainty about the way this entitlement applies to shift workers in some cases.

The entitlement to paid sick leave under the Act is expressed in “days”, and an employee (other than a casual) accrues 10 such days per year.

It is uncontroversial that a full-time employee working 38 hours per week will be paid for the 7.6 hours they would otherwise have worked on each day sick leave is taken.

However, in a dispute brought by the Australian Workers Union, Deputy President Dean ruled one size does not fit all when it comes to shift workers.

The decision concludes that shift workers must be treated differently in cases where their usual hours of work exceed 7.6 per day (the standard for a full time worker).

The Deputy President determined where an employee takes a day of personal/carers leave then a day is deducted from their leave balance and the employee is paid for the ordinary hours they would have worked on that day. The entitlement to payment for the day may result in a greater entitlement (than 7.6 hours).

As things stand, this decision opens the door for widespread underpayment claims, reaching as far back as six years (the statutory time limit) and potentially running into millions of dollars across affected industries.

A separate test case, involving the same legal question, has been referred to the Full Court of the Federal Court following intervention by the Federal Workplace Minister.

The Full Court’s decision may provide greater certainty regarding the state of the law, but in the interim we encourage employers engaging shift workers to review their practices and contact our Employment, Safety and Migration team for guidance.

This article was written by Barney Adams, Associate – Employment, Safety and Migration.