Accruing Paid Sick and Carer’s Leave


24 Aug, 2020

How long is an employees day, and what does that mean when it comes to accruing time for sick and carer’s leave?

What seems like a simple question is one that ended up before the High Court of Australia after being hotly contested through the lower courts.

The matter came about from a case between Mondelez Pty Ltd (the owners of the Cadbury factory in Tasmania) and the AMWU.

Employees at the Cadbury factory work three 12-hour shifts a week. Under the National Employment Standards, employees were entitled to 10 days (or 96 hours) of carer’s or personal leave a year.

The question in contention was how long is a “day”?  Is the ‘notional day’ consisting of the employee’s average daily ordinary hours based on an assumed five-day working week  (the employees average ordinary hours divided by five), or is a calendar day or 24 hour period?

If a worker took a day of leave, they had 12 hours deducted from their 96 hours total, whereas employees who were office-based only had 7.2 hours deducted from their 96 hours total. These shift workers exhaust their entitlement in less than ten days as a result.

The union argued that these shift workers should be entitled to 120 hours of unpaid leave, equivalent to ten 12-hour shifts, and the Federal Court ruled in their favour.

The matter was taken on appeal to the High Court, which overturned the Federal Court decision by a 4-1 majority and found in favour of Mondelez.

Chief Justice Susan Kiefel, Justice Geoffrey Nettle and Justice Michelle Gordon determined that:

  • The entitlement to 10 days of personal/carer’s leave under the NES is to be calculated on the employee’s ordinary hours of work, not working days.
  • 10 days of personal/carer’s leave is calculated as 1/26 of an employee’s ordinary hours of work in a year.

What this means is that personal/carers leave accrues in hours and not working days.

If you employ shift workers, you need to double-check your payroll calculations to ensure that their hours are calculated correctly.

The Fair Work Ombudsman has updated their leave calculators to ensure correct calculations are made.

More importantly, they have re-issued the Fair Work Information Statement to reflect these changes. Make sure you provide all new employees with the latest version of the statement that incorporates these changes.

Instant HR Policies & Procedures Manual

Need help with your HR?

The Instant HR Policies and Procedures Manual saves weeks of work in creating compliant human resources policies for your team.


HR Author and Lecturer with over 25 years' experience in human resources and workplace relations in Australia. Lead Author of Instant HR Policies & Procedures, NDIS Direct Employment HR Manual, and Employee Performance Reviews: Tips, Templates and Tactics.

About Us

We are an Australian human resources business specialising in small businesses and not for profits, based in Brisbane, Australia.


If you are an Employee and need HR Advice, call Fair Work Australia 13 13 94



Our Most Popular HR Product

Recent Posts

Related Posts

2024 Minimum Wage Increase – 3.75%

2024 Minimum Wage Increase – 3.75%

The Fair Work Commission has decided to raise the national minimum wage and award wages by 3.75% as part of their Annual Wage Review. This brings the national minimum wage to $24.10 per hour or $913.91 per week for a full-time worker (based on a standard 38-hour...

read more
Paid Parental Leave Changes from 1 July 2024

Paid Parental Leave Changes from 1 July 2024

The passage of the Paid Parental Leave Amendment (More Support for Working Families) Bill 2023, saw several extensions to Paid Parental Leave. Extended Paid Parental Leave Duration: The bill amended the Paid Parental Leave Act 2010 to gradually increase the maximum...

read more