Why you must be careful when expressing NES leave entitlements in terms of hours
By Lauren Drummond
The Personal/Carer’s Leave National Employment Standard (NES) in the Fair Work Act 2009 (Cth) entitles an employee to 10 days of paid personal/carer’s leave for each year of service with his or her employer.
Does this mean that someone who works more than 7.6 hours a day (e.g. a 12-hour shift worker) only receive 10 times 7.6 hours as their entitlement? Or are they entitled to (for example in the case of the 12-hour shift worker) 10 times 12 hours?
This question was canvassed in Mondelez Australia Pty Ltd (2018), when the FWC had to determine an application to approve an enterprise agreement. The agreement expressed the personal/carer’s leave entitlement as 80 hours per annum, rather than 10 days per annum as provided for under the NES.
The FWC expressed concern that employees covered by the proposed agreement working 12-hour days would not be entitled to their full 10-day NES entitlement.
Given an enterprise agreement cannot exclude the NES or any provision of it, the FWC requested an undertaking to be provided to address this issue. The employer, with the support of the Australian Industry Group and the Federal Government, requested the President of the FWC to refer the matter to a Full Bench of the FWC.
The President asked Vice President Hatcher to deal with the request. The Vice President dealt with it by rejecting it. In doing so, the Vice President observed that it had already been determined in RACV v ASU (2015) and other decisions of the FWC and the Courts. It has been stated that for the purpose of the NES:
- a ‘week’ of annual leave is an authorised absence from work during the working days falling in a seven-day period, and a ‘day’ of leave (whether of annual or personal/carer’s leave) is an authorised absence from the working time in a 24-hour period;
- the reference to ‘10 days’ is not to be read as meaning 10 periods of 7.6 hours each, or an entitlement to 760 paid hours of leave per annum;
- for example, if the number of hours normally worked by an 8-hour day worker and a 12-hour shift worker on a normal or rostered day of work are different, the statutory entitlement to 10 days leave (and pay) may result in a greater hourly entitlement (and overall pay) in some cases than in others, and
- the amount of leave deducted from an employee’s leave balance necessarily correlates with the amount of leave taken, so that if a week’s annual leave is taken, a week is deducted from the employee’s accrued annual leave balance, and if a day of annual leave or personal/carer’s leave is taken, a day is deducted from the employee’s accrued annual leave or personal/carer’s leave balance.
Therefore, if you express a personal/carer’s leave entitlement in an enterprise agreement in terms of 76 or 80 hours you will be undercutting the NES in the case of 12-hour shift workers.
However, if the agreement provides that any more beneficial provision of the NES takes precedence where there is an inconsistency between the agreement and the NES, then the agreement will require the employee’s personal/carer’s leave to be ‘topped up’ to the level of the NES entitlement.
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