The National Employment Standards (NES) in the Fair Work Act provide that employees are entitled to accrue 10 days of personal leave per 12 months of continuous service. Where employees regularly work a standard 7.6 hour day in a 76 hour fortnight, this is not problematic. However, problems can arise where an employee works a non-standard or varying work pattern.
The Australian Workers’ Union (AWU) recently brought a dispute with AstraZeneca to the Fair Work Commission (FWC) to determine how personal leave should be treated.
AstraZeneca had three shift patterns. The employees on Roster One work 3 x 12 hour shifts per week, Roster Two work 7 x 10.28 hours each fortnight, and Roster Three work 19 x 8 hour days every 4 weeks.
The AWU argued that Roster One employees were entitled to accrue 10 x 12 hour days of personal leave, Roster Two were entitled to accrue 10 x 10.28 hour days of personal leave, and Roster Three were entitled to accrue 10 x 8 hour days of personal leave, despite the disparity this would create in terms of for example a Roster One employee accruing significantly more hours of paid personal leave than a Roster Three employee.
AstraZeneca argued, amongst other things, an approach consistent with the Explanatory Memorandum (EM) for the Fair Work Act, being that the NES provisions for 10 days personal leave in fact refers to the hours that would be worked on 10 standard days and that the personal leave provisions should be read in context with other provisions of the legislation which allowed for averaging of work hours.
The FWC rejected those arguments. The decision accepted the approach put by the AWU.
However the issue is not yet settled, with food manufacturer Mondelez International appealing to the Federal Court regarding a decision of the FWC about the personal leave entitlements in its enterprise agreement. Although the agreement provides for 96 hours of personal leave, an amount in excess of the 76 hours typically attributed to the 10 days of personal leave under the NES, Mondelez has 12-hour shift workers who would be entitled to 120 hours (ie 10 x 12 hour days of personal leave) under the AWU argument.
A hearing is scheduled for September 2018 to hear argument about referral of the matter to the High Court. In the meantime, the current state of the law suggests that an employee taking paid personal leave should be paid for the ordinary hours they were rostered to work that day and each such absence should be counted as one day of their 10 day per year entitlement. Employers may need to reconsider how they record employees leave accruals in order to reflect days rather than hours.