The Full Federal Court handed down on 21 August 2019 a decision that has landed a sizable shift in how employers treat full and part-time employees in relation to personal/carer’s leave.
Previously, the National Employment Standards provided for 10 days personal leave for full-time employees for each year of service and pro rata for employees working smaller fractions for each year of service.
On 21 August 2019, the Full Federal Court of Australia handed down a decision dealing with how paid sick and carer’s leave accumulates and is taken under the National Employment Standards (NES).
The decision said:
The Australian Government and the company involved in the case, Mondelez Australia Pty Ltd, applied to the High Court of Australia to appeal this decision. The High Court granted these applications on 13 December 2019. This means an appeal of the Mondelez decision will be heard by the High Court. In the meantime, the decision made on 21 August 2019 is the current state of the law and applies to affected employers and employees.
This provision forms part of the National Employment Standards (NES). The NES apply to all employees regardless of any award, agreement or contract of employment.
While the decision made by the Federal Court may be overturned in the High Court, practices will have to make the call as to whether to grant the additional paid personal and carer’s leave. Obviously if you choose not to and this is challenged legally it may cost your business more in the long run in legal fees and reparations.
However, should you choose to pay per the current NES and the decision is overturned, you may have never incurred the additional expense.
Obviously this decision tree places organisations in relative limbo. Should you find yourself contemplating a staff member who has accessed more than their pro rata amount of personal/carers leave, the Federal Court ruling remains current law. GPSA’s advice therefore has to be that up to 10 days should be paid. The NTCER allows for five days to be paid in advance for each six month period.
This is a business decision. GPSA has not made this change to our employment agreement template yet, and any change likely to occur would be along the lines:
“personal/carer’s leave will be paid consistent with the National Employment Standards”.
This is because regardless of what is presently written into contracts, the NES effectively works as a safety net and would likely prevail if tested legally. However, if all part-time contracts were changed and then the High Court reversed the Federal Court decision – and you had changed your registrar’s contract to 10 days personal leave – the contract at the higher rate may prevail if legally tested. In effect, because what you agreed with your registar was higher than the minimum as outlined in the NES.
GPSA will keep a close eye on the appeal and keep you up-to-date on any changes as they arise.