You'd think the meaning of "day" should be clear. However, interject a bunch of lawyers, a union, a few judges, and a hard-fought argument over personal leave entitlements, things get confusing. The outcome though, following a decision by the Full Federal Court, has left employers reeling as a pair of Cadbury chocolate factory workers were found to be entitled to 120 hours of personal leave per year.
The Fair Work Act gives every employee (other than casuals) ten "days" paid personal/carer's leave a year. The days are to be used when you're either unwell or looking after a family member who's unwell.
Historically, a "day" has been interpreted as a "notional day" based on ordinary hours per week which can be broken down as follows:
- Full-time employees work 38 hours per week.
- Spread across a standard five day working week, that's 7.6 hours per day.
- Therefore, employees get 76 hours (10 notional days) personal/carer's leave per year.
However, the Cadbury employees and their union argued that "day" means an actual day, being the 24-hour period, and you should get off any hours of work that may fall within it. The issue was, the Cadbury employees worked 12-hour shifts, so ten actual days of personal leave resulted in 120 hours per year.
In a split decision, the Federal Court sided with the employees and union, agreeing that a "day" had its natural meaning. This is surprising considering the "notional day" approach is standard industry practice. Further, adopting the natural meaning of "day" gives rise to heaps of inconsistencies, especially when it comes to part-time employees who work varying weekly hours. The majority, however, said these inconsistencies weren't enough to escape the words of the Act, which in their view, refer to a literal day when it comes to personal leave.
While a concern for employers, this won't be the end. An appeal is surely on the cards and with the government intervening and siding with the losing "notional day" argument the first time around, it will be keeping track of this issue.
We do not disclaim anything about this article. We're quite proud of it really.