How to calculate leave entitlements under the Fair Work Act

How to calculate leave under the Fair Work Act

There has been some controversy about how leave is calculated under the Fair Work Act. For example is a shift worker who works 12 hour shifts entitled to 10 days of leave calculated at 12 hours, or 10 days at the standard working day of 7.6 hours? And should leave entitlements be recorded by an employer in hours or days?

The following principles emerge from the cases at the footnote.

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 annual or personal or carer’s leave is an authorised absence from the working time in a 24 hour period, and the reference in the NES to “10 days of personal/carer’s leave” is not to be construed as meaning 10 periods of 7.6 hours  or an entitlement to 76 paid hours of leave per year.

Accordingly if the number of hours normally worked by an employee who customarily works an 8 hour day and a 12-hour shift worker on a normal or rostered day of work are different, the statutory entitlement to 10 days paid leave may result in a greater hourly entitlement and that overall pay in some cases than in others.

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.

See Mondelez Australia Pty Ltd [2018] FWC 2140 RACV v ASU [2015] FWCFB 2881  been