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What is the basis for the Fair Work Ombudsman's assertions that both:

  • part-time employees entitlement to leave is pro-rata, according to total hours of service as compared to full-time employees, and,
  • leave entitlements are unaffected by how the hours are spread over the week,

as pertains to personal/sick/carer's and annual/recreational leave?

If a HR system tracks accrued leave in units of days, should the reported balances get reduced if an employee adopts a compressed schedule (and increased if they revert to a standard schedule or otherwise reduce their average hours per work day)?

For context, quite different rules apply to other forms of leave (for example, for long service leave there is commonly a system of separate credits for full-time and part-time service; and for domestic violence leave, employees are entitled to the same amount whether they are full-time or even just casual). For personal and annual leave, the Australian Federal Fair Work Act, part 2-2 (National Employment Standards) div. 6 & 7A doesn't appear to distinguish between full-time and part-time.

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MONDELEZ AUSTRALIA PTY LTD v AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION KNOWN AS THE AUSTRALIAN MANUFACTURING WORKERS UNION (AMWU) & ORS; MINISTER FOR JOBS AND INDUSTRIAL RELATIONS v AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION KNOWN AS THE AUSTRALIAN MANUFACTURING WORKERS UNION (AMWU) & ORS [2020] HCA 29

A majority of the High Court rejected the "working day" construction and instead held that what is meant by a "day" or "10 days" must be calculated by reference to an employee's ordinary hours of work. "10 days" in s 96(1) is two standard five-day working weeks. One "day" refers to a "notional day" consisting of one-tenth of the equivalent of an employee's ordinary hours of work in a two-week period. Because patterns of work do not always follow two-week cycles, the entitlement to "10 days" of paid personal/carer's leave can be calculated as 1/26 of an employee's ordinary hours of work in a year.

So we deal with “notional days” that are measured in hours equivalent to 1/26 (or 1/13 for annual leave for non-shift workers). What an employees actual shift is is irrelevant.

Similarly, their accrued hours don’t change if their normal hours of work change.

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  • Thanks for the definitive source, how did you track it down?
    – benjimin
    Feb 7, 2023 at 2:14
  • I knew about it
    – Dale M
    Feb 7, 2023 at 7:02
  • I guess a prediction of how many work days the accrued hours will cover must depend on current average daily work hours.
    – benjimin
    Feb 7, 2023 at 8:43

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