A decision has been made in the High Court today (13/08/2020) to reject unions’ arguments that shift workers that work longer than standard hours are entitled to additional paid personal/carer’s leave each year.

This decision overrules the Federal Court decision, handed down on 21 August 2019, which stated that shift workers should accrue paid leave based on the length of their shift, allowing 12-hour shift workers to accrue 120 hours of paid personal leave per year, as opposed to the standard 76 hours, based on a 7.6-hour working day.
Today, the High Court stated that, for the purposes of s96(1) of the Fair Work Act 2009 (Cth), it is “notional”, with a ‘day’ amounting to one-tenth of the equivalent of an employee’s ordinary hours of work in a two week period.

“The ‘working day’ construction adopted by the majority in the Full Court (and urged by the union parties in this Court) is not consistent with the purpose of s96 or the stated objectives of the Fair Work Act of fairness, flexibility, certainty and stability.”

In essence, this decision ensures equality among employees, regardless of hours worked. This will have implications for employers and employees particularly in the mining, construction, manufacturing and medical industries, which are highly dependent on shift workers.