Hypothetical by Manny Wood Published in the Coffs Coast Advocate on 21 September 2019.
Mina owns and runs a business called “Shorelock Homes”, which provides 24-hour security services to resort complexes along the coast.
Mina employs Carol as a full-time security guard. Carol works an average of 38 hours per week on a 12-hour shift rotation. Mina ensures Carol is paid the correct penalties and loadings in accordance with the applicable Modern Award (Security Services Industry Award 2010).
Carol suffers a non-work-related illness and obtains a doctor’s certificate evidencing that she is unfit to work. Carol’s illness requires her to take ten shifts off work.
When Carol returns to work, Mina informs her that she does not have enough accrued hours of paid sick leave to cover the absences.
Carol disagrees, noting that she has not taken any other sick leave in the past year and that under the Fair Work Act 2009, she is entitled to at least ten “days” of sick leave per year of service.
Mina informs Carol that her paid sick leave entitlement is calculated on the basis of an average of 38 hours per week worked, and she is therefore entitled to a total of 76 hours of sick leave per year.
Carol argues that her sick leave entitlement is based on the number of “days” absent and should not be calculated on her average weekly hours. Mina maintains her position.
Carol decides to take the matter to the Fair Work Commission, arguing that her minimum entitlements under the Act are not being met.
The Commissioner considers the arguments and finds that if Mina’s interpretation of the Act were accepted, Carols accrued sick leave would be exhausted after only seven 12-hour shifts in a year, which is less than the minimum ten days Carol is entitled to under the Act.
The Commissioner finds that Carol is entitled to at least 10 days’ paid sick leave per year, even if that totals 120 hours.
If you would like Manny to address a particular legal issue, send your request to manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.
