In August 2019, the Federal Court found in favour of workers at a Cadbury factory who were arguing that as they regularly worked 12-hour shifts, three days a week they should receive ten 12-hour days of sick leave each year, instead of the maximum of 76 hours a year that their employer believed they were entitled to.
On 13 August 2020, the High Court overturned the Federal Court’s ruling.
The following information regarding Personal/Carer’s Leave is accurate as of 18 August 2020
Are Part-Time Employees Entitled to Sick Leave?
This information is only relevant to businesses covered by the Fair Work Act 2009.
As a business owner, employing part-time employees can make great business sense. It allows you to use highly experienced people without the expense of a full-time staff member, as well as increases your ability to respond to peaks in demand.
But as handy as they are as a solution to staffing issues, are part-time employees also entitled to sick leave? And if so, is it at the same rate as full-time employees, or paid on a pro rata basis?
Do Part-Time Employees Get Paid Sick Leave?
Under the National Employment Standards (NES), permanent part-time employees are entitled to a pro rata amount of sick leave based on the number of ordinary hours worked in a two-week fortnightly period, or 1/26th of the employee’s ordinary hours of work in a year, per year of service. The entitlement accrues progressively throughout a year of service and untaken leave rolls over into following years of service. Sick leave must be accrued, and taken, in hours.
For instance:
a part-time employee who regularly works 19 hours per week accrues 38 hours of sick leave over a year of service. If the employee took a week’s sick leave, the employee would be paid 19 hours of leave.
a part-time employee who work 36 hours per week in three 12-hour shifts is entitled to 12 ordinary hours per day of sick leave taken. When this employee takes a full sick day, 12 hours are deducted from their sick leave balance (provided they have accrued this amount) and they are paid 12 hours for that day.
How to Calculate Sick Leave for Part-Time Employees
The amount of sick leave will be calculated on the basis of an accrued annual entitlement and part-time employees will receive an amount pro-rata to the entitlement of your full-time employees. For example, a full-time worker working five days a week may receive 10 days of sick leave in a year of service, or 76 hours of sick leave if working 38 ordinary hours a week. Therefore, a part time worker working 19 hours a week would then receive 38 hours of sick leave in a year of service.
The leave year starts on each employee’s start date, with their entitlement accruing from there and rolls over year to year. In other words, the balance at the end of each year carries over to the next year. However, employees are not entitled to have accrued personal leave paid out on termination, unless it is specified in their contract of employment, Award or Enterprise Agreement.
Remember, if an employee is entitled to sick leave, they must be paid at least their base rate of pay for their ordinary hours of work whilst on personal/career’s leave, unless their Award, Enterprise Agreement or contract provides a greater entitlement.
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Frequently Asked Questions
What Qualifies as a Sick Day?
Any day (or part day) where the employee cannot work because of personal illness or injury. This can include stress and pregnancy related illnesses. These days can also be used when an immediate family member (as defined by the Fair Work Act) or member of the employee’s household requires care and support because they are ill or injured or due to an unexpected emergency.
How Many Paid Sick Days Do Part-Time Employees Get?
1/26th of their ordinary hours worked. When the leave is taken, the employee is paid in sick leave the hours they would have ordinarily worked on that day to the extent that they have accrued paid sick leave. (i.e.: 12 hours worked across 3 shifts equals a normal working day of 4 hours, so 24 hours of paid sick leave per year to be paid as hours when the leave is taken.)
How Many Sick Days do Full-Time Employees Get a Year?
Full-time employees also get 10 days’ sick leave for every year of service. For a full-time employee working 38 ordinary hours a week, this equates to 76 hours of sick leave for each year of service.
Does Sick Leave Accrue For Part-Time Employees?
Yes. Just like for a full-time employee, a part-time employee’s sick leave entitlement accumulates over the course of a year, calculated from the employee’s first day of work. This accumulation continues, even when the employee is on paid leave (but not unpaid leave). The balance at the end of each year carries over to the next.
Can an Employer Refuse to Pay Sick Pay?
Under certain circumstances: yes. For instance, as an employer you are entitled to ask an employee to show evidence, such as a medical certificate, to prove that they were actually sick on the day in question. If the employee cannot provide that, then they may not be entitled to be paid for their sick leave, depending on your policies, contracts, an Award or Registered Agreement and how the business has dealt with this scenario before.
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