Cadbury Chocolates and sick leave – what do they have in common?

Two employees of Cadbury’s in Tasmania have just won a significant court victory which has changed the way many employees across Australia will be paid when they take Personal/Carer’s Leave.

Up to this point, where employees work a 10 or 12 hour shift, they would only be paid 7.6 hours when they took paid sick leave or carer’s leave. This is because historically, previous versions of Industrial Relations legislation set the accrual of such leave as a certain number of hours per year. So, in the old Workplace Relations Act 1996 employees were entitled to 76 hours of sick leave per annum. Because full time employees worked 7.6 hour shifts, five days per week, this translated into 10 days sick leave per year.

With the introduction of Work Choices in 2006 and then the Fair Work Act 2009 this was changed in the Act so that employees were now entitled to “10 days” sick leave per annum. The assumption was then made that this was just a slight re-wording of the old legislation and that employees were still only entitled to 76 hours leave over those 10 days.

The Full Bench of the Federal Court has now disabused employers of that notion. The Court decided that full time employees are entitled to 10 days “Personal/Carer’s Leave” per annum and that the employees should be paid for the number of ordinary hours they usually work on the day they are absent. So if an employee usually works 10 ordinary hours each Tuesday and they are sick on a Tuesday, they are entitled to be paid 10 ordinary hours for that day. If they fall sick every Tuesday for 10 weeks, they get 10 days paid at 10 hours per day.

It is therefore very important to note that if you roster your employees to work shifts longer than 7.6 ordinary hours, they must be paid the same number of hours they usually work when they are absent due to illness or injury, or if they are taking carer’s leave.

This does not mean that you must pay “regular overtime” on such absences. This change only relates to ordinary time hours and rates of pay. Please also remember that you do not pay shift penalties, or weekend loadings during periods of Personal/Carer’s Leave. All the hours paid during such absences are to be paid at the base rate of pay for day work.

The full decision of the Federal Court can be found here:

As always, please contact our IR Hotline if you have any queries. Or email

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