Contemporary issue: leave entitlements: HSC Legal Studies

What this dot point is asking

Leave is one of the four contemporary issues that must be studied in the Workplace option of the Legal Studies Stage 6 Syllabus (2009). You must identify and investigate the issue and evaluate the effectiveness of legal and non-legal responses to it.

In 2024, Question 30(b) paired leave with termination of employment. NESA's feedback asked for detailed treatment of both issues and for cases, which many students lacked for leave. This page gives you three: Mondelez v AMWU (2020), CFMMEU v OS MCAP (2023) and Chandler v Westpac (2025). Leave is also where changing community values about caring, gender equality, family violence and work-life balance show most clearly in the law.

The answer

Identifying the issue

• Balancing work and care. Most households depend on two incomes, and workers care for children, older parents and family members with disability. Without leave and flexibility, carers (mostly women) reduce hours or leave work, widening the gender pay and superannuation gaps.
• Family and domestic violence. Victim-survivors need time to attend court, find housing and keep their job, which is often essential to leaving a violent relationship.
• Health and fatigue. Leave protects physical and mental health; unused leave and "always on" work contribute to burnout.
• Insecure work. Casual employees receive a 25 per cent loading instead of paid annual and personal leave, so illness or caring means lost pay. More than half of award-reliant workers are casual (FWC, June 2026).
• Compliance. Leave entitlements are sometimes denied, miscalculated or not paid out on termination.

Legal responses: the National Employment Standards

Recent law reform

1. Paid family and domestic violence leave

Unpaid FDV leave (5 days) was added to the NES in 2018. The Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022 replaced it with 10 days' paid leave, available from the first day, including for casuals, paid at the full rate the employee would have earned, from 1 February 2023 (1 August 2023 for small business). Since 2023, the general protections also prohibit adverse action because an employee is subject to family and domestic violence.

2. Paid parental leave

The Paid Parental Leave Act 2010 (Cth) provides government-funded Parental Leave Pay at the national minimum wage. It has been extended every year since 2023, reaching 26 weeks (130 days) for children born or adopted from 1 July 2026. For children born or adopted from 1 July 2025, the ATO pays a 12 per cent superannuation contribution on Parental Leave Pay (paid from July 2026), addressing the superannuation gap faced by women. From July 2026, 4 weeks are reserved for each parent in a couple on a "use it or lose it" basis, to encourage fathers and partners to take leave.

3. Portable long service leave

Long service leave traditionally rewards 10 years with one employer, which excludes workers who move between employers in the same industry. NSW has portable schemes for building and construction and contract cleaning, and from 1 July 2025 the Community Services Sector (Portable Long Service Leave) Act 2024 (NSW) lets community services workers accrue long service leave across employers, with eligibility after seven years in the industry.

4. Flexibility and disconnecting

Leave is only part of work-life balance. The Secure Jobs, Better Pay Act 2022 strengthened the right to request flexible working arrangements (s 65) from 6 June 2023: employers must respond in writing within 21 days, genuinely discuss the request and give reasons, and the FWC can arbitrate. In Chandler v Westpac Banking Corporation [2025] FWC 3115, the FWC ordered Westpac to let a long-serving employee work from home to manage school drop-offs, because Westpac had not responded within 21 days, gave no reasons with its initial refusal and had no reasonable business grounds. The right to disconnect (s 333M, from 26 August 2024) lets employees refuse unreasonable after-hours contact. Victoria's Equal Opportunity Amendment (Work from Home) Bill 2026, which would create a right to work from home two days a week, was referred to a parliamentary committee on 10 September 2026 and is not yet law.

Courts and tribunals interpreting leave

• Mondelez Australia Pty Ltd v AMWU [2020] HCA 29 (13 August 2020). Two employees worked 12-hour shifts, three days a week. The union argued "10 days" of personal/carer's leave meant 10 working days (120 hours). By 4 to 1, the High Court held a "day" is a notional day of one-tenth of the employee's ordinary hours in a fortnight, so full-time employees receive about 76 hours regardless of shift pattern. The decision promotes equality between employees and certainty for employers.
• CFMMEU v OS MCAP Pty Ltd [2023] FCAFC 51 (28 March 2023). Mine workers were rostered to work on Christmas Day and Boxing Day without being asked. The Full Federal Court held that simply rostering an employee is not a request; the employer must genuinely ask, leaving the employee free to refuse. It strengthened employees' control over public holidays.
• Chandler v Westpac (2025) shows the FWC enforcing the strengthened flexible work rights.

Non-legal responses

• Unions campaigned for paid FDV leave (the ACTU's campaign led to FWC award clauses and then the 2022 Act) and bargain for leave above the NES, such as paid parental leave from employers, additional sick leave and gender affirmation leave.
• Employers increasingly offer employer-funded parental leave, flexible work and wellbeing leave, partly to attract staff and partly because WGEA reports on it and large employers must now set gender equality targets.
• Advocacy groups (such as the Parenthood and women's organisations) campaigned for longer paid parental leave and super on paid parental leave.
• The media coverage of burnout, return-to-office mandates and family violence has shaped community expectations.

Evaluating the effectiveness of legal and non-legal responses

Judgement. Legal responses to leave are effective to a large extent for permanent employees and have become markedly more responsive since 2022, reflecting changing values about violence, caring and gender equality. Their effectiveness is limited for casual and insecure workers, who receive little paid leave, and by the fact that flexibility is still largely a right to ask rather than to receive. The steady expansion of paid parental leave and FDV leave shows law reform following community values; whether leave is shared more equally between parents is the next test.

In one sentence

The National Employment Standards and the Paid Parental Leave Act give workers annual, personal, compassionate, family violence, parental, community service and long service leave and public holidays, recently extended by paid FDV leave, 26 weeks' paid parental leave with super, portable long service leave and stronger flexible work rights, but casual workers and those who can only "request" flexibility remain poorly protected.

Try this

Q1. Outline TWO leave entitlements under the National Employment Standards. (4 marks)

• What the marker wants. Two types with the amount, who is eligible and one detail each.

Q2. Explain how law reform has responded to family and domestic violence in the workplace. (6 marks)

• What the marker wants. Unpaid leave (2018), paid leave (2023) and its features, the new protected attribute, and an evaluation.

Q3. Assess the effectiveness of the right to request flexible working arrangements. (8 marks)

• What the marker wants. Section 65 and the 2023 changes, Chandler v Westpac (2025), limits of a right to request, the Victorian Bill, and a judgement.