Personal leave covers “elective cosmetic surgery”: FWC

In January, a Brisbane-based Member of the Fair Work Commission, while determining a dispute under an enterprise agreement, helpfully reinforced that personal leave extends to an employee undergoing any type of “elective” surgery, subject to the absence being supported by suitable evidence.

The dispute ran across multiple dates throughout 2024, having been brought by the Australian Worker’s Union (AWU), who questioned the employer’s application of its “extraordinarily generous paid personal leave entitlements” and associated absenteeism management protocol, as detailed within its 2022 enterprise agreement (EA). Specifically, the AWU challenged the employer’s interpretation of the EA, as it applied to a Union member who required “elective knee surgery”, which was due to incapacitate him for approximately three months in the lead up to his retirement.

Commissioner Hunt determined the employer correctly applied the unique provisions of the 2022 EA, which entitled the company to cease payment for genuine personal leave absences, subject to certain criteria having first been met. This meant the worker did not receive payment for the 10 weeks’ personal leave he accessed for his procedure and the subsequent period of incapacity, which preceded his retirement in October 2024.

Although not critical to the dispute, Commissioner Hunt observed generally that “the elective nature of the surgery is an irrelevant consideration” to determining whether an employee is entitled to access personal leave when absent, further clarifying:

“Employees are entitled, pursuant to the NES to take paid leave from work whether any medical treatment is unplanned or elective. Employees are entitled to undergo elective cosmetic surgery, if they so please. Their entitlement to paid sick leave for elective cosmetic surgery is no different than their entitlement to paid sick leave if they have a burst appendix. If medical certificates are produced declaring the employee to be too ill to attend for work, they are entitled to be absent from the workplace.”

Australian Workers’ Union, The v Cement Australia Pty Limited T/A Cement Australia [2025] FWC 137 (15 January 2025)