Section 96 of the Fair Work Act provides that an employee is entitled to 10 days of paid personal/carer’s leave. You would imagine that this would be straightforward. After all, we all know what a day means.
In the modern industrial world, the answer is less clear. Traditionally, many workers work 7.6 hour a day. Calculation of their entitlements is relatively straightforward. Modern shift patterns have created challenges. Some worker’s work a 12 hour shift.
The Full Federal Court recently considered the case of Mondelez Australia Pty Ltd and the AMWU. The case focused on workers at the Cadbury chocolate factory in Tasmania. Two of those workers Brendan McCormack and Natasha Triffitt worked 12 hour shifts and normally 36 hours per week. They argued that the 10 days of personal leave should be paid at 12 hours a day. Effectively they argued that they are entitled to 120 hours of paid personal/carers leave a year.
The company disagreed and argued that they were entitled to only 76 hours under section 96 and 96 hours per year under their enterprise agreement. In a judgement handed down on 21 August 2019 the Full Court of Federal Court of Australia confirmed that those two employees were entitled to 120 hours personal/carer’s leave a year.
Mondelez appealed to the High Court. The Minister for Jobs and Industrial Relations has intervened in the proceedings. The High Court has granted special leave to appeal. The appeal was heard on 7 July 2019 and the will be eagerly awaited and should be handed down within the next few months.
This decision will have implications on all employers who employ workers who work days longer than 7.6 hours. If the appeal is dismissed employees may be entitled to receive substantially more personal/carer’s leave.
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