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‘What is a day?’ High Court Decision: Mondelez


Last August, we advised MBA members of a Federal Court decision resulting from a dispute relating to the approval of an enterprise agreement covering workers at the Cadbury Factory in Tasmania. 

This agreement provided for 96 hours of personal leave per year for shift workers and 80 hours per year for other workers.  During the course of the approval, a dispute arose as to whether the leave entitlement met the minimum requirements provided in the Fair Work Act 2011 (Cth) and subsequently Mondelez (the employer) made an application for clarification of these issues in the Federal Court.  The Federal Court accepted the arguments made by the employee and union that employees were entitled to paid personal leave of a total of ten 12-hour shifts per year as a result of their ordinary hours of work.

The decision of the High Court now clarifies how the entitlement to paid personal/carer’s leave is calculated under s 96(1) of the Fair Work Act 2009 (Cth). It rejected the “working day” construction and instead held that what is meant by a “day” or “10 days” must be calculated by reference to an employee’s ordinary hours of work. “10 days” in section 96(1) of the Fair Work Act 2009 (Cth) is two standard five-day working weeks.

One “day” refers to a “notional day” consisting of one-tenth of the equivalent of an employee’s ordinary hours of work in a two-week period. Because patterns of work do not always follow two-week cycles, the entitlement to “10 days” of paid personal/carer’s leave can be calculated as 1/26 of an employee’s ordinary hours of work in a year.

MBA will review the decision and provide members with a detailed update on this decision next week.  To read a copy of the decision, click here.