A large number of employers are exposed to substantial cost risks associated with a series of unfavourable decisions of the Fair Work Commission (Commission) and the Federal Court regarding the meaning of the expression ‘10 days of paid personal/carer’s leave’ in section 96 of the Fair Work Act.
In some of the decisions a ‘day’ has been interpreted as the ordinary working hours which fall within a 24 hour period. This interpretation would result in 12 hour shift workers receiving 120 hours of personal/carer’s leave per year rather than 76 hours and a part-time worker who works one day per week receiving the equivalent of 10 weeks of personal/carer’s leave per year. The interpretation is often unworkable and conflicts with widespread industry practice. Businesses with employees who work 8, 10 or 12 hour days/shifts and those with part-time employees are particularly impacted. This issue affects thousands of businesses and hundreds of thousands of employees.
Mondelez Australia Pty Ltd has an important case (AG2017/5020 – Application for Approval of the Mondelez Australia Pty Ltd, Claremont Operations (Confectioners & Stores) Enterprise Agreement 2017) currently before the Fair Work Commission. The case was listed for an initial hearing on 30 January 2018 at which Ai Group applied under section 615A(2) of the Fair Work Act 2009 for the President of the Commission to refer the matter to a Full Bench. At the time of writing, the President had not made a decision in response to the application.
If you would like more information about the entitlements to personal/carer’s leave, please contact Ai Group’s Workplace Advice Service on 1300 55 66 77.
Alternatively, if you would like advice about managing employee’s personal/carer’s leave entitlements, or drafting such entitlements into your enterprise agreement, policies or employment contracts, please contact your local employment, workplace and industrial lawyer in Sydney, Newcastle, Wollongong, Melbourne or Brisbane or email Ai Group Workplace Lawyers at firstname.lastname@example.org.