On 10 August, Justice O’Callaghan of the Federal Court issued directions in the Mondelēz v AMWU case. The case relates to the meaning of the expression “10 days of paid/personal carer’s leave” in section 96 of the Fair Work Act.

In the proceedings, Mondelēz International is seeking a declaration from the Federal Court relating to the meaning of the above expression. The relevant employees of Mondelēz work 12-hour shifts at the company’s Claremont plant in Tasmania.

The case has implications for most employers in Australia. An application has been made by Mondelēz for the case to be dealt with by the Full Court of the Federal Court. The Minister for Small and Family Business, the Workplace and Deregulation, the Hon Craig Laundy MP, has intervened in the case on behalf of the Commonwealth and is supporting the referral of the matter to the Full Court. The AMWU is opposing the matter being dealt with by the Full Court.

A hearing has been scheduled on 6 September before Justice O’Callaghan to deal with arguments about whether the case should be listed before the Full Court.

Ai Group Workplace Lawyers is representing Mondelēz, and has briefed Stuart Wood QC and Mr Dimitri Ternovski of Counsel. Minister Laundy is being represented by the Australian Government Solicitor, Mr Tom Howe QC and Ms Irene Sekler of Counsel. The AMWU is being represented by Ms Lucy Saunders of Counsel.

In payroll systems, personal/carer’s leave entitlements are typically recorded in hours, not days, on the basis of the number of ordinary hours that an employee works. For example, employees who work 38 hours per week are typically credited with 76 hours of paid personal/carer’s leave per year, regardless of whether their ordinary hours are arranged on the basis of 7.6, 8, 10 or 12 hours per day.

The current enterprise agreement agreed to by Mondelēz International states that the employees at the Claremont plant are entitled to 96 hours of personal/carer’s leave per year. This is a lot more generous than the 76 hours that employees are entitled to under the Fair Work Act if the Act is interpreted in the manner in which Ai Group and Mondelēz contends.

This important case follows a number of unfavourable decisions of relevance to the meaning of the phrase “10 days of paid personal/carer’s leave” under section 96 of the Fair Work Act, in circumstances where an employee works more than 7.6 ordinary hours per day/shift as part of their roster pattern. The decisions of a Full Bench of the FWC in RACV v ASU [2015] FWCFB 2881 and of the Federal Court in CFMEU v Glendell Mining [2017] FCAFC 35 and CFMEU v Anglo Coal [2016] FCA 689 all support an interpretation that a ‘day’ means the ordinary hours that the employee is required to work in a 24-hour period. Ai Group believes that this interpretation is not aligned with the legislative intention of the provisions, that it conflicts with widespread industry practice, and would lead to absurd outcomes (e.g. a part-time employee who works one day per week would arguably be entitled to the equivalent of 10 weeks of personal/carer’s leave per year).

The Explanatory Memorandum for the Fair Work Bill supports the view that the interpretation in the above decisions is not consistent with the legislative intention.

Members are urged to contact Ai Group for advice if faced with claims or other problems relating to this matter.

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 info@aigroupworkplacelawyers.com.au.

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