In a landmark decision today the a majority of the High Court majority overturned an earlier by the full Federal Court from August 2019, which resulted in shift workers being awarded almost twice as many hours personal and carers leave than their non-shiftworking colleagues, despite them working the same number of hours per week, by arguing that a “day” of personal and carers leave should equal the number of hours the employee works on that “day”. The Decision today allays confusion and frustration from businesses who struggled to understand how such a ruling could be considered fair or be implemented in practice and affirms the widely held construction that 10 days paid personal leave is equivalent to 2 ordinary weeks work/pay/hours.

The Mondelez Decision in August 2019 where shiftworkers working 3 12 hour shifts were awarded 120 hours of personal and carers leave per year and their colleagues who were working 38 hours per week on a 7.6h basis were left with 76 hours personal and carers leave per year, sent shock waves through industry. Businesses were facing unknown leave balances and uncertainty on how to account for part time employees entitlements, particularly when hours are varied regularly.

The case drew such concern that IR Minister Christian Porter appealed and joined the process.

The Decision today was not unanimous, with Justice Gageler finding that the Federal Court decision should stand and that the appeal should be dismissed.

Despite the distension the Decision is now the overriding judgement and stated “The expression ’10 days’ in s96(1) of the Fair Work Act 2009 (Cth) means an amount of paid personal/carer’s leave accruing for every year of service equivalent to an employee’s ordinary hours of work in a week over a two-week (fortnightly) period, or 1/26 of the employee’s ordinary hours of work in a year. A ‘day’ for the purposes of s 96(1) refers to a ‘notional day’, consisting of one-tenth of the equivalent of an employee’s ordinary hours of work in a two-week (fortnightly) period. The ‘working day’ construction adopted by the majority in the Full Court (and urged by the union parties in this Court) is not consistent with the purpose of s96 or the stated objectives of the Fair Work Act of fairness, flexibility, certainty and stability,” said Chief Justice Kiefel and justices Nettle and Gordon.

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Elisha Radwanowski BCom(HRM&IR)

Executive Manager for Employment and Training