Decision made in the Full Federal Court clarifies personal leave for now

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The Mondelez Australia Pty Ltd v AMWU [2019] FCAFC 138 (‘Mondelez’) case changed the way personal/carer’s leave is viewed for permanent employees.

The outcome of Mondelez has provided some clarity around personal leave entitlements for those employees who work shift work.

The decision from Mondelez is that personal/carer’s leave will be accrued as 10 full working days per year (or the equivalent thereof) and not to be calculated as an average of weekly hours. A working day has been defined as the hours an employee would work within a 24-hour period.

A snapshot of the case: 

  • The employer had employees working 36 hours per week but in different shift configurations.
  • One group worked the 36 hours in 5 days and the other in 3 days.
  • The personal leave was accrued at 72 hours per year based on the weekly hours. Meaning employees working 3 days could only take 6 full 12 hour days compared to 10 days at 7.2 hours per year.
  • Mondelez stated it was fair for all employees to accrue the same personal leave hours per year based on average weekly hours.

The decision clarifying ’10 full working days’ means employees working longer hours in a day the ability to have 10 full days of work off each year for personal or carer’s leave (which will result in more than the traditional 76 hours).

However the Morrison Government as well as Mondelez Australia Pty Ltd have indicated they will appeal the decision. In the meantime, employers should ensure that they calculate the personal/carer’s leave in accordance with each employee’s particular ‘working day’ based on a “portion of a 24-hour period that would otherwise be allotted to work” until the appeal has been heard.

Kate David is a solicitor – employment and litigation at Osborn Law

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