The High Court is set to hear the crucial Mondelez leave test case on 7 July.
A full court will hear argument over the interpretation of the NES entitlement at s96(2) to 10 days of personal/carer’s leave for each year of service.
As we indicated in our Briefing last year, a full Federal Court majority last August held that two 12-hour shift workers at a Cadbury chocolate factory are entitled to 10 12-hour days of paid personal/carer’s leave, rather than 10 shifts of 7.6 hours. Justices Mordy Bromberg and Darryl Rangiah accepted the AMWU’s interpretation of the NES entitlement at s96(1), which provides that employees are entitled to 10 days of personal/carers leave per year of service.
According to the union, because the NES mandates a minimum of 10 days and the two employees worked 12-hour shifts, this means they are entitled to 120 hours of paid time off in the year, instead of the 76 hours that Mondelez bases on 38 ordinary hours a week.
The consequence of this decision, as outlined by the Fair Work Ombudsman, is that all full-time and part-time staff are entitled to 10 days of Personal/Carers leave per year.
In his submission to the High Court, Federal IR Minister Christian Porter seeks to have the Federal Court’s interpretation set aside and replaced with a declaration that:
“The expression ’10 days’ in s96(1) of the FW Act comprehends an amount of paid personal/carer’s leave accruing for every year of service equivalent to an employee’s usual weekly hours of work over a 2 week (fortnightly) period.”
Mondelez in its submission seeks a declaration that s96 of the Fair Work Act entitles the two shift workers at the centre of the case to “72 hours of paid personal/carer’s leave per year of service”.
Until there is a ruling by the High Court and this matter is definitively resolved we continue to suggest that schools should:
- Continue with current method for tracking leave,
- Look individually at any staff who have exhausted personal leave and do a manual calculation for them only to use this (potentially more generous) method of accounting for leave and grant them any additional leave,
- Once this is resolved, implement any other necessary adjustments to balances for current staff,
- On request, look at any potential underpayments of former staff.
Schools following this approach should be aware that it may not strictly meet the legal requirements as they currently apply, you will need to ensure that you are comfortable in doing so at this time.