On 21 August 2019, the Full Federal Court of Australia handed down a decision in Mondelez Australia Pty Ltd v AMWU [2019] FCAFC 138. The decision deals with the method of accruing and taking paid personal/carer’s leave for the purposes of the National Employment Standards under the Fair Work Act 2009.

In the decision, made on 21 August 2019, the majority of the Full Federal Court determined:

  • Full-time and part-time employees are entitled to 10 working days of paid personal/carer’s leave for each year of employment.
  • The leave protects those employees’ income when they are entitled to be absent from work due to illness or injury (or providing care or support to a family or household member who is ill, injured or suffering from an unexpected emergency).
  • The leave must be calculated in working days, not hours. A working day is the portion of a 24 hour period that an employee would otherwise be working.
  • An employee’s entitlement is expressly based upon time working for the employer and is expressly calculated in days.

The impact of this Decision may be far reaching including:

  • Every part time worker shall be entitled to personal/carers leave based on their working day;
  • Employees who work different shift patterns may be entitled to different personal/carers leave accruals.
  • Potential increased payroll complexity, in an effort to comply with the legislation as well as risk to organizational culture when entitlements differ between staff.
  • Organisations may face significant financial pressure when adhering to the new requirements.

The Australian Government and the company involved in the case, Mondelez Australia Pty Ltd, have applied to the High Court of Australia to appeal this decision. If the applications are granted, the appeal then needs to be heard and considered by the High Court. This process is expected to take some time. In the meantime, the 21 August 2019 decision is the current state of the law and applies to affected employers and employees.

For further information, please contact ermailbox@lasa.asn.au or 1300 111 636.