17 December 2019

High Court grants special leave to appeal the controversial decision of the full Federal Court regarding personal leave

Last Friday, the High Court granted special leave to appeal the controversial decision of the full Federal Court regarding personal leave in Mondelez Australia Pty Ltd v AMWU & Ors [2019] FCFCA 138.

In August, Justices Bromberg and Rangiah (O’Callaghan dissenting) ruled the correct interpretation of a ‘day’ in section 96(1) of the Fair Work Act 2009 (Cth) (FW Act) was the ‘portion of a 24 hour period that would otherwise be allotted to working’. The decision has resulted in workers on 12 hour shifts being entitled to 120 hours of personal leave per year overturning the longstanding and widespread practice that full time employees are entitled to 76 hours of personal leave per year irrespective of rostered hours or shift patterns.

For more detail on this landmark decision see our earlier article here.

The decision has left employers uncertain on how to calculate leave entitlements under the FW Act with Mondelez International commenting it has created "inequality between employees in the same workplace who complete the same work however on different rosters". IR Minister Christian Porter also weighed in on the debate stating the decision had to be appealed given the consequences to employers of exposure of up to a further $2 billion per year
in paying employee leave entitlements based on this interpretation of the statutory provisions. 

Employers should watch this space as the outcome of the appeal has significant potential implications from both a cost and payroll management perspective where non-standard shift arrangements are utilised as well as for part time employees’ leave entitlements.

We expect the appeal to be heard in the first half of 2020.


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