{"id":1181,"date":"2019-11-08T08:24:22","date_gmt":"2019-11-07T22:24:22","guid":{"rendered":"http:\/\/workplaceculturematters.com.au\/?p=1181"},"modified":"2019-11-08T08:24:24","modified_gmt":"2019-11-07T22:24:24","slug":"how-long-is-a-day","status":"publish","type":"post","link":"https:\/\/workn.net.au\/?p=1181","title":{"rendered":"How long is a day?"},"content":{"rendered":"\n

The law is an occupation that deals\nprimarily with language.  Words have both\nan ordinary meaning, and a legal meaning. \nLawyers and parties to litigation will often ask the courts to define the\nlegal meaning of words, when the ordinary meaning is plainly obvious. While\nthis may seem a waste of the court\u2019s time and resources, this can sometimes be\ncritical for the interpretation of legislation, as well as contractual\narrangements. <\/p>\n\n\n\n

In a blog a couple of years ago, my\ncolleague Brian Powles looked at the legal\nmeaning of the word \u2018because\u2019<\/a> in relation to Part 3-1 of the Fair Work\nAct 2009<\/em> (Cth). <\/p>\n\n\n\n

The Federal Court of Australia was again recently asked to define another very \u2018ordinary\u2019 word.\u00a0 What is a \u2018day\u2019, in relation to paid personal\/carer\u2019s leave under the National Employment Standards (the NES<\/strong>). <\/p>\n\n\n\n

Section 96(1) of the Fair Work Act\n2009<\/em> (Cth) (the FW Act<\/em><\/strong>) provides employees with a right to 10\ndays<\/em> of paid personal\/carer\u2019s leave, with the result of how the court\ndefines a day, affecting the total leave hours certain employees would be\nentitled to. An employee can take paid personal\/carer\u2019s leave if they are sick\nor injured, or if they need to provide care or support to an immediate family\nmember, or a member of their household who is sick, injured, or has an\nemergency.<\/p>\n\n\n\n

Case<\/strong><\/p>\n\n\n\n

The case was Mondelez v Automotive, Food, Metals,\nEngineering, Printing and Kindred Industries Union known as the Australian\nManufacturing Workers Union (AMWU) <\/em>[2019]\nFCAFC 138<\/a>. Mondelez\u2019s\nemployees work 36 hours per week. Some employees work their 36 hours over five\ndays, working 7.2 hours a day. Other employees complete their 36 hours in three\ndays, working 12 hours per day. Under the Mondelez Australia Pty Ltd,\nClaremont Operations (Confectioners & Stores) Enterprise Bargaining\nAgreement 2017<\/em> (the Enterprise Agreement<\/strong>) employees who worked 12\nhour shifts were allowed 96 hours per year in paid personal carer\u2019s leave. Employees\nwho worked 7.2 hour days were allowed 80 hours per year. Mondelez sought two declarations\nfrom the Federal Court of Australia:<\/p>\n\n\n\n

  1. When a 12 hour shift employee takes paid personal\/carer\u2019s leave they are to be deducted 12 hours from their accrued hours of paid personal\/carer\u2019s leave; and<\/li>
  2. Mondelez employees\u2019 entitlement to paid personal\/carer\u2019s leave was more beneficial under the Enterprise Agreement compared to the \u201810 days\u2019 under the NES. <\/li><\/ol>\n\n\n\n

    The majority judgment of Justices\nBromberg and Rangiah held that the declarations sought by Mondelez could not be\nmade. <\/p>\n\n\n\n

    Submissions were made by Mondelez and\nthe Australian Manufacturing Workers Union (the AMWU<\/strong>) on the definition of\na \u2018day\u2019 for paid personal\/carer\u2019s leave in the NES. Mondelez submitted that a\n\u2018day\u2019 was calculated by dividing an employee\u2019s weekly hours by the number of\ndays in the company\u2019s working week, being five days for Mondelez. Whereas, the\nAMWU defined a day as an ordinary calendar day, being 24 hours. <\/p>\n\n\n\n

    The majority judgment did not accept\nthe AMWU\u2019s interpretation of a day meaning 24 hours per day of paid\npersonal\/carer\u2019s leave. Justices Bromberg and Rangiah stated that the better\ninterpretation of a day for paid personal\/carer\u2019s leave was a \u2018working day\u2019, being\nthe portion of the 24 hour period the employee was allocated to work on that day.\nIn forming their decision Justices Bromberg and Rangiah explained that\npersonal\/carer\u2019s leave was not an automatic entitlement for employees to take\nleave. An employee is only able to take personal\/carer\u2019s leave for a personal\nillness or injury, or the illness, injury or emergency of an immediate family\nmember, or member of the employee\u2019s household. Justices Bromberg and Rangiah\nnoted that not all employees would take their full or even part of their\npersonal\/carer\u2019s leave entitlement.<\/p>\n\n\n\n

    Justices Bromberg and Rangiah held\nthat under the Enterprise Agreement\u2019s entitlement to 96 hours paid\npersonal\/carer\u2019s leave, which calculated to be eight 12 hour shift days, was\nless beneficial than the NES entitlement for Mondelez\u2019s employees. They held\nthat under the NES, employees who worked 12 hour shifts would receive 10 days\u2019\nworth of 12 hour shifts in paid personal\/carer\u2019s leave.<\/p>\n\n\n\n

    In their judgment Justices Bromberg\nand Rangiah provided some conclusions about a \u2018working day\u2019 and\npersonal\/carer\u2019s leave. Paid personal\/carer\u2019s leave was an authorised absence from\nwork and a form of income protection for employees so that they are not\ndisadvantaged in the event of a personal illness or injury, or that of an\nimmediate family member or member of their household. It was not an entitlement\nto take leave except in those circumstances. \nA day for personal\/carer\u2019s leave was the portion of the normal 24 hour\nday that an employee was allocated to work. The entitlement to paid\npersonal\/carer\u2019s leave accrues over the year of service. When an employee takes\npaid personal\/carer\u2019s leave that day, or the part of the day that they were\nabsent, is taken from their accrued leave. The ability to take such paid leave\nis limited to how much the employee has accrued.<\/p>\n\n\n\n

    Take Home<\/strong><\/p>\n\n\n\n

    The message from this decision is that\nwhen an employer is accounting for paid personal\/carer\u2019s leave they are to do\nso in days or part days, not hours. An employee is entitled to 10 days absence\nfrom work due to their own illness or injury, or the illness, injury or an\nemergency for an immediate family member or member of the employee\u2019s household.\nDays being whatever portion of that day the employee was expected to work.<\/p>\n\n\n\n

    However, employers should hold off\nmaking any changes to their systems as the Morrison Government and Mondelez\nhave sought leave to appeal the decision in the High Court.<\/p>\n","protected":false},"excerpt":{"rendered":"

    The law is an occupation that deals primarily with language.  Words have both an ordinary meaning, and a legal meaning.  Lawyers and parties to litigation will often ask the courts to define the legal meaning of words, when the ordinary meaning is plainly obvious. While this may seem a waste of the court\u2019s time and […]<\/p>\n","protected":false},"author":21,"featured_media":1183,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[236],"tags":[39,170,169,35],"_links":{"self":[{"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/posts\/1181"}],"collection":[{"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/users\/21"}],"replies":[{"embeddable":true,"href":"https:\/\/workn.net.au\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1181"}],"version-history":[{"count":1,"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/posts\/1181\/revisions"}],"predecessor-version":[{"id":1182,"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/posts\/1181\/revisions\/1182"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/media\/1183"}],"wp:attachment":[{"href":"https:\/\/workn.net.au\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1181"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/workn.net.au\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1181"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/workn.net.au\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1181"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}