{"id":1268,"date":"2020-08-26T14:12:39","date_gmt":"2020-08-26T04:12:39","guid":{"rendered":"http:\/\/workplaceculturematters.com.au\/?p=1268"},"modified":"2025-07-05T13:37:33","modified_gmt":"2025-07-05T03:37:33","slug":"mondelez-update","status":"publish","type":"post","link":"https:\/\/workn.net.au\/?p=1268","title":{"rendered":"Mondelez Update"},"content":{"rendered":"\n

In our November 2019 blog<\/a>, we outlined the Full Court of the Federal Court of Australia\u2019s decision on what amounted to a \u2018day<\/em>\u2019 for paid personal\/carer\u2019s leave under section 96(1) of the Fair Work Act 2009<\/em> (Cth) (the FW Act<\/em><\/strong>). <\/p>\n\n\n\n

The Federal Court of Australia\nDecision<\/strong><\/p>\n\n\n\n

The case concerned two employees who\nworked their contracted 36 hours per week over three 12-hour days. Other\nemployees worked their 36 hours over five days, working 7.2 hours per day.\nUnder the Mondelez Australia Pty Ltd, Claremont Operations (Confectioners\n& Stores) Enterprise Bargaining Agreement 2017<\/em> (the Enterprise\nAgreement<\/strong>), employees who worked 12-hour shifts were allowed 96 hours per\nyear of paid personal\/carer\u2019s leave. This was compared to employees who worked 7.2-hour\ndays and were allowed 80 hours per year of paid personal\/carer\u2019s leave.<\/p>\n\n\n\n\n\n\n\n

One of the declarations sought by Mondelez\nwas that the Mondelez\u2019s employees\u2019 entitlement to paid personal\/carer\u2019s leave\nwas more beneficial under the Enterprise Agreement compared to the 10 days\nprovided by the FW Act<\/em>. Both Mondelez and the Australian Manufacturing\nWorkers Union made submissions on what amounted to a \u2018day\u2019 <\/em>for paid\npersonal\/carer\u2019s leave under the FW Act<\/em>. <\/p>\n\n\n\n

The majority judgment of the Federal\nCourt of Australia held that the definition of \u2018day\u2019<\/em> should be the \u2018working\nday<\/em>\u2019, the portion of the 24-hour period that an employee was allocated to\nwork. Many employers that had accrued personal leave for their employees on the\nbasis of 76 hours per year, may have fallen into error in respect of providing\nthis to part time employees on a pro rata basis.  In our blog, we advised that employers should\nhold off making any changes to their systems as leave to appeal to the High\nCourt was being sought.<\/p>\n\n\n\n

The High Court Decision<\/strong><\/p>\n\n\n\n

On 13 August 2020, the High Court\nhanded down their decision on the appeal. The majority judgment of Kiefel CJ,\nNettle and Gordon JJ overruled the decision of the Full Court of the Federal Court\nof Australia.<\/p>\n\n\n\n

The majority judgment of the High\nCourt held that a \u2018day\u2019<\/em> for paid personal\/carer\u2019s leave was to be\ndetermined by the \u2018notional<\/em> day\u2019<\/em>, being one tenth of the\nemployee\u2019s ordinary hours of work in a two-week period. For those employees who\ndo not have standard ordinary hours over a two-week period, the 10 days can be\ncalculated as one-twenty-sixth of the employee\u2019s ordinary hours in a year.<\/p>\n\n\n\n

The majority judgment came to this\ndecision based on the following considerations:<\/p>\n\n\n\n