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High Court begins hearing Personal/Carer's leave case

"Today and tomorrow the High Court of Australia will hear the appeal by Mondelēz International and the Minister for Industrial Relations against the split decision of the Full Federal Court in the Mondelez v AMWU case. The case relates to the meaning of the expression '10 days of paid personal/carer's leave' in section 96 of the Fair Work Act and has major implications for businesses that have employees who work more than 7.6 ordinary hours per day or on a part-time basis," Innes Willox, Chief Executive of the national employer association Ai Group, said today.

"Ai Group estimates that the Federal Court's decision, if it stands, would impose more than $2 billion a year of additional costs on employers. The decision is inconsistent with widespread industry practice.

"In addition to the cost impacts, the decision would impose a major barrier to employers agreeing to part-time employment arrangements, including for employees returning from parental leave. On the Federal Court's interpretation, a part-time employee who works one day a week would be entitled to the equivalent of 10 weeks of personal/carer's leave a year.

"In its decision, the Federal Court Majority (Bromberg and Rangiah JJ) decided that a 'day' in section 96 means 'the portion of a 24 hour period that would otherwise be allotted to work' and that 'an employee accrues an entitlement to be absent from work … for ten such working days for each year of service'.

"In his dissenting judgment, O'Callaghan J stated that 'I am unable, with respect, to agree with their Honours' conclusions'. Justice O'Callaghan highlighted the examples in the Explanatory Memorandum for the Fair Work Bill and stated:

"Those examples, in my respectful view, reinforce the expression of the determination of Parliament that the amount of personal/carer’s leave to be accrued is not to be affected by any different spread of an employee’s ordinary hours of work in a week, and is designed to achieve what senior counsel for the applicant, correctly in my view, described as 'equity as between different classes of employees'. In my view, the position advanced by the respondents produces an outcome that creates inequities between different classes of employees that Parliament did not intend."

"The case relates to 12-hour shift workers at the Mondelēz International plant in Claremont, Tasmania where Cadbury chocolate is manufactured.

"The current enterprise agreement agreed to by Mondelēz International states that the 12-hour shift workers at the Claremont Plant are entitled to 96 hours of personal/carer's leave per year. This is a lot more generous than the 76 hours that full-time employees would generally be entitled to under the Fair Work Act, if the Act is interpreted in the manner that aligns with the widespread industry practice.

"Mondelēz is being represented in the High Court proceedings by Ai Group Workplace Lawyers, Stuart Wood QC and Dimitri Ternovski of Counsel," Mr Willox said.

Media enquiries: Tony Melville – 0419 190 347