Mondelez has been ‘overturned’ – High Court confirms approach to calculating personal/carer's leave

In welcome news for employers, the High Court has today overturned the Full Federal Court’s decision in Mondelez. By majority, the High Court rejected the ‘working day’ construction adopted by the Full Court of the Federal Court of Australia.

The majority judgement of the High Court decision said that the “the expression '10 days' in s.96(1) of the Fair Work Act 2009 (Cth) means an amount of paid personal/carer's leave accruing for every year of service equivalent to an employee's ordinary hours of work in a week over a two-week (fortnightly) period, or 1/26 of the employee's ordinary hours of work in a year. A 'day' for the purposes of s.96(1) refers to a 'notional day', consisting of one-tenth of the equivalent of an employee's ordinary hours of work in a two-week (fortnightly) period.”

In short, the High Court has determined that a permanent employee’s entitlement to personal/carer’s leave under the NES is calculated on 1/26^th of the employee's ordinary hours of work in a year.   

As a result of this decision, a full-time employee who works 1,976 ordinary hours per year (being an average of 38 hours per week) accrues 76 hours of paid personal/carer's leave a year under the NES, regardless of the length of the shifts the employee is working or the employee’s roster pattern.

Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, Minister for Jobs and Industrial Relations v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29 (13 August 2020)

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Note – this article is for information purposes only and does not purport to be comprehensive or to render legal advice.