Mondelez v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union (AMWU) [2019] FCAFC 138

Mondelez v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union (AMWU) [2019] FCAFC 138

The expression '10 days' in s 96(1) of the Fair Work Act 2009 (Cth) refers to 10 'working days', being the portion of a 24-hour period allotted to work, for which an employee is entitled to paid personal/carer's leave each year. This entitles employees, including those working 12-hour shifts, to be absent with pay for 10 such days per year. The 'notional day' or hours-based construction advocated by Mondelez does not conform with the text, context, statutory purpose, or income protection objective of the leave; the accrual and deduction of leave must correspond to actual working days missed rather than averaged notional hours.

Parties
Applicant: Mondelez Australia Pty Ltd; First Respondent: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU); Second Respondent: Natasha Triffitt; Third Respondent: Brendon McCormack; Intervener: Minister for Small and Family Business, the Workplace and Deregulation (Intervener)
Jurisdiction
Australia
Judgment Date
21 August 2019
Procedural Posture
Originating Application (declaratory Relief) / Full Court of the Federal Court of Australia – Judgment
Outcome
Application dismissed by majority (Bromberg and Rangiah JJ); O'Callaghan J dissenting.
Legal Topics
Personal/carer's Leave, Interpretation of Fair Work Act 2009 (cth) S 96(1), Enterprise Agreement Compliance With National Employment Standards, Calculation of Leave Entitlements, Statutory Construction
Industrial Law Employment Law Personal/carer's Leave Interpretation of Fair Work Act 2009 (cth) S 96(1) Enterprise Agreement Compliance With National Employment Standards Calculation of Leave Entitlements Statutory Construction

Case Brief

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Parties

Mondelez Australia Pty Ltd

Applicant

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU)

First Respondent

Natasha Triffitt

Second Respondent

Brendon McCormack

Third Respondent

Minister for Small and Family Business, the Workplace and Deregulation (Intervener)

Intervener

Procedural Posture

Originating Application (declaratory Relief) / Full Court of the Federal Court of Australia – Judgment

Legal Issues

  1. 1 Proper construction of '10 days' paid personal/carer's leave in s 96(1) of the Fair Work Act 2009 (Cth)
  2. 2 Whether paid personal/carer’s leave should be measured in 'working days' or 'notional days' of average hours
  3. 3 Whether the leave entitlement under enterprise agreements for 12-hour shift workers is consistent with the National Employment Standards

Ratio Decidendi

The expression '10 days' in s 96(1) of the Fair Work Act 2009 (Cth) refers to 10 'working days', being the portion of a 24-hour period allotted to work, for which an employee is entitled to paid personal/carer's leave each year. This entitles employees, including those working 12-hour shifts, to be absent with pay for 10 such days per year. The 'notional day' or hours-based construction advocated by Mondelez does not conform with the text, context, statutory purpose, or income protection objective of the leave; the accrual and deduction of leave must correspond to actual working days missed rather than averaged notional hours.

Court Disposition

Application dismissed by majority (Bromberg and Rangiah JJ); O'Callaghan J dissenting.

Orders

  • The applicant's originating application be dismissed.