High Court overturns Mondelez ‘sick leave’ decision

A High Court majority has overturned the Full Federal Court’s finding in Mondelez v AMWU that the 10 days of personal/carer’s leave (‘sick leave’) per year in the National Employment Standards (NES) must reflect an employee’s ordinary hours of work.

The High Court rejected the Union’s argument that 12 hour shiftworkers should be entitled to 120 hours of paid personal/carer’s leave per year, instead of 10 shifts of 7.6 hours by finding:

“The expression ’10 days’ in section 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.”

The High Court’s decision is available here: http://eresources.hcourt.gov.au/downloadPdf/2020/HCA/29

Employers should review any arrangements put in place to reflect the Full Federal Court’s overturned decision.