The Mondelez Decision of the High Court

On 13 August 2020, the High Court of Australia handed down a decision Mondelez Australia Pty Ltd v AMWU & Ors [2020] FCA 29 regarding accrual of paid personal or carer’s leave under the National Employment Standards.

The High Court considered the expression ’10 days of paid personal/carer’s leave’ under section 96(1) of the Fair Work Act 2009, and whether a day under the section was a ‘notional day’ or a ‘working day’ in construing an employee’s right to take personal or carer’s leave.

The High Court rejected the ‘working day’ construction as adopted by the Full Federal Court of Australia at first instance on the basis that such interpretation was not consistent with the purposes of section 96(1) nor the stated objectives of fairness, flexibility, certainty or stability under the Fair Work Act 2009. The Court held that such a construction would lead to inequality between employees, as it was not responsive to different working patterns.

The High Court held that the purpose of section 96(1) is to protect employees against loss of earnings by reference to their ordinary hours of work. The ‘notional day’ construction entitles employees to personal or carer’s leave calculated as one twenty-sixth of an employee’s ordinary hours of work in a year.

Adero Law welcomes this decision as authority for all employees, whether permanent full-time or part-time, to personal or carer’s leave and will adopt the High Court’s authority in determining the entitlement of its group members in Rossato-like permanent employment relationships to such leave.

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