August 2019 Memo

01 Aug 2019

What is a Working Week for the purpose of Personal/Carer Leave?

In a recent matter before the full Federal Court the Justices accepted the interpretation that the National Employment Standards (s96 (1) provides 10 days of personal /carer leave.

Mondelez’s determined personal/carer’s leave under s 96(1) of the FW Act as a ‘notional’ day which averages ordinary hours based on an assumed 5 day working week. This is a common industry practice and the Full Courts decision could impact on employers, particularly when dealing with shift-workers. There is no information on whether Mondelez will appeal the decision, however employers now need to ensure that they calculate leave under s 96(1) for each employee based on the employee’s particular “working day”, that is the “portion of a 24 hour period that would otherwise be allotted to work”.

Employers should review their payroll systems to ensure that they are calculating leave in the correct way.

Mondelez v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union Known as the Australian Manufacturing Workers Union (AMWU) [2019] FCAFC 138 (21 August 2019)