You can have your chocolate and your personal leave too!

Key Points
  • Last week the Full Federal Court of Australia handed down a decision to two Cadbury chocolate workers that full-time and part-time employees are entitled to 10 working days of paid personal/carer’s leave for each year of employment
  • A working day is the portion of a 24 hour period that an employee would otherwise be working ie if normally a shiftworker working a standard 12 hour day, the shiftworker will be entitled to 10 (12 hour) working days of personal leave
  • The Fair Work Ombudsman is currently reviewing and updating its advice in light of this decision

Pursuant to section 96(1) of the Fair Work Act 2009 (Cth) (the Act), permanent employees are entitled to 10 days paid personal/carer’s leave each year. For a standard 38 hour working week, this equates to 10 days of personal/carer’s leave at 7.6 hours per day.  
The Case
The case of Mondelez Australia Pty Ltd v AMWU [2019] FCAFC 138, was an argument between the Australian Manufacturing Workers Union (AMWU), on behalf of the two Cadbury workers, and the food manufacturing employer, Mondelez Australia Pty Ltd (Cadbury). The AMWU argued that as the two employees ordinarily worked 12-hour shifts, they were entitled to 10 days of personal/carer’s leave at 12 hours per day. Conversely, Cadbury’s argued that like other employees who worked 36 hours per week, they were only entitled to 10 days of personal/carer’s leave at 7.2 hours per day.
The Federal Court ruled in favour of the AMWU, ruling that the meaning of the word “day” for the purposes of section 96(1) of the Act is “the portion of a 24 hour period that would otherwise be allotted to working”1. Accordingly, the 10 “days” personal/carer’s leave entitlement is based upon the ordinary hours an employee would have worked, if not for being absent for the illness or injury2.
The Effects
What might be a heralded decision by the two Cadbury chocolate workers, the Australian Manufacturing Workers Union, and the rest of the Cadbury workers, the decision could have significant cost implications for a large number of Australian employers, particularly those who conduct shiftwork. Given the manufacturing industry is already being forced to innovate and adopt significant changes or risk perishing, this decision may add to the falling number of manufacturers in Australia.
If a part time employee normally works 22.8 hours per week, worked as:
  • 8 hours on Mondays;
  • 6.8 hours on Tuesdays; and
  • 8 hours on Wednesdays;
and the employee takes personal leave on a Monday they are entitled to the entire “day” of Monday’s ordinary eight hours as personal leave, not just the pro rata amount of 7.6 hours based on working three “days” ie 7.6 hours, per week.
It is too soon to know if Cadbury’s will appeal the decision to the High Court of Australia, however, the Fair Work Ombudsman is reviewing and updating its advice following this ruling, and has declared that the Full Federal Court’s decision reflects the current state of the law.
In light of the decision, employers should review their own payroll systems to ensure they are calculating leave in accordance with the decision. If employers are not sure how personal/carer’s leave entitlement is being calculated, you can speak to one of our Workplace Relations team members today, who are specialists in interpreting and applying employment case law and legislation!

1 Mondelez Australia Pty Ltd v AMWU [2019] FCAFC 138 [93] (Bromberg and Rangiah JJ).
2 Ibid [203].

Post by Warwick Ryan and Saasha Greeney

Most Popular Articles


When can the unqualified be qualified? Non-lawyers engaging in legal practice - when is it OK and when is the law broken

Only lawyers can provide legal advice, but anyone can provide legal information. When thinking of the difference, you might ask your friend or colleague to provide information about a serious illness; however you would seek out a qualified medical professional in relation to its treatment.

Service of Notices by Registered Post

Where service of a notice is authorised or required by post, unless the contrary intention appears, service will be deemed to be effected at the time when the notice would be delivered in the ordinary course of post: see the various Acts Interpretation acts of the States and Commonwealth.

Thanks, but no thanks – I don’t want to inherit

It seems odd that anybody would reject an inheritance, but for some beneficiaries, there are valid reasons they do not wish to receive their inheritance.

Subscribe to Our Blog

Keeping you connected, Hicksons regularly publishes articles to keep you up to date on the latest developments. To receive these updates via email, please subscribe below and indicate which areas of law you would like to receive information on.