What is the correct interpretation of a ‘day’ when calculating paid personal/carer’s leave?

The High Court has granted special leave to appeal one of last year’s most controversial decisions. The Full Federal Court in Mondelez v AMWU [2019] FCAFC 138, determined the meaning of a ‘day’ for the purposes of paid personal/carer’s leave entitlements under section 96 of the Fair Work Act 2009 (Cth) (FWA).

In a 2:1 majority, Justices Bromberg and Rangiah held that a ‘day’ is the ‘portion of a 24 hour period that would otherwise be allotted to working’. The major implications of this decision are twofold:

1. Employees who are regularly rostered to work more than 7.6 ordinary hours per day are entitled to more paid personal/carer’s leave per year despite the widespread practice that full time employees receive 76 hours of paid personal/carer’s leave per year irrespective of rostered hours or shift patterns.
2. Part time employees are also entitled to 10 days personal/carers leave per year.

Understandably, this decision has significant implications from a cost and payroll perspective and has left employers with non-standard shift arrangements scratching their heads about how to calculate leave entitlements under the FWA.

The High Court is expected to hear the appeal of this decision in the first half of this year. We will keep you updated with the latest on the High Court’s decision.