A recent landmark case from the High Court has answered the question: ‘What is a ‘day’ of personal leave in the Fair Work Act 2009?’ The Court determined that a day of personal leave is calculated as one 26th of an employee’s ordinary hours of work each year. The decision is most significant to part-time employees and shift-workers as it clarifies the meaning of ten days personal leave; overruling a prior decision that it was ten calendar days.

The Matter and it’s Meaning

The matter is succinctly known as ‘Mondelez’. The case concerned a company, Mondelez Australia Pty Ltd and its provision of a fixed amount of personal leave to its employees based on hours worked. The employees worked 36 ordinary hours per week over a four-week cycle with 12-hour shifts, for which they were credited with 96 hours of paid personal leave for each year of service. This meant, however, that employees exhausted their leave entitlements after an absence of eight shifts; not ten days. So the company sought to clarify what is a day for the purposes of personal leave? The High Court overruled a prior decision that it is a 24-hour period of absence or ‘calendar day’. It is instead, as opposed to a calendar day, a ‘notional day’. What this means is, a day for the purposes of the Fair Work Act and personal leave is one-tenth of the equivalent of an employee’s ordinary hours of work in a two-week (fortnightly) period, that is, one 26th of an employee’s ordinary hours of work each year.

The Decision’s Effect

The decision of the Court essentially affected a loss of leave to part-time and shift-working employees. These workers may exhaust their leave entitlements to ‘ten days’ of personal leave prior to actually taking ten calendar days.

The application and implication of the Mondelez matter is therefore far-reaching.

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