How long is a day?

The law is an occupation that deals primarily with language.  Words have both an ordinary meaning, and a legal meaning.  Lawyers and parties to litigation will often ask the courts to define the legal meaning of words, when the ordinary meaning is plainly obvious. While this may seem a waste of the court’s time and resources, this can sometimes be critical for the interpretation of legislation, as well as contractual arrangements.

In a blog a couple of years ago, my colleague Brian Powles looked at the legal meaning of the word ‘because’ in relation to Part 3-1 of the Fair Work Act 2009 (Cth).

The Federal Court of Australia was again recently asked to define another very ‘ordinary’ word.  What is a ‘day’, in relation to paid personal/carer’s leave under the National Employment Standards (the NES).

Section 96(1) of the Fair Work Act 2009 (Cth) (the FW Act) provides employees with a right to 10 days of paid personal/carer’s leave, with the result of how the court defines a day, affecting the total leave hours certain employees would be entitled to. An employee can take paid personal/carer’s leave if they are sick or injured, or if they need to provide care or support to an immediate family member, or a member of their household who is sick, injured, or has an emergency.

Case

The case was Mondelez v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union (AMWU) [2019] FCAFC 138. Mondelez’s employees work 36 hours per week. Some employees work their 36 hours over five days, working 7.2 hours a day. Other employees complete their 36 hours in three days, working 12 hours per day. Under the Mondelez Australia Pty Ltd, Claremont Operations (Confectioners & Stores) Enterprise Bargaining Agreement 2017 (the Enterprise Agreement) employees who worked 12 hour shifts were allowed 96 hours per year in paid personal carer’s leave. Employees who worked 7.2 hour days were allowed 80 hours per year. Mondelez sought two declarations from the Federal Court of Australia:

  1. When a 12 hour shift employee takes paid personal/carer’s leave they are to be deducted 12 hours from their accrued hours of paid personal/carer’s leave; and
  2. Mondelez employees’ entitlement to paid personal/carer’s leave was more beneficial under the Enterprise Agreement compared to the ‘10 days’ under the NES.

The majority judgment of Justices Bromberg and Rangiah held that the declarations sought by Mondelez could not be made.

Submissions were made by Mondelez and the Australian Manufacturing Workers Union (the AMWU) on the definition of a ‘day’ for paid personal/carer’s leave in the NES. Mondelez submitted that a ‘day’ was calculated by dividing an employee’s weekly hours by the number of days in the company’s working week, being five days for Mondelez. Whereas, the AMWU defined a day as an ordinary calendar day, being 24 hours.

The majority judgment did not accept the AMWU’s interpretation of a day meaning 24 hours per day of paid personal/carer’s leave. Justices Bromberg and Rangiah stated that the better interpretation of a day for paid personal/carer’s leave was a ‘working day’, being the portion of the 24 hour period the employee was allocated to work on that day. In forming their decision Justices Bromberg and Rangiah explained that personal/carer’s leave was not an automatic entitlement for employees to take leave. An employee is only able to take personal/carer’s leave for a personal illness or injury, or the illness, injury or emergency of an immediate family member, or member of the employee’s household. Justices Bromberg and Rangiah noted that not all employees would take their full or even part of their personal/carer’s leave entitlement.

Justices Bromberg and Rangiah held that under the Enterprise Agreement’s entitlement to 96 hours paid personal/carer’s leave, which calculated to be eight 12 hour shift days, was less beneficial than the NES entitlement for Mondelez’s employees. They held that under the NES, employees who worked 12 hour shifts would receive 10 days’ worth of 12 hour shifts in paid personal/carer’s leave.

In their judgment Justices Bromberg and Rangiah provided some conclusions about a ‘working day’ and personal/carer’s leave. Paid personal/carer’s leave was an authorised absence from work and a form of income protection for employees so that they are not disadvantaged in the event of a personal illness or injury, or that of an immediate family member or member of their household. It was not an entitlement to take leave except in those circumstances.  A day for personal/carer’s leave was the portion of the normal 24 hour day that an employee was allocated to work. The entitlement to paid personal/carer’s leave accrues over the year of service. When an employee takes paid personal/carer’s leave that day, or the part of the day that they were absent, is taken from their accrued leave. The ability to take such paid leave is limited to how much the employee has accrued.

Take Home

The message from this decision is that when an employer is accounting for paid personal/carer’s leave they are to do so in days or part days, not hours. An employee is entitled to 10 days absence from work due to their own illness or injury, or the illness, injury or an emergency for an immediate family member or member of the employee’s household. Days being whatever portion of that day the employee was expected to work.

However, employers should hold off making any changes to their systems as the Morrison Government and Mondelez have sought leave to appeal the decision in the High Court.

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