I suspect there will be a collective sigh of relief from the business community.
The High Court today delivered its much anticipated judgement in the Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union; Minister for Jobs and Industrial Relations v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union appeal.
It held that:
The expression ’10 days’ in s 96(1) of the Fair Work Act 2009 (Cth) means an amount of paid personal/carer’s leave accruing for every year of service equivalent to an employee’s ordinary hours of work in a week over a two-week (fortnightly) period, or 1/26 of the employee’s ordinary hours of work in a year. A ‘day’ for the purposes of s 96(1) refers to a ‘notional day’, consisting of one‑tenth of the equivalent of an employee’s ordinary hours of work in a two-week (fortnightly) period.
KIEFEL CJ, NETTLE AND GORDON JJ, stated, amongst other things, that:
The alternative construction is that the reference to “10 days” entitles every employee, regardless of their pattern of work or distribution of hours, to be absent without loss of pay on ten working days per year (“the ‘working day’ construction”). That construction is rejected. It would give rise to absurd results and inequitable outcomes, and would be contrary to the legislative purposes of fairness and flexibility in the Fair Work Act, the extrinsic materials and the legislative history. The appeals should be allowed.
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