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High Court rules against leave for shift workers

  • August 14 2020
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High Court rules against leave for shift workers

By Cameron Micallef
August 14 2020

The High Court has ruled that shift workers are not entitled to 10 days leave, following a decision being handed down in the matter of the Australian Manufacturing Workers’ Union (AMWU) v Cadbury-Mondelez.

High Court rules against leave for shift workers

High Court rules against leave for shift workers

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  • August 14 2020
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The High Court has ruled that shift workers are not entitled to 10 days leave, following a decision being handed down in the matter of the Australian Manufacturing Workers’ Union (AMWU) v Cadbury-Mondelez.

High Court rules against leave for shift workers

The decision has resulted in the High Court ruling that for the purposes of calculating personal leave entitlements, a day was “the period of time in a 24-hour period that would otherwise be allocated to work”.

The decision has implications for workers working ordinary days of more than the standard 7.6 hours.

“Cadbury workers do 12-hour days making the chocolate that we know and love. This decision means that they will get fewer days of personal leave per year than someone doing an office job working 9 to 5,” AMWU Tasmania state secretary John Short explained.

However, Kingston Reid’s partner, Dominic Fleeton, believes the decision creates a fairer playing field for all types of workers.

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“The decision does not punish anyone. Quite the opposite. If the Federal Court decision had been allowed to stand, it would have led to inequality between employees simply because they had different work patterns,” Mr Fleeton noted.

Using the example of an employee who works three 12-hour shifts, Mr Fleeton explained how it is a fairer system for all.

“Under the Federal Court’s interpretation, that employee would get 120 hours of paid personal leave per year, whereas another employee working for the same employer who worked their 36 ordinary hours over five days (i.e. five days at 7.2 hours per day) would only be entitled to 72 hours of paid personal leave per year. Today’s decision means that both employees receive 72 hours of paid personal leave per year,” Mr Fleeton said.

Marque Lawyers Wesley Rogers agrees agrees with Mr Fleteton stating that the the now overturned Full Federal Court interpretation of “day” had inconsistent and unfair consequences. 

“For example, for employees who worked inconsistent hours, such as 2 hours one day and 8 hours another, under the Full Federal Court interpretation, if the employee took leave on the day he/she worked 2 hours, it would be treated the same as the employee taking leave on an 8 hour work day.  The employee would still use a full “day” from their personal leave accrual. “  

The Union State Secretary praised the work of his members standing up for themselves against a much larger corporation.

“While we are very disappointed in the outcome, we are very proud of our members and delegates who have taken up the fight at every stage. It’s not easy for a food worker to stand up in court against a big company like Cadbury-Mondelez.

The union also explained that it is disappointed in the Federal Government, who intervened at an entry level to support Cadbury-Mondelez at the Fair Work Commission, the Federal Court and the High Court.

“We are now calling for the federal government to amend the Fair Work Act so that every worker has access to 10 days of paid personal leave every year, no matter what hours they work,” Mr Short said.

“COVID-19 has shown the importance of personal leave. The government must change the law immediately to ensure that no matter whether you work 7.6 hours a day or 12 hours a day, you’ve got access to 10 days of personal leave per year,” Mr Short said.

High Court rules against leave for shift workers
High Court rules against leave for shift workers
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About the author

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Cameron is a journalist for Momentum Media's nestegg and Smart Property Investment. He enjoys giving Aussies practical financial tips and tricks to help grow their wealth and achieve financial independence. As a self-confessed finance nerd, Cameron enjoys chatting with industry experts and commentators to leverage their insights to grow your portfolio.

About the author

Cameron is a journalist for Momentum Media's nestegg and Smart Property Investment. He enjoys giving Aussies practical financial tips and tricks to help grow their wealth and achieve financial independence. As a self-confessed finance nerd, Cameron enjoys chatting with industry experts and commentators to leverage their insights to grow your portfolio.

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