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Federal Court rules on shift worker leave

A significant decision by the Federal Court has granted extra sick leave to employees on 12-hour shifts.

In a ruling that highlights ongoing issues with the National Employment Standards (NES), the Federal Court granted Cadbury employees who work 12-hour shifts, 120 hours of personal/carers leave despite only working a 36-hour week.

Under the NES employees are entitled to 10 days personal/carer’s leave which accrues progressively based on their ordinary hours of work.

The NES does not define what a day is, however, the relevant explanatory material which formed part of the Fair Work Bill, identified that the entitlement would be based on 76 hours of leave for full time employees irrespective of how the employee’s hours are structured.

Where non-standard work arrangements are performed, most employers relied on this material in calculating leave entitlements. This generally occurred by providing the employee with 76 hours personal/carer’s leave per year and paying them for the ordinary hours worked on that day. 

In the case of employees working 12-hour shifts, the employer would have provided them with 6.3 days of personal/carer’s leave on full pay.

However, in the Cadbury case the relevant union challenged that approach, arguing that the employees who worked a 36-hour week made up of three 12 hour shifts should be entitled to 10 days personal/carer’s leave calculated at the 12 hours, resulting in a total entitlement of 120 hours per year.

In a split decision, two of the judges accepted the union’s argument identifying that the entitlement to personal/carer’s leave is 10 days without loss of pay, irrespective of the number of ordinary hours worked on that day. 

Their reasoning also identifies that this approach should apply to part time employees who work differing number of hours each day.

However, this controversial decision is unlikely to be the last word on the matter.

In a dissenting judgement the third judge accepted the argument of the employer which may give grounds for a further appeal. 

CCIWA has also previously raised this issue with the Federal Government which intervened in the case in support of the employer. 

We will therefore be using this decision to reinforce the need future changes to the NES.

►The potential impact of this decision is dependent on a range of factors. CCIWA Members can call the Employee Relations Advice Centre on (08) 9365 7660 or find out more about the advantages of membership here

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