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30 June, 2019

Yesterday the High Court of Australia handed down its much-anticipated leave decision of Mondelez,1 overturning the earlier decision of the Full Court of the Federal Court. The majority held in favour of Mondelez and Federal IR Minister Christian Porter, declaring that “a ‘day’ for the purposes of s 96(1) [of the Fair Work Act] 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”. The judgement effectively confirms the position most employers were following prior to the full Federal Court decision last August.


Mondelez, a national systems employer, operates four food manufacturing plants in Australia. The Mondelez Australia Pty Ltd, Claremont Operations (Confectioners & Stores) Enterprise Agreement 2017 (Enterprise Agreement) came into effect in 2018, which covers employees working at a Cadbury confectionary plant in Tasmania.

Ms Triffitt and Mr McCormack (two employees of Mondelez) each worked 36 hours per week, averaged over a four week cycle, in 12-hour shifts.

When Ms Triffitt or Mr McCormack took paid personal/carer’s leave for a single 12-hour shift, Mondelez deducted 12 hours from their accrued paid personal/carer’s leave balance. Using this method of calculation, over the course of a year, Ms Triffitt or Mr McCormack each accrued an amount of personal/carer’s leave that is sufficient to cover only eight 12-hour shifts.

A dispute arose between the employees and Mondelez as to how the entitlement to paid personal/carer’s leave is quantified under s 96(1) of the Fair Work Act 2009 (Cth) (FW Act). Section 96(1) of the FW Act provides:

“For each year of service with his or her employer, an employee is entitled to 10 days of paid personal/carer’s leave”

Mondelez submitted that “day” in s 96(1) of the FW Act is a “notional day”, which consists of an employee’s average daily ordinary hours based on an assumed five-day working week. This interpretation means that if an employee works 36 ordinary hours a week, irrespective of whether the employee works three 12-hour shifts that week, the average ordinary hours per day is 7.6. Therefore, as ‘day’ equates to 7.6 hours, employees are entitled to receive 76 hours of personal/carer’s leave per year.

The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU), on behalf of the employees, submitted that a ‘day’ in s 96(1) of the FW Act has its ordinary meaning of a “calendar day”, which is “a 24 hour period”. On this basis, Ms Triffitt or Mr McCormack should still be entitled to be absent from work without loss of pay on 10 calendar days per year, even if rostered to work 12-hour shifts.

The Minister for Small and Family Business, the Workplace and Deregulation (Minister) was granted leave to intervene in the proceeding and did so in support of Mondelez’ construction of s 96(1) of the Act.

Decision of Full Federal Court

On 21 August 2019, the Full Federal Court of Australia handed down its decision.2

The majority rejected Mondelez’ construction of “day” in s 96(1) of the FW Act as being a “notional day” and instead held that “day” refers to “the portion of a 24 hour period that would otherwise be allotted to working”. Their Honours Bromberg and Rangiah JJ described this to be a “working day”, meaning that section 96(1) of the FW Act authorises employees to be absent from work for 10 such “working days” per year.

The Federal Court held that employees working 12-hour shifts would therefore be entitled to ten 12-hour days of personal/carer’s leave per year (equating to 120 hours), as opposed to ten shifts of 7.6 hours per year (equating to 76 hours).

Appeal to the High Court

In December 2019 the High Court granted special leave to Mondelez and the Minister to appeal the decision of the Full Federal Court.

The grounds of appeal were that:

  1. The Full Federal Court erred in its conclusion that a “day” in s 96(1) of the FW Act means “the portion of a 24 hour period that would otherwise be allotted to work”. “Day” should instead be considered an “average working day”, that is, the employee’s average daily ordinary hours of work based on a standard five-day working week.
  2. The Full Federal Court erred in construing s 96(1) of the FW Act as entitling national system employees (other than casuals) to paid personal/carer’s leave equivalent to 10 “working days” (of the duration the employee would have worked on a particular day in question) per year.

Decision of the High Court

On 13 August 2020, the High Court set aside the decision of the Full Court of the Federal Court and in its place declared 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.”

In making this declaration, the majority of the High Court rejected the “working day” construction adopted by the Federal Court on the basis that:

(a)   It would be unfair as it would lead to inequalities between employees with different work patterns. An employee whose hours are spread over fewer days with longer shifts would be entitled to more paid personal/carer’s leave than an employee who was working the same number of hours per week but spread over more days.

(b)   It would result in part-time employees being entitled to the same amount of leave as, or more leave than, full time employees. For example, an employee who only works one day per week for 7.6 hours would accrue the same amount of personal/carer’s leave per year (i.e. ten days per year) as an employee who works five days per week for 7.6 hours.

(c)    It would create uncertainty if employees take only part of their shift as personal/carer’s leave.


Thankfully, the decision means that most employers will not need to change the way that they accrue and pay employees for their paid personal/carer’s leave. Effectively the status quo (pre the Full Federal Court decision) continues.

The High Court’s decision provides clarity on how the entitlement to paid personal/carer’s leave under s 96(1) of the FW Act should be interpreted, which is, in effect, an entitlement to 76 hours per year for an employee working a usually 38 hour week.

While most employees will not be affected by the decision, those who are engaged to work shifts of longer than 7.6 hours (i.e. 12-hour shifts) will not receive enough hours of paid personal/carer’s leave per year to cover all ten occasions they are absent from work for the duration of their shift due to illness or injury.

ACTU secretary Sally McManus has called for legislative changes claiming the decision blows a “massive” hole in the nation’s defences against COVID-19. McManus said:

“Now, the Federal Government is allowing even more gaps to open up by not stepping in to protect workers’ sick leave entitlements…The Federal Government must 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, and must also legislate paid pandemic leave for all workers.”

Acting IR Minister Mathias Cormann said the High Court’s ruling “restores clarity and certainty in relation to how paid personal/carer’s leave entitlements are calculated”.

Please note this information is a guide only and does not constitute legal advice. If you have any questions regarding employee entitlements to personal/carer’s leave, please get in touch with McCabes Employment group.

1 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 [2020] HCA 29 (13 August 2020).
2 Mondelez Australia Pty Ltd v AMWU [2019] FCAFC 138.

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Canadian Court elevates thumbs-up emoji to signature status

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After the phone call, Mr Mickleborough applied his ink signature to the contract, took a photo of it on his mobile phone and texted it to Mr Archter with the text message, "please confirm flax contract". Mr Archter responded by texting back a "thumbs-up" emoji, but ultimately did not deliver the 87 metric tonnes of flax as agreed.   Issues The parties did not dispute the facts, but rather, "disagreed as to whether there was a formal meeting of the minds" and intention to enter into a legally binding agreement. The primary issue that the Court was tasked with deciding was whether Mr Achter's use of the thumbs-up emoji carried the same weight as a signature to signify acceptance of the terms of the alleged contract. Mr Mickleborough put forward the argument that the emoji sent by Mr Achter conveyed acceptance of the terms of the agreement, however Mr Achter disagreed arguing that his use of the emoji was his way of confirming receipt of the text message. By way of affidavit, Mr Achter stated "I deny that he accepted the thumbs-up emoji as a digital signature of the incomplete contract"; and "I did not have time to review the Flax agreement and merely wanted to indicate that I did receive his text message." Consensus Ad Idem In deciding this issue, the Court needed to determine whether there had been a "formal meeting of the minds". At paragraph [18], Justice Keene considered the reasonable bystander test: " The court is to look at “how each party’s conduct would appear to a reasonable person in the position of the other party” (Aga at para 35). The test for agreement to a contract for legal purposes is whether the parties have indicated to the outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract (Aga at para 36). The question is not what the parties subjectively had in mind, but rather whether their conduct was such that a reasonable person would conclude that they had intended to be bound (Aga at para 37)."   Justice Keene considered several factors including: The nature of the business relationship, notably that Mr Achter had a long-standing business relationship with SWT going back to at least 2015 when Mr Mickleborough started with SWT; and   The consistency in the manner by which the parties conducted their business by way of verbal conversation either in person or over the phone to come to an agreement on price and volume of grain, which would be followed by Mr Mickleborough drafting a contract and sending it to Mr Achter. Mr Mickleborough stated, "I have done approximately fifteen to twenty contracts with Achter"; and   The fact that the parties had both clearly understood responses by Mr Achter such as "looks good", "ok" or "yup" to mean confirmation of the contract and "not a mere acknowledgment of the receipt of the contract" by Mr Achter.   Judgment At paragraph [36], Keene J said: "I am satisfied on the balance of probabilities that Chris okayed or approved the contract just like he had done before except this time he used a thumbs-up emoji. In my opinion, when considering all of the circumstances that meant approval of the flax contract and not simply that he had received the contract and was going to think about it. In my view a reasonable bystander knowing all of the background would come to the objective understanding that the parties had reached consensus ad item – a meeting of the minds – just like they had done on numerous other occasions." The court satisfied that the use of the thumbs-up emoji paralleled the prior abbreviated texts that the parties had used to confirm agreement ("looks good", "yup" and "ok"). This approach had become the established way the parties conducted their business relationship.   Significance of the Thumbs-Up Emoji Justice Keene acknowledged the significance of a thumbs-up emoji as something analogous to a signature at paragraph [63]: "This court readily acknowledges that a thumbs-up emoji is a non-traditional means to "sign" a document but nevertheless under these circumstances this was a valid way to convey the two purposes of a "signature" – to identify the signator… and… to convey Achter's acceptance of the flax contract." In support of this, Justice Keene cited the dictionary.com definition of the thumbs-up emoji: "used to express assent, approval or encouragement in digital communications, especially in western cultures", confirming that the thumbs-up emoji is an "action in an electronic form" that can be used to allow express acceptance as contemplated under the Canadian Electronic Information and Documents Act 2000. Justice Keene dismissed the concerns raised by the defence that accepting the thumbs up emoji as a sign of agreement would "open the flood gates" to new interpretations of other emojis, such as the 'fist bump' and 'handshake'. Significantly, the Court held, "I agree this case is novel (at least in Skatchewan), but nevertheless this Court cannot (nor should it) attempt to stem the tide of technology and common usage." Ultimately the Court found in favour of SWT, holding that there was a valid contract between the parties and that the defendant breached by failing to deliver the flax. 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Venues NSW ats Kerri Kane: Venues NSW successful in overturning a District Court decision

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The plaintiff attended the Stadium with her husband and friend to watch an NRL rugby league match. It was raining heavily on the day. The plaintiff alleged she slipped and fell while descending a stepped aisle which comprised of concrete steps between rows of seating. The plaintiff sued VNSW in negligence alleging the stepped aisle constituted a "stairwell" under the BCA and therefore ought to have had a handrail. The plaintiff also alleged that the chamfered edge of the steps exceeded the allowed tolerance of 5mm. 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