Challenge to court ruling giving some workers more sick leave than others

The High Court has agreed to hear an appeal against a landmark full Federal Court decision that granted more than the standard hours of sick leave to shift workers.

The Federal Court decision found that workers rostered on for three 12-hour shifts a week were entitled to 10 days of sick leave paid at the same rate as a normal work day. The means they would accrue 120 hours of sick leave each year, calculated as 10 days multiplied by 12 hours.

Sick leave entitlements for workers at a Cadbury factory have sparked a High Court appeal.
Sick leave entitlements for workers at a Cadbury factory have sparked a High Court appeal.Credit:Paul Jeffers

This was the case despite the court finding that a worker who put in the same 36 hours across five shifts would accrue only 72 hours of sick leave a year, 48 hours less.

Business groups and the federal government have welcomed the appeal against the Federal Court decision.


Australian Industry Group chief executive Innes Willox said that, if allowed to stand, the Federal Court decision would impose more than $2 billion a year of additional costs on employers.

“The Federal Court’s decision is inconsistent with the widespread industry practice and will have substantial cost implications for a large number of employers, if the decision stands,” Mr Willox said.

Innes Willox, chief executive of the Australian Industry Group.
Innes Willox, chief executive of the Australian Industry Group.

“In addition to the cost impacts, the decision would impose a major barrier to employers agreeing to part-time employment arrangements, including for employees returning from parental leave.”

The appeal will challenge the Federal Court’s interpretation of the employee entitlement to 10 days of sick leave under the Fair Work Act.

Cadbury parent company Mondelez International’s said it was appealing against the decision, with the support of the federal government, based on a concern that it had redefined the calculation of personal leave for non-standard shift workers in a way that “created inequality between employees in the same workplace” who completed the same work on different rosters. It said this had created uncertainty about long-standing industry practice.

“The application in the High Court is important not only for Mondelez International but for all
Australian employers with non-standard shift arrangements including, for example, the nursing,
mining, building and construction and transport and distribution industries, who would also be
impacted by the original Federal Court decision,” Mondelez Australia spokeswoman Alex Blair said.

A spokesman for acting Attorney-General Mathias Cormann said the government welcomed the High Court’s decision to hear the appeal.

“The government supports a fair and balanced industrial relations system for both employees and employers, with clearly defined entitlements,” Senator Cormann said.

Paul Bastian, national secretary of the Australian Manufacturing Workers Union (AMWU), which won the Federal Court case on behalf of Cadbury workers said it would continue to fight to defend the Federal Court decision, which affected shift workers around the country.

“This is an issue of fairness for workers’ rights across Australia, not just the Cadbury workers at the centre of this case,” he said.

“If you’re working 12-hour shifts and need to take a sick day, then you should be paid for your normal hours of work. It’s as simple as that.

“It’s appalling to once again see the Morrison government take the side of a profitable multinational company over some of the hardest working, lowest paid employees in this country.”

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