High Court ruling against Cadbury shift worker sick leave a ‘huge blow’

The operators of Tasmania’s Cadbury factory have won their bid to cut personal leave for shift workers, in a ruling which could have implications for other Australian workers.

The workers who took their claim for paid personal and carer’s leave entitlements to the High Court work three 12-hour shifts a week.

A year ago, two Cadbury workers won a Federal Court case arguing that because they worked 12-hour shifts, their 10 days of personal leave should be paid at 12 hours a day.

The company had argued it was entitled to pay the rate at only 7.6 hours.

Cadbury owners Mondelez International took the case to the High Court.

It has ruled the entitlement centred around two traditional weeks and since the Cadbury workers worked only three long shifts a week, they were only entitled to six days of paid personal and carer’s leave.

The High Court rejected the union’s argument that the reference in the Fair Work Act 2009 to “10 days” meant every employee, regardless of those of their work pattern and distribution of hours, could be absent without loss of pay on 10 working days per year.

“It would give rise to absurd results and inequitable outcomes,” the court said.

In its summary of the judgment, the court said “10 days” in the Act was two standard five-day working weeks.

“One ‘day’ refers to a ‘notional day’ consisting of one-tenth of the equivalent of an employee’s ordinary hours of work in a two-week period,” the summary said.

COVID-19 era demonstrates need for sick leave

The union representing the factory’s shift workers said the decision was a huge blow and would have implications for other Australian shift workers.

The Australian Manufacturers Workers Union said COVID-19 had shown the importance of personal leave

State secretary John Short wants the Federal Government to legislate that all workers get 10 days paid leave.

“They shouldn’t be paid less because they are having a sick day … they should be paid the same amount of hours that they should have been paid in sick leave and they should have got that on 10 occasions a year,” he said.

“I’d like to see the Federal Government make sure people get 10 days per year no matter what hours they’re working.

“What’s happened here is Cadbury and the Federal Government have taken sick leave away from workers.”

In a statement, the company welcomed the decision, saying it would ensure “continued equality between employees who complete the same ordinary hours in their working week, however on different rosters”.

It would also “provide certainty for all Australian employers with non-standard shift arrangements and those that employ part-time employees, including Mondelez International and others such as those in the nursing, mining, building and construction and transport and distribution industries.”

Exterior of Cadbury factory, Claremont, Tasmania.
Cadbury owners Mondelez wanted to pay workers sick leave based on a rate of 7.6 hours, even if they worked 12-hour shifts.(Facebook: Michael Della-Fontana)