In October 2017, Mondelez Australia Pty Ltd ("Mondelez"), a chocolate manufacturing facility in Tasmania, sought approval of an EBA. Clause 24 of the EBA provided for 80 hours per year of personal/carer's leave rather than the 10 days per annum required by the NES.
The Fair Work Commission ("FWC") was concerned that the entitlement to 80 hours would preclude shift workers who worked a 12-hour shift from 10 days' personal/carer's leave. Mondelez refused to provide any undertaking to change the entitlement and provided submissions as to why it believed its EBA did comply with the minimum entitlement. In April 2018, the FWC refused a request by the Workplace Minister to refer the case to a five-member full bench. However, a further hearing is now scheduled for 6 September 2018 to determine whether the matter will be referred to the Full Court. The sick leave entitlements for shift workers across Australia are also being scrutinized in a dispute between the Australian Workers' Union ("AWU") and pharmaceutical company AstraZeneca in relation the way in which AstraZeneca employees accrue personal leave. AstraZeneca submitted that the quantum of accruable leave, whether expressed in days or hours, is not affected by the number of days over which an employee works his ordinary hours.
The AWU contended that calculating leave based on employees working 7.6 hours per day resulted in some employees receiving an inferior entitlement to the minimum 10 days under the NES. AstraZeneca, on the other hand, argued that the minimum sick leave entitlement needed to reflect the total number of hours for which the employee was being paid. In August 2018, the FWC handed down its decision concluding that a worker's typical shift length could be used to calculate the yearly entitlement to sick leave. The FWC ruled against employers providing an average of 76 hours of paid sick leave per year, based on employees working 7.6 hours per day, regardless of their typical shift length.