Employers win landmark personal leave case

In a decision strongly welcomed by the business sector, a High Court judgement has come down in favour of employers in the case of personal leave and shift times, overturning last year's heavily criticised Federal Court ruling which opponents said would have been devasting for business.

The ruling found that employees who worked 12-hour shifts were not eligible for more personal or carers leave than employees who worked the same number of hours over regular eight-hour shifts.

Andrew Macaulay, CEO at print employers association PVCA said, “It’s the right decision. The IR space already has enough for employers to deal with. Commonsense needed to prevail, and thankfully it has done. Employers and employees need to focus on working to ensure the business and their jobs remain.”

Jenny Berry at Ai Group said, “This battle has been going on for well over two years. A loss would have had devastating outcomes for all businesses that employ shift workers, including printers. It’s a huge win."

The 4:1 judgement overturned last year’s Federal Court ruling on the AMWU proposal, brought on behalf of two workers at a Tasmanian factory, which angered employers.

The employees in question were doing the same 36 hours in their three 12-hour shifts as employees on five eight-hour shifts.
Acting industrial relations minister Matthias Cormann said the decision, “ensures employees who work the same number of hours per week accrue the same number of hours of leave each year, regardless of how their shifts are rostered”.

The chief judge said if the AMWU’s case was accepted it would limit flexibility for both employees and employers as employers would be less likely to employ people to work 12 hour shifts.

The 12-hour shift system, often referred to as continental shifts, is common in the printing industry.

Innes Willox, chief executive of the national employer association, Ai Group, said “The High Court's judgment preserves widespread industry practice. If the Federal Court's interpretation of the expression '10 days of paid personal/carer's leave' in section 96 of the Fair Work Act had been upheld, there would have been major cost implications for a very large number of businesses. In addition, a major barrier would have been imposed on employers agreeing to part-time employment arrangements, including for employees returning from parental leave.

“The interpretation adopted by the High Court ensures that all employees are entitled to take up to two weeks off work each year for personal/carer's leave regardless of how many ordinary hours an employee works in that two-week period.

“A full-time employee who works 38 ordinary hours per week is entitled to 76 hours of personal/carer's leave per year and a part-time employee who works 20 hours per week is entitled to 40 hours of personal/carer's leave per year. The Court's judgment ensures equity amongst full-time and part-time employees, and amongst eight-hour and 12-hour shift workers.”