Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union

Mondelez Australia Pty Ltd, a national system employer, sought declarations regarding the interpretation of their Enterprise Bargaining Agreement and the Fair Work Act 2009 (Cth). The Fair Work Commission had raised concerns that the Enterprise Agreement provided for a personal/carer's leave entitlement of 80 hours per annum, rather than 10 days per annum as provided for under the National Employment Standards (NES) in s 96 of the Fair Work Act. The Commission expressed concern that employees covered by the proposed agreement working 12 hour days would not be entitled to their full 10 day NES entitlement. Mondelez declined to provide an undertaking to address this issue and made extensive written submissions to the effect that there was no inconsistency between the entitlement in clause 24 of the Agreement and that in s 96 of the Fair Work Act.

The Court was required to determine the proper construction of s 96(1) of the Fair Work Act, whether the Court had jurisdiction to hear and determine the application for declaratory orders, and whether the declaratory orders sought should be made. The Court rejected the notion that a "day" in s 96(1) is a "notional day" consisting of an employee’s average daily ordinary hours based on an assumed five-day working week. Instead, it found that a "day" in s 96(1) refers to the portion of a 24-hour period that would otherwise be allotted to work (a "working day"). The Court concluded that paid personal/carer's leave accrues over the whole length of an employee's employment with a particular employer, to the extent that it is not taken. The amount of paid personal/carer's leave that may be taken in a year is limited to the amount that has been accrued, but is not otherwise limited.

The Court held that it had jurisdiction to hear and determine the application for declaratory orders. It found that the interpretation of an enterprise agreement that confers rights or imposes obligations is a "matter" that may properly be said to arise under the Fair Work Act. The Court found that the declaratory orders sought should not be made, and dismissed the application.