AWU v AstraZeneca Pty Ltd [2018] FWC 4660: Landmark Decision On Sick Leave for Shift Workers

Friday 17 August 2018 @ 1.13 p.m. | Industrial Law | Legal Research

In AWU v AstraZeneca Pty Ltd [2018] FWC 4660 (8 August 2018), the Fair Work Commission (the “FWC”) has handed down a ruling against AstraZeneca where the company was using the standard industry practise of providing an average of 76 hours of paid leave, based on the average of a 7.6 hour working day. In this case,  the decision centred on a personal/carer’s leave dispute between the AWU and the company.

The dispute at AstraZeneca (which centred on a pay deal for employees) challenged how those 10 days worth of sick leave are calculated, with the AWU claiming the entitlement should be calculated based on the length of shifts completed by shift workers who work 12-hour or greater shifts.

Currently, full-time employees who work standard 38-hour work weeks are entitled to 10 days worth of personal/carer’s leave, or sick leave, per year as per provisions set out in the Fair Work Act 2009 (Cth).

Background to the Decision

The Australian Workers Union (the “AWU”) submitted that a worker's typical shift [at AstraZeneca] should be used to calculate the total number of hours, meaning a shift-worker who usually does a 12 hour shift should receive 120 hours of paid leave per year and not 10 days’ worth of leave based an average of a 7.6 hour working day.

In handing down the ruling in favour of the AWU, Deputy President Dean said [at para 75]:

“…  I cannot accept AstraZeneca’s submission that the entitlement to 10 days of paid personal/carer’s leave means an entitlement to payment equal to the time that would have been worked on 10 ordinary or standard days of averaged ordinary hours, i.e. of 7.2 or 7.6 hours duration.”

Comment from AWU

The Sydney Morning Herald quotes AWU National Secretary Daniel Walton as saying the decision "... potentially affects every employer in the country that employs shift-workers."

Mr Walton has written to the Fair Work Ombudsman demanding it correct the "bum advice" it has been giving to employers, which the FWC had contradicted:

"Employers who have been taking the FWO's advice and only paying their employees for 7.2 hours when they are missing 12-hour shifts on leave are likely liable to backpay stretching back six years."

Comment from AstraZeneca

Speaking to the Sydney Morning Herald,  a spokeswoman for AstraZeneca said the company was reviewing "and considering carefully" the FWC’s comments, with the spokeswoman saying further:

“AstraZeneca’s intention has been, and continues to be, to calculate personal leave entitlements in accordance with the relevant statutory legislation in a way that is fair and equitable to all employees."

Industry Reaction

While the AstraZeneca case has alarmed business groups and employers, SmartCompany reports that a separate case currently before the Federal Court is looking to overturn the decision made by the Commission, seeking clarification around the correct interpretation of personal/carer’s leave when it comes to shift workers.

A second case revolves around an Enterprise Agreement made at Mondelez Australia’s manufacturing plant, which provides shift workers with 96 hours of personal/carer’s leave per year, keeping in line with the 10-day rule but above the usual 76 hours provided to most Australian workers.

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