Mondelēz International has announced plans to lodge an appeal with the High Court over a Federal Court ruling on leave entitlements, which it said creates “inequality” between workers.

Last month, the Federal Court overturned the longstanding practice of calculating certain leave entitlements for shift workers, by ruling that the minimum 10 days’ paid personal leave should be calculated by the ordinary hours that a person works a day rather than a set 7.6 hours.

The Morrison government is also seeking leave in the High Court to overturn the ruling, which would provide employees working long shifts and/or industry-specific rosters with far greater leave entitlements than those who work a standard 38-hour week.

Mondelēz International said in a statement on Monday that the decision “creates inequality between employees in the same workplace who complete the same work, however on different rosters” and “significantly departs from the Parliament’s legislative intent as set out in the Fair Work Act’s Explanatory Memorandum”.

“The decision affects not only Mondelēz International but all Australian employers with non-standard shift arrangements, including those in industries such as nursing, mining, building and construction, aged care, special events and transport and distribution,” Mondelēz said.

The case involving one of the nation’s largest food manufacturers and the Australian Manufacturing Workers Union (AMWU), was based on 12-hour shift workers at Mondelēz’ Cadbury chocolate plant in Tasmania, which will mark 100 years of manufacturing in 2022.

Mondelēz president for Australia, New Zealand and Japan, Amanda Banfield, said the ruling could impact the competitiveness of local manufacturing.

“This ruling creates inequality and uncertainty for businesses and workers and potentially impacts the competitiveness of local manufacturing. The cost of implementing the decision across industry would also be significant,” she said.

“We feel we have little choice but to appeal in order to clarify this matter.”

AMWU National Secretary Paul Bastian said in a statement to Inside FMCG that the “Morrison Government is siding with big business to attack Australian workers”.

“Minister Porter is wilfully misrepresenting the Mondelēz decision to protect the hip pockets of his big business mates,” Bastian said.

“The Mondelēz decision is about ensuring that shift workers who work ordinary hours of more than 7.6 hours a day have the same ten days of sick leave as any other worker. It’s about basic fairness.”



Australia Resources and Energy Group (AMMA) which represents employers in the industry, sided with Mondelēz, saying the decision is “grossly unfair” and supports the decision to appeal.

In a statement on Monday, AMMA said the ruling is “inconsistent” with “longstanding industry practice” as well as “Parliament’s intended purpose of the provisions and previous case law”.

“The decision wildly deviates from current and widespread leave accrual practices, creating uncertainty, confusion and concern for employers and employees. The astonishing interpretation of two of the three Judges in this case would impact many employers across almost every industry,” Steve Knott chief executive of AMMA said.

“Not only does the decision create avoidable uncertainty for both employers and employees, it will expose businesses to an unprecedented level of financial risk.”

Mondelēz employs over 2,000 workers across five manufacturing plants and its head office, delivering iconic brands such as Cadbury, The Natural Confectionery Co., Pascall, and Philadelphia.