1 Fair Work Act 2009 s 739 - Application to deal with a dispute Mr Anthony Napoli Mr Luca Petroncini Mr Guillermo Roberto Lunardi v Sydney Harbour Federation Trust (C2024/8907; C2024/8909; C2024/8912) DEPUTY PRESIDENT CROSS SYDNEY, 5 MARCH 2026 Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] [1] On 6 December 2024, 7 December 2024, and 10 December 2024, Luca Petroncini, Guillermo Lunardi, and Anthony Napoli (‘Applicants’), respectively filed their F10 - Form F10 Application for the Commission to Deal with a Dispute in Accordance with a Dispute settlement procedure to the Commission (‘Applications’). [2] Conciliation was unsuccessful in resolving the dispute. There is agreement between the parties as to the jurisdiction of the Commission to resolve this dispute by way of arbitration in accordance with clauses 2.23 to 2.32 of the Sydney Harbour Federation Trust Enterprise Agreement 2024-2026 (‘Agreement’), and s 739 of the Fair Work Act 2009 (‘Act’). Background Facts [3] The Applications each dealt with the same issue, but were expressed differently by the respective parties. In his response to question 2.1 of the Form 10 Application, titled ‘What is the dispute about’, Mr Lunardi stated: I have been employed by the Sydney Harbour Federation Trust since September 2013 in full- time position (37.5hs. per week) as a Ranger. The position has had different rosters over the years but in May 2022 and with the view of preventing burnt-out due to long stretches of worked days a new one was tabled by Rangers and it was accepted by Management. Basically, the working day was to be longer from 7.5hs. a day to 8.5 hs. a day. This still covers the needs of the organization, on average still complies with the 37.5hs Ordinary Hours stated in Clause 3.1(d) ), Clause 3.2 and Clause 3.3 of the Sydney Harbour Federation Trust Enterprise Agreement 2024/2026. The roster follows a pattern that repeats itself after the completion of 7 weeks. [2026] FWC 180 DECISION [2026] FWC 180 2 Over the 7-week period a Ranger works 263.5hs (8.5hs a day x 31 days) and any other full time employee working Mon-Fri works 262.5hs (7.5hs a day x 35 days). To accommodate for the difference in extra time done by Rangers a shift, over the 7-week period, is shortened to 7.5 to equal the tally. Rangers, as shift-workers, comply with the same number of hours as any other full-time employee under the Agreement. Salary is paid in accordance with the reality dictated under such agreement and the proviso that in average an employee works 75hs a fortnight. … It is not that important if in any fortnight a Ranger works over or under 75hs as acknowledged in the payslip since on average that is what is accomplished in a 7-week cycle. Henceforth, a workday for the purposes of calculating salary and entitlements such as personal and parental leave, annual leave and long service leave and else a day, is 7.5hs or Ordinary Hours and according to the EA. According to Clause 6.6 of the Sydney Harbour Federation Trust Enterprise Agreement 2024/26: “Employees (other than casual employees) will accrue the equivalent of 4 weeks (20 days) (150hrs) annual leave for each full year of service accruing daily and credited at least monthly. (..)”. In addition, as per Clause 6.10: “Shiftworkers are entitled to an additional 1 week (37.5 hours) of annual leave in accordance with the NES. (..)”; and regarding Personal/Carer’s Leave entitlement, according to Clause 6.20: “Employees (excluding casual employees) will be entitled to 18 days paid (135 hours) personal/carer’s leave per annum (pro rata for part-time employees). This will be credited on a pro rata basis from the employee’s date of commencement. Part-time employees will progressively accrue this leave on a pro-rata basis. Untaken paid personal/carer’s leave accumulates from year to year.” Since October 2023 Payroll office has been deducting leave at a rate of 8.5hs per day instead of the 7.5hs. A Ranger, as it has been previously established, works 37.5hs a week in average and the payslip certifies it. The calculation of leave at 8.5hs instead of 7.5hs has left Rangers worse off since they cannot have anymore 4 weeks (20days) of annual leave as the rest of the SHFT workforce. The total of 150hs (4 weeks) divided by 7.5hs shift accommodates 20 days but only 17.64 days (150hours annual leave divided by 8.5). The same calculation affects any other kind of leave as per in the table below. Thursday Friday Saturday Sunday Monday Tuesday Wednesday W1 8.5hs 8.5hs 8.5hs 8.5hs W2 8.5hs 8.5hs 8.5hs 8.5hs W3 8.5hs 8.5hs 8.5hs 8.5hs W4 8.5hs 8.5hs 8.5hs 8.5hs 8.5hs W5 8.5hs 8.5hs 8.5hs 8.5hs 8.5hs W6 8.5hs 8.5hs 8.5hs 8.5hs W7 8.5hs 8.5hs 8.5hs 8.5hs 8.5hs [2026] FWC 180 3 Rangers have repeatedly and since October 2023, when the changes had been implemented, tried to argue with Payroll and Human Resource Officers at different levels across the organisation and received every time null responses. Rangers cannot comprehend why two workers employed as full timers and under the same agreement are to receive such different outcomes when trying to take holidays or look after a family member in need. Any person working Mon-Fri can take his/her Mum to the doctor for full 18 days a year according to the EA but a Ranger can only do so for 15 and a bit. The same applies to any other category of leave if a day is discounted in 8.5hs instalments. As a Ranger employed by the SHFT I only want to be given the same entitlements that correspond to me under the EA and this only can be achieved by calculating leave in Ordinary Hours at a rate of 7.5hs per day. [Emphasis added] [4] On 18 December 2025, the Respondent filed a response to the Applications (‘Response’). The Response provided the relevant background to the Applications, that was not factually disputed by the Applicants. The Response included the following: 4. Rangers and accommodation staff are employed by the Respondent as shift workers working an average of 37.5 hours per week. 5. In March 2023, the Respondent piloted 2 roster options with the Rangers, after which the Rangers unanimously sought to work the option with 8.5 hour shifts, instead of 7.5-hour shifts, to reduce working days per year and provide a better work / life balance. 6. In March 2023, the Respondent also implemented a new human resources software management system known as HumanForce, to unify and streamline a number of HR processes including but not limited to leave requests and payroll. 7. Following implementation of HumanForce and the new rostering system, the Rangers sought clarity regarding hours to be applied to leave types. 8. On 24 November 2023, the Respondent’s Manager of People and Culture provided an email to all Rangers stating: ‘each full day a full-time Ranger works, they are generally rostered on to work 8.5hrs. Therefore, whether Rangers are taking annual, or personal leave, or any other leave type... the number of hours that should be applied for a full rostered day, is 8.5hrs’. 9. On 20 December 2023, the Respondent conducted a training session with the Rangers to ensure any queries regarding the process and hours were addressed. Non- shift Worker Shift Worker Shift Worker Shift Length 7.5hs 7.5hs 8.5hs Annual Leave 20days 20 days + 5 days 17.64 days + 4.41 days Personal/Carer 18 days 18 days 15.88 days [2026] FWC 180 4 10. On 12 January 2024, further clarity was sought by one of the Applicant’s, Luca Petroncini. 11. On 12 March 2024, the Respondent, whilst consulting with the Rangers on the leave hours query and the Enterprise Agreement, provided the Rangers further clarity including a reference to the High Court decision in Mondelez Australia Pty Ltd, with the Respondent’s understanding: ‘In essence this decision clarified that a person is to be debited the same number of hours that they were scheduled to work rather than the number of days worked’. 12. Unsatisfied with the position taken by the Respondent, the Rangers raised the leave hours query with their union representative, the Community Public Sector Union (CPSU). 13. The CPSU reviewed the leave hours query, then, joined by the Rangers, attended a meeting with the Respondent on 19 September 2024. The CPSU addressed the Rangers’ leave hours query in the meeting, expressing support of the Respondent’s position. Enterprise Agreement 14. The Applicants are seeking leave entitlements to be calculated on a daily basis, rather than an hourly basis, quoting leave references within the Enterprise Agreement include references in ‘days’, before references in ‘hours’: Clause 6.6 – ‘Employees (other than casual employees) will accrue the equivalent of 4 weeks (20 days) (150hrs) annual leave for each full year of service accruing dail and credited at least monthly.’ Clause 6.10 - ‘Shiftworkers are entitled to an additional 1 week (37.5 hours) of annual leave in accordance with the NES.’ Clause 6.20 - ‘Employees (excluding casual employees) will be entitled to 18 days paid (135 hours) personal/carer’s leave per annum (pro rata for part-time employees)’. 15. The Respondent notes the Enterprise Agreement covers all roles within the Harbour Trust and whilst ‘days’ are included for the ordinary employee working 7.5 hour days, ‘hour’ references are included specifically for shift workers which includes Harbour Trust Rangers, to avoid inconsistencies. 16. In the event Applicants leave was taken in ‘days’ rather than rostered ‘hours’, the Applicants would in turn receive leave above that entitled. Conclusion 17. In conclusion, the Respondent respectfully maintains the position that, leave should be taken and debited based on the number of hours the Applicants are rostered to work— specifically, 8.5 hours per day. This approach has been supported by the Rangers' representative and is consistent with the principles outlined in the High Court decision in Mondelez Australia Pty Ltd. 18. The Respondent acknowledges the discrepancies highlighted within the Applicants pay slips. The Respondent is currently working through an audit of leave and will ensure these points are addressed, if not already rectified with the Harbour Trust Accounts Team. [2026] FWC 180 5 19. Allowing leave to be taken in full days rather than rostered hours would result in the Applicants receiving leave in excess of their entitlement. 20. Therefore, the Respondent considers the current approach to leave entitlements fair and consistent with both the preference of the Rangers in their rostered hours and the principles of equity, as outlined in relevant legal precedents. [5] Regarding cash-out of annual leave, cl 6.11 of the Agreement governs provisions around employees cashing-out annual leave. It imposes conditions on such requests, however, does not specify whether cashing-out must be requested in ‘days’ or ‘hours’. [6] In March 2025, the Respondent updated its Request to Cash Out Annual Leave form in order that all employees submit requests in ‘hours’ as opposed to ‘days’. The Agreement [7] As noted above, the relevant enterprise agreement is the Sydney Harbour Federation Trust Enterprise Agreement 2024-2026. The relevant terms of the Agreement to the subject dispute are (emphasis added to each): (a) The ‘Ordinary of Hours of Duty’ subheading; though Clause 2 contains provisions for change to regular roster or ordinary hours of work: 3.2 The ordinary hours of work for full-time employees (other than shiftworkers) covered by this Agreement are 37.5 hours per week to be worked on the basis of 7.5 hours each day Monday to Friday. 3.3 Ordinary hours for shiftworkers are an average of 37.5 hours per week. 3.4 For part-time employees, ordinary hours of work are the regular number of hours agreed with the Harbour Trust. (b) Annual Leave: 6.6 Employees (other than casual employees) will accrue the equivalent of 4 weeks (20 days) (150hrs) annual leave for each full year of service accruing daily and credited at least monthly. Annual leave for part-time employees accrues on a pro rata basis. (c) Shift Workers: 6.10 Shiftworkers are entitled to an additional 1 week (37.5 hours) of annual leave in accordance with the NES. For the purpose of the additional week of annual leave provided for under the NES, a “shiftworker” under this Agreement is a worker who is regularly rostered to work on Saturdays, Sundays and public holidays. Additional leave for part time shiftworkers accrues on a pro rata basis. (d) Cash Out of Annual Leave: 6.11 To be eligible to cash out annual leave, an employee must have taken at least 2 weeks annual leave or long service leave in the preceding 12 months. There is no limit to the amount of annual leave that an employee may cash out provided that the employee’s [2026] FWC 180 6 remaining accrued entitlement to annual leave is not less than four weeks. Each cashing out of a particular amount of annual leave must be made by a separate agreement in writing with the Executive Director. The employee will be paid the full amount that would have been payable to the employee had the employee taken the leave that the employee has cashed out. (d) Regarding Personal/Carer’s Leave: 6.20 Employees (excluding casual employees) will be entitled to 18 days paid (135 hours) personal/carer’s leave per annum (pro rata for part-time employees). This will be credited on a pro-rata basis from the employee’s date of commencement. Part-time employees will progressively accrue this leave on a pro-rata basis. Untaken paid personal/carer’s leave accumulates from year to year. Questions For Determination [8] On 30 April 2025, after seeking the parties submissions as to appropriate questions for determination, the Commission advised the parties the questions for determination were as follows: 1. How many hours are to be applied to a shift worker’s annual and personal leave requests, considering: a. a shift worker is rostered to work 8.5 hour shifts, averaging 37.5 working hours per week; b. a shift worker’s Ordinary Hours are 37.5 hrs per week on average (clause 3.3 Sydney Harbour Federation Trust Enterprise Agreement 2024-2026 (EA))’; c. Shiftworkers Annual and Personal/Carer’s Leave accrual rate is based on Ordinary Hours in accordance with clauses 6.6, 6.10, 6.20 and associated clauses within the EA. 2. Are cash-out annual leave requests, to be submitted and processed in hours, taking into account: a. a shift worker is rostered to work 8.5 hour shifts, averaging 37.5 working hours per week; b. Cash-out provisions are in accordance with clause 6.11 of the EA. **Shift worker for these questions means a ranger working currently 8.5 hour shifts** Mondelez [9] The Applicants and the Respondent both relied upon the decision of the High Court in Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union & Ors (Mondelez).1 [10] Mondelez was concerned with how the entitlement to paid personal/carers leave is calculated under s 96(1) of the Act. The factual matrix to the Judgment involved two employees who each worked on average 36 ordinary hours per week, being an average of three 12-hour shifts per week. Mondelez credited the employees 96 hours of paid personal/carers leave per year of service, and when they take paid personal/carers for one 12-hour shift, Mondeluz deducts 12 hours from their accrued balance. [2026] FWC 180 7 [11] The two employees argued that s 96(1) of the Act entitles them to paid personal/carer's leave sufficient to cover ten absences from work per year. That argument was accepted by a majority of the Full Federal Court which held that ‘day’ in s 96(1) refers to ‘the portion of a 24 hour period that would otherwise be allotted to work’ (‘the “working day” construction’). [12] The majority of the High Court, however, rejected the ‘working day’ construction and instead held that what is meant by a ‘day’ or ‘10 days’ must be calculated by reference to an employee's ordinary hours of work. ‘10 days’ in s 96(1) is two standard five-day working weeks. One ‘day’ refers to a ‘notional day’ consisting of one-tenth of the equivalent of an employee's ordinary hours of work in a two-week period. Because patterns of work do not always follow two-week cycles, the entitlement to ‘10 days’ of paid personal/carer's leave can be calculated as 1/26 of an employee's ordinary hours of work in a year. [13] Finding that the 'notional day' construction of s 96 is consistent with the legislative purposes of the Act the extrinsic materials and the legislative history, the majority also went on to find that the alternative 'working day' construction would give rise to absurd results and inequitable outcomes, and would be contrary to the legislative purposes of fairness and flexibility in the Fair Work Act. Consideration [14] The gravamen of the Applicants’ case is disclosed by the following exchange in transcript:2 THE DEPUTY PRESIDENT: If I could just interrupt you. It all gets down, Mr Napoli, to this 7 and a half. They deducted 8 and a half, but they do less than 20 days on average in a year when the leave is taken; correct? MR NAPOLI: Correct. THE DEPUTY PRESIDENT: But if it's equivalent to 150 hours plus the extra week, what's the problem? MR NAPOLI: Because physically - in monetary terms, yes, it works out. But in days, it doesn't work out. THE DEPUTY PRESIDENT: Because you don't work 20 days a month. You work less because of the beneficial deal that has been put in place. MR NAPOLI: We actually work more each day. We work one hour extra each day to make - - - THE DEPUTY PRESIDENT: So you can take days off. MR NAPOLI: Yes. Correct. So, yes, that was beneficial, and that's what we agreed. Management and rangers agreed upon that. And, yes, that was the notion of having something that was more workable and work-life balance, being able to have – instead of having to work 7 days in a row, this was what was implemented to give us - because so many people were leaving the position because they were burning out. So to negate that, we decided to work one hour extra each day, but the entitlements are still the same. The entitlements still, as you said - - - [2026] FWC 180 8 THE DEPUTY PRESIDENT: They don't need to do the calculation I'm suggesting, because you would agree that on average it will even out at 150 hours per annum. MR NAPOLI: Monetary terms, but not actual physical days. THE DEPUTY PRESIDENT: Because the days are longer. MR NAPOLI: But the entitlement is 7 and a half hours. It's ordinary hours. THE DEPUTY PRESIDENT: Let's just dispose of one thing. There's no need for them to do the calculation because you, at least, have agreed that the calculation will show 150 hours of accrual and 150 hours on average. MR NAPOLI: At 7 and a half hours, if that's – if the mathematics, yes. THE DEPUTY PRESIDENT: Yes. MR NAPOLI: But if you use 8 and a half hours, then, monetary-wise, we get paid the right amount, but in actual physical days that we can take off, it's less. THE DEPUTY PRESIDENT: Because you're working less days anyway. [Emphasis added] [15] The Applicants do not allege underpayment, and they, along with other Rangers not part of the Applications, are clearly supportive of 8.5 hour shifts (with one 7.5 hour shift in the seven week cycle to make 37.5 hours a week). They object, however, to their accrual being debited by 8.5 hours on days where they are otherwise rostered to work 8.5 hours but instead take the relevant leave. [16] The Applicants rely on the ‘notional day’ construction outlined in Mondelez, and submit that the ‘notional day”’ in this matter is a 7.5 hour day. While Mondelez is determinative, it is important to observe that Mondelez involved issues of both accrual and deduction of leave, while the Applicants challenge only deduction. [17] Where Mondelez has dealt with appropriate deductions, it has confirmed the approach of the Respondent. In particular: (a) At paragraph [30] of Mondelez, the High Court observed how the Explanatory Memorandum to the Fair Work Bill 2008 (Cth) described the operation of the general principles of the scheme in these terms: Therefore, a full-time employee who works 38 hours a week over five days (Monday to Friday) will accrue the same amount of leave as a full-time employee who works 38 ordinary hours over four days per week. Over a year of service both employees would accrue 76 hours of paid personal/carer's leave[.] Similarly, the requirement to pay an employee for their absence on the basis of their ordinary hours of work for the period of the absence means that the employee is entitled to be paid for his or her ordinary hours of work on the days in the week they would have worked but for being absent from work on paid personal/carer's leave (ie, excluding overtime)." [2026] FWC 180 9 [Emphasis added] (b) At paragraph [31] of Mondelez, the High Court noted that the above description recorded ‘… that the Bill was to "ensure that the amount of leave accrued over a period [was] not affected by differences in the actual spread of an employee's ordinary hours of work in a week’. The High Court noted three examples were set out under the Explanatory Memorandum description just quoted to ‘illustrate the intended operation of the accrual and payment provisions’. The last example was particularly apposite to the Applications, and was as follows: Sudhakar is a full time employee who has entered into a permissible averaging arrangement under the NES and works an average of 152 hours every four weeks (based on 38 ordinary hours per week). The number of ordinary hours that Sudhakar works on any given day may vary according to the averaging arrangement. However, over a year he accrues ten days (76 hours) of paid personal/carer's leave. If he is sick and takes leave for a day, he will be entitled to be paid for the number of ordinary hours he was rostered to work on that day (but not for any additional overtime hours that he was to work). [Emphasis added] [18] The debiting of leave accrual by 8.5 hours on days where the employees are otherwise rostered to work 8.5 hours but instead take the relevant leave, is the correct interpretation of the Agreement and consistent with Mondelez. Conclusion [19] The answers to the questions posed are: 1. How many hours are to be applied to a shift worker’s annual and personal leave requests? [20] It is dependent upon the employee’s ordinary hours rostered for work. On the day or days in the week that the employee would have worked but for being absent from work on paid personal/carer's leave or annual leave, payment from the leave balance will occur. [21] It is noted that shifts are ordinarily 8.5 hours, and so if an employees was rostered to work 8.5 hours but instead takes leave on such a day, 8.5 hours is applied to that leave request. Where however, the employee is rostered to work the one 7.5 hour shift in the seven week cycle, 7.5 hours is applied to that leave request. 2. Are cash-out annual leave requests to be submitted and processed in hours? [22] Clause 6.11 of the Agreement governs cashing-out annual leave, but does not specify whether cashing-out must be requested in ‘days’ or ‘hours’. The Respondent, however, has updated its Request to Cash Out Annual Leave form so that requests are expressed in ‘hours’ as opposed to ‘days’. [23] In circumstances where, for Rangers, a ‘day’ has no consistent meaning, particularly noting such employees are rostered to work the one 7.5 hour shift in the seven week cycle of 8.5 hour shifts, offering cashing out of annual leave in hours as opposed to days is consistent [2026] FWC 180 10 with the terms of the Agreement (and the answer to question 1), and offers greater clarity and flexibility for those employees without affecting entitlements. DEPUTY PRESIDENT Appearances: Mr A Napoli appearing as the First Applicant Mr G Lunardi appearing as the Second Applicant Mr L Petroncini appearing as the Third Applicant Mr S Allington-Lodge appearing on behalf of the Respondent Mr C Tate appearing on behalf of the Respondent Mr G Zuiderwyk appearing on behalf of the Respondent. Hearing details: 12 September 2025 and 11 December 2025 Fair Work Commission 80 William Street East Sydney 2011 NSW Final written submissions: Respondent's response to questions submitted for Determination received on 26 September 2025. Applicant’s submissions received on 8 October 2025. Printed by authority of the Commonwealth Government Printer <PR795976> 1 (2020) 271 CLR 495. 2 Transcript 12 September 2025, at PN 193 to 209.