Are your shiftworkers entitled to 5 weeks annual leave?
Determining who qualifies as a “shiftworker” and is entitled to additional annual leave under the National Employment Standards (NES) can be a complex task, and the consequences of getting it wrong can be costly.
Many awards and agreements define a shiftworker, for the purposes of the NES annual leave entitlement, to mean “a 7-day shiftworker who is regularly rostered to work on Sundays and public holidays”.
In the recent decision of Bega Dairy and Drinks Pty Ltd formerly known as National Foods (Dairy Foods) Limited v United Workers’ Union [2024] FWC 171, the Fair Work Commission provided further clarification of the definition of a shiftworker.
The Commission firstly held that in order to meet the definition of a shiftworker, an employee needed to work both a 7-day roster and be regularly rostered to work on Sundays and public holidays.
The Commission also held that the employer’s shift operations did not need to be continuous (that is, 24/7), however the employee needed to work on at least part of each of the 7 days of the week over a relevant roster period.
Crucially, the Commission found that a shiftworker who worked on a fixed roster (for example, Monday to Friday) did not meet these requirements and was not a 7-day shiftworker.
The parties had recognised the principle, established in O’Neill v Roy Hill Holdings Pty Ltd [2015] FWC 2461, that the phrase “… who is regularly rostered to work on Sundays and public holidays” means an employee who has worked at least 34 Sundays and 6 public holidays in a year and the Commission proceeded on that basis.
An additional week’s annual leave?
Consequentially, only shiftworkers who:
- performed work on each of 7 days of the week under a rotating roster; and
- worked at least 34 Sundays and 6 public holidays,
were entitled to an additional week’s annual leave.
The Decision provides useful guidance on how the term “shiftworker” will be interpreted in a number of modern awards and agreements. It should also be noted that whilst the Roy Hill standard has been accepted in relation to many modern awards and agreements, its application is not universal.
Next Steps...
Employers should carefully review the shiftworker definition applicable to their industry and industrial instruments to ensure that they are correctly applying the NES annual leave entitlement.
If you would like to know more, please contact us and one of our Workplace Strategists will be in touch within 24 hours.