Are our employees continuous shift workers?

Are our employees continuous shift workers?
By Paul Munro on 7 November 2017 Do employees need to be rostered across different shifts to qualify as continuous shift workers?

This question was recently sent to our Ask an Expert service.

Q Our question relates to the entitlement under the National Employment Standards to an additional week’s annual leave for a ‘continuous shift worker’. A particular area of our company has three shifts – morning, afternoon and night. The days on which the roster is spread are Sunday to Thursday inclusive. Employees in this area normally work two of these shifts but occasionally work the third shift to cover for someone who is absent.

Would this shift roster system be considered continuous shift work? Or would the employees need to be regularly rostered to work all three shifts across seven days per week?

The employees are employed under the Manufacturing and Associated Industries and Occupations Award 2010.

A To qualify for  five weeks’ annual leave under the National Employment Standards, a shift worker must work on a continuous shift roster that falls within the definition prescribed by the Fair Work Act (in the case of an award/agreement-free employee) or as defined by the applicable modern award or enterprise agreement.

Modern awards

In the case of an employee covered by a modern award, the meaning of a ‘continuous shift worker’ may be defined by the applicable award. Clause 36.3(a) of the Manufacturing and Associated Industries and Occupations Award 2010 defines a continuous shift worker to mean “work carried on with consecutive shifts of employees throughout 24 hours of each of at least six consecutive days without interruption except for breakdowns or meal breaks or due to unavoidable causes beyond the employer’s control.”

In the above circumstance, the employees would not be entitled to the additional week’s annual leave as they are not regularly rostered to work those shifts over the period of the roster, but only occasionally.

Fair Work Act – award/agreement free employee

The Fair Work Act (s87(3)(a)) states that an award/agreement-free employee qualifies for the shift worker annual leave entitlement if the employee:
  • is employed in an enterprise in which shifts are continuously rostered 24 hours a day for seven days a week
  • is regularly rostered to work those shifts, and
  • regularly works Sundays and public holidays.
This means both situations must exist – the shift roster must be a 24-hour, seven-day per week shift roster on which the employee works rotating shifts, with the nature of the roster being that an employee is regularly required to work Sundays and public holidays.

The definition of a seven-day shift worker contained in the Fair Work Act (s87(3)) generally reflects decisions by various industrial courts and tribunals.

Case law

The basis for the awarding an extra week’s annual leave was, in large measure, to provide workers with an opportunity for greater leisure time with their families. This was to compensate for those days when they were absent from home because of being required to work on Sundays and public holidays.

A full bench of the (then) Australian Industrial Relations Commission considered the issue of entitlements to extra annual leave for seven-day continuous shift workers. See Industrial Relations Commission Decision 2617/1995 [1995] AIRC 2425; (1 December 1995).
 
In this matter the MEAA made application for an extra week’s annual leave for workers who regularly worked Sundays and holidays. In this decision the full bench adopted the threshold of 34 Sunday shifts and six public holiday shifts as the guideline to apply to seven-day shift workers. This threshold to qualify for an extra week’s annual leave for seven-day shift workers was determined in an earlier decision of the Industrial Commission of New South Wales.

A subsequent matter before the (then) Australian Industrial Relations Commission considered a claim for a proportionate entitlement to the extra week’s annual leave where a number of members worked for six months on such a seven-day continuous shift roster. The tribunal determined that:
  • for employees to be eligible for an extra week’s annual leave it is required that they normally work on a continuous shift roster and are regularly required to work Sundays and public holidays as part of that roster
  • should an employee normally work solely on a continuous shift roster but for part of a year be transferred to a five-day, day work roster, the employee may be eligible for a proportionate amount of an extra week’s annual leave;
  • if a worker or section of workers do not usually work on a continuous shift roster, and fall short of 34 Sundays and public holidays worked while on such a roster, they are not eligible for an extra week’s annual leave nor are they eligible for a proportionate amount of extra annual leave.
See Australian Municipal, Administrative, Clerical and Services Union - Western Australian Branch v Western Power Corporation - PR944613 [2004] AIRC 231; (16 March 2004).

The bottom line: Generally, a shift worker receives five weeks’ annual leave under the National Employment Standards only when required to work on a shift roster system which operates 24 hours a day, and the roster requires the employee to regularly work on Sundays and public holidays.
 

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