Do shift workers get an extra week’s annual leave?

Q&A

Do shift workers get an extra week’s annual leave?

Paul Munro explains how to determine if a shift worker is entitled to an additional week's annual leave?

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Are our shift workers entitled to an extra week's annual leave?

This question was recently sent to our Ask an Expert service.
 
Q We have an employee who is covered by the Car Parking Award 2010. He works 38 hours from 2.54pm to 11pm on Monday to Thursday each week and then 2.54pm to 11pm each Sunday. Under the award, ordinary hours can be worked between 7am to 7pm on any day of the week. Time worked from 7pm to 11pm weekdays is paid a 12.5% afternoon shift loading. Sundays receive a 100% loading.

Although the site where the employee works operates 24/7, this employee does not work rotating shifts nor do his ordinary hours span across all seven days of the week. The award (cl.25) defines a shift worker to mean a seven-day shift worker who is regularly rostered to work on Sundays and public holidays.

Do the shift hours worked by this employee fall within the definition of a seven-day shift worker for the purpose of the Fair Work Act because his ordinary hours include Sundays? 
 
A To qualify for an additional week’s annual leave, a shift worker must regularly work shifts on a continuous 24/7 shift roster and be regularly required to work Sundays and public holidays. This means both situations must exist, i.e., the employee works rotating shifts on a 24/7 roster and is regularly required to work Sundays and public holidays.

In the case of employees covered by a modern award or an enterpise agreement, the meaning of a seven-day shift worker has been determined by precedent case law over a number of years.

Case law


The basis for the awarding an extra week’s annual leave was, largely, to provide workers with an opportunity for greater leisure time with their families to compensate for being required to work on Sundays and public holidays.

A full bench of the AIRC considered the issue of entitlements to extra annual leave for seven-day continuous shift workers. See Media, Entertainment and Arts Alliance [MEAA] and Theatrical Employees (Sydney Convention and Exhibition Centre) Award 1989 [1995] AIRC Print M7325

In this matter the MEAA made an application for an extra week’s annual leave for workers who regularly worked Sundays and holidays. In this decision a 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 number was determined in an earlier decision of the Industrial Commission of New South Wales in an annual leave case – Hospital Employees Conditions of Employment (State) Award [1976] AR (NSW) 275.

A subsequent matter before the same tribunal considered a claim for a proportionate entitlement to an extra week’s annual leave where a number of members worked for six months on 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 duty, 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 [2004] AIRC 231 PR944613.

Award/agreement-free employees


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

The relevant subsection of the Fair Work Act states:

An award/agreement-free employee qualifies for the shift worker annual leave entitlement if: 
 
(a) the employee: 
(i) is employed in an enterprise in which shifts are continuously rostered 24 hours a day for 7 days a week; and 
(ii) is regularly rostered to work those shifts; and 
(iii) regularly works on Sundays and public holidays; or 

(b) the employee is in a class of employees prescribed by the regulations as shift workers for the purposes of the National Employment Standards. 

The bottom line: Under the National Employment Standards, an additional week’s annual leave applies only to a shift worker who must regularly work shifts on a 24/7 shift roster and regularly work on Sundays and public holidays.
 

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