I have a shiftworker who works 32 hours per week and regularly works ordinary hours on a Saturday and Sunday. How many days of annual leave is the employee entitled to per year?
Under the Fair Work Act most permanent employees are entitled to 4 weeks of paid annual leave. However, shiftworkers may be entitled to additional amounts of paid annual leave.
The Fair Work Act entitles permanent employees to 5 weeks of paid annual leave if a modern award or enterprise agreement applies to the employee and defines or describes them as a shiftworker for the purposes of the National Employment Standards (NES).
If an employee is award/agreement covered then reference will need to be made to the exact definition of ‘shiftworker’ within that industrial instrument.
For example, clause 41.3 of the Manufacturing and Associated Industries and Occupations Award 2010 is titled “Definition of shiftworker" and provides:
“For the purpose of the additional week of annual leave provided for in s.87(1)(b) of the Act, a shiftworker is a seven day shiftworker who is regularly rostered to work on Sundays and public holidays.”
Under the Fair Work Act an award/agreement free employee will be entitled to 5 weeks of paid annual leave if they are employed in an enterprise in which shifts are continuously rostered 24 hours a day for 7 days a week and the employee is regularly rostered to work those shifts.
The employee will also be required to either regularly work on Sundays and public holidays or to be in a class of employees prescribed by the regulations as shiftworkers for the purposes of the NES.
A court has never considered how many Sundays and public holidays an employee will need to work in order to satisfy the requirements of the phrase ‘regularly works on Sundays and public holidays’. There is some debate on the meaning of this phrase.
However, significant guidance on this matter was provided by the 2015 Fair Work Commission decision of O’Neill v Roy Hill Holdings Pty Ltd [2015] FWC 2461.
This decision held that an award/agreement free employee would be eligible for 5 weeks of paid annual leave per year under the Fair Work Act if they worked 34 Sundays and 6 public holidays a year. The Fair Work Commission considered numerous past industrial decisions on this issue before reaching their conclusion.
The Fair Work Commission did not confine their interpretation in this case to award/agreement free employees. This means that this decision can be used to help interpret award definitions of shiftworkers.
Enterprise agreements can have their own specialised definitions of terms which would need to be considered carefully. However, the decision may be a useful interpretative tool in determining whether shift workers under enterprise agreements are eligible for 5 weeks of paid annual leave.
This may be useful, for example, when an enterprise agreement is silent on when an employee could be entitled to an extra week of annual leave for working regularly on Sundays and public holidays. Similarly, the decision may be a useful interpretative tool when an enterprise agreement entitlement to an additional week of annual leave is drafted in a similar manner to the requirements of the Fair Work Act discussed above.
For more information about shiftworker entitlements, please call the Ai Group Workplace Advice Line on 1300 55 66 77.
