Multiple definitions of shiftworker in different Awards
The meaning of shiftworker is often unclear and disputed. There are several issues that arise for employers because of this:
An additional week of annual leave is available if an Award applies to an employee and defines them as a shiftworker.
There are inconsistent definitions across Awards, which are often unclear and uncontested.
Awards contain unclear variables / qualifications to the shiftworker definition – for example, ‘7-day shiftworkers’ or ‘24 hours a day 7 days a week’.
This article will provide a simple, actionable framework for employers to determine whether a shiftworker qualifies for additional annual leave.
Variations in shiftworker terms / definitions for the purpose of the NES
7-day shiftworker
Who is not (or not necessarily) a 7-day shiftworker
An employee who is not a dayworker or who simply works hours outside the normal span of hours.
A shiftworker who works regular fixed shifts that include Sundays and / or public holidays.
Shiftworkers whose shifts are not spread over seven days of the week but are fixed shifts confined to the same five (or three or four) days of the week, including Sundays, who may or may not be required to work on public holidays.
Shiftworkers whose shifts are spread over the seven days of the week and whose rosters require them to work irregularly on Sundays (i.e. they work less than 1/7th of their working days on Sundays), irrespective of whether they are required to work on public holidays, which may fall on working days under the roster.[4]
Who is a 7-day shiftworker?
Shiftworkers whose ordinary hours are spread regularly (and evenly) over seven days of the week including Sundays and public holidays for each given year of employment. The focus is on the shifts worked (retrospectively), not those rostered. The employee must regularly (i.e. evenly) work across all seven days and Sundays and public holidays.
Generally, a minimum of 34 Sunday shifts and 6 public holidays per annum is required.
Both full time and part time employees can be 7-day shiftworkers. The term does not have a different meaning across different industries (except where further express words in an Award / EBA define, limit, qualify or extend the meaning of 7-day shiftworker).
Is continuous 24/7 rostering required for seven-day shiftworkers (i.e. for example definition (2) above)
No. This is only required if the definition in the relevant Award / EBA requires shiftworkers to be continuously rostered 24 hours a day for 7 days a week (as per example (3) on page 3).
The relevant shift or rostering system needs to be continuous across all seven days of the week including Sundays and public holidays.
What happens if an employee is a seven-day shiftworker for part of a year?
Most employers will be familiar with the features of ordinary annual leave:
it accrues progressively throughout a year (s 87(2) FW Act) according to ordinary hours of work;
it accumulates from year to year (s 87(2)); and
it cannot be reduced by the terms of an Award / EBA.
However, two further matters are relevant for managing additional shiftworker annual leave:
The additional week can accrue in a pro rata manner (such that an employee can become entitled to additional annual leave that is less than a week’s additional annual leave) by virtue of section 87(2).
It follows that a worker may be a seven-day shiftworker for part of a year.
Our workplace relations team has prepared an employer guidance note about shift worker annual leave following a recent decision of the Fair Work Commission. Please click on the link below view the PDF.
