Tuesday, 23 January, 2018
Ellen Davis, Associate
When we think of annual leave we often think of four weeks as the norm, as well as an additional week for certain types of shiftwork. But in some cases, the base entitlement is higher, and it is also necessary to look carefully at which employees qualify under the shiftwork provisions.
For example, employees covered by the Nurses Award 2010 are entitled to five weeks’ annual leave, and those who are engaged in shiftwork are entitled to six weeks’ annual leave.
The Nurses Award
While the Nurses Award, like most other modern awards, adopts the National Employment Standards, it goes on to provide additional annual leave entitlements to employees covered by the Award.
Clause 31.1 of the Award provides:
a) In addition to the entitlements in the NES, an employee is entitled to an additional week of annual leave on the same terms and conditions.
b) For the purpose of the additional weeks annual leave provided by the NES, a shiftworker is defined as an employee who:
i. is regularly rostered over seven days of the week; and
ii. regularly works on weekends.
c) To avoid any doubt, this means that an employee who is not a shiftworker for the purposes of clause 31.1(b) above is entitled to five weeks of paid annual leave for each year of service with their employer, and an employee who is a shiftworker for the purposes of clause 31.1(b) above is entitled to six weeks of paid annual leave for each year of service with their employer.
Hence, an award or agreement may provide a more generous base entitlement than the NES, and define shiftwork for the purposes of that award or agreement in a particular way.
What does “regularly rostered” or “regularly works” mean?
There are authorities spanning through the different industrial tribunals and commissions which provide that an employee “regularly works Sundays and public holidays if they have worked at least 34 Sundays and 6 public holidays in a year”.1 While this decision was in the context of award and agreement free employment and the Full Bench has not yet had the opportunity to confirm that the above principle applies universally to all modern awards, it is expected that the Fair Work Commission would be guided by, and have little reason to depart from, the above principle in determining any dispute about the interpretation of “regularly works” or “regularly rostered”.
In the context of the Nurses Award, it would appear from the use of the words “regularly works weekends” that Saturday shifts would be included in the quota of 34 Sundays.