Within many modern awards 7 Day Shiftworkers are entitled to an additional week annual leave as additional compensation for consistently unsociable hours. So what is a 7 Day Shiftworker? This is a question that has plauged employers and the courts for years, being ambiguous enough that the classification or not of an employee as a 7 Day Shiftworker is challenged regularly. As a result of a recent challenge the Fair Work Commission has sought to bring a little clarity to this murky question.
What is a 7 Day Shiftworker?
Many Awards, including the awards that cover the fuel industry.
Vehicle Repair, Service and Retail Award 2020
29.11 Seven day shiftworkers
For the purpose of the additional week of annual leave provided for in section 87(1)(b) of the Act, a shiftworker is a 7 day shiftworker who is regularly rostered to work on Sundays and public holidays.
Road Transport and Distribution Award 2020
24.3 Additional leave for certain shiftworkers
A shiftworker, for the purposes of the additional week’s leave referred to in section 87(1)(b) of the Act, is a 7 day shiftworker who is regularly rostered to work on Sundays and public holidays.
Clerks Private Sector Award 2020
32.2 Additional paid annual leave for certain shiftworkers
(a) Clause 32.2 applies to an employee who is a shiftworker regularly rostered to work on Sundays and public holidays in a business in which shifts are continuously rostered 24 hours a day for 7 days a week.
(b) The employee is a shiftworker for the purposes of the NES (entitlement to an additional week of paid annual leave).
While the reference to 7 Day Shiftworkers exists in these awards, there is no ‘definition’ of the term, so there is often contention and confusion of what makes a Shiftworker a 7 Day Shiftworker.
There are two elements that are much chewed over in the debate;
- Are all 7 days important?
- What does Regularly mean?
And which is the first to consider. This latest case offers employers a rare sliver of clarity on this murky area of compliance.
What is Regularly?
“The provision for the additional week annual leave comes down to an assessment of how often does an employee have to work on a Sunday for it to count as ‘regularly'”, explains ACAPMAs Elisha Radwanowski.
“Is one Sunday a month ‘regularly’? Or every second Sunday? What about every third Sunday? Members have asked these questions for years, and the patchy decisions in the case law makes giving a clear answer very difficult, leading to compliance confusion”, continues Elisha.
In a case at the Fair Work Commission this year Deputy President Boyce has expressed frustration at the lack of clarity around the definition of a 7 Day Shiftworker and has offered his own clarification after an extensive legislative review.
In addressing a dispute between the employer and the union over an employees entitlement to the ‘additional week annual leave’ DP Boyce was asked to determine if it is only the work on the Sunday that is the determining factor or if there was a need for the employee to work a rotating roster across all 7 days of the week.
“In this case the employee worked a regular roster working Sunday, Monday and Tuesday nights. The union argued that this meant that the employee was working regular Sundays and should be entitled to the additional week annual leave. While the business argued that because the employee did not work any of the other 7 days the additional week did not apply”, explained Elisha.
The union argued that it can be taken from previous case law that refer to seven day shiftworkers, that to be a seven day shiftworker, an employee must be firstly, a shiftworker, and secondly, work a particular number of Sundays and public holidays. Arguing in other words, it does not matter if a seven day shiftworker works fixed shifts, or shifts that rotate across seven days of the week.
After a close examination of case history, however, DP Boyce found that he had “no reason” to not follow the AIRC full bench’s decision in Media, Entertainment and Arts Alliance [MEAA] and Theatrical Employees (Sydney Convention and Exhibition Centre) Award 1989, “which found a minimum and immutable requirement for a seven day shiftworker to actually work 34 Sunday shifts and 6 public holidays per annum to satisfy the definition of ‘regularly’ working Sunday and public holidays”.
“This reading of working 34 Sundays and 6 public holidays before the term ‘regularly‘ kicks in, is clear and welcome, but DP Boyce outlined in the same breath that this number will change depending on the industry, employment history and employment status…so back to the murky waters then”, Elisha explained.
“In issuing the decision DP Boyce left the door open as to what is ‘regularly’ when it comes to working on a Sunday, so there remains some ambiguity there, but he has very clearly defined the other half of the question, which is the work over the other 7 days of the week”, continued Elisha.
Deputy President Boyce found that while a seven day shiftworker did not need to be engaged on a 24/7 ‘continuous’ roster, they did need to work “on each of the seven days of the week. Be they full time or part time . . . the relevant individual employee . . . needs to regularly work shifts that rotate across all seven days of the week during the relevant period,” Boyce said.
“A fixed shift roster . . . is not consistent (i.e. wholly inconsistent) with the definition or description of a seven day shiftworker under the agreement”, DP Boyce continued before concluding that in this case then the worker, while working every Sunday, was not working the other days of the week and thus was not a 7 Day Shiftworker.
“For now this adds clarity, but this particular area of employment compliance has swung back and forth with cases more than most, so it is an area to watch”, concluded Elisha.
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Elisha Radwanowski BCom(HRM & IR)