Shiftworkers, extra week of leave, the NES and agreements

Shiftworkers are generally entitled to an extra week’s annual leave. The National Employment Standards (NES) provides for it and it is also included in modern awards. The NES allows awards to further define what constitutes shiftwork for the purposes of the NES. So for example, in an award the definition might say a shiftworker is someone who works in a 24 hours/seven days a week shift rotation pattern. Or it might define them as someone who regularly works Sundays and public holidays.

When an employer makes an enterprise agreement, the definition of shiftworker has to be in the agreement if shiftworkers are employed in that enterprise. In this decision a full bench of Fair Work Australia has found that the agreement has to keep the same definition as the one in the award that would otherwise apply.

A health care company had defined shiftwork in its enterprise agreement in such a way that none, or very few, of the employees received the extra week. The company believed that in the context of bargaining this was OK, especially since the employees had agreed with it.

However the full bench said that because the NES is the principal driver of the benefit (i.e. the NES is largely immutable), this approach was wrong and the award definition must be carried into the agreement. This means on this issue, in an agreement, it is best to use the same definition for shiftworker as the relevant award does.

Ramsay Health Care Australia Pty Ltd T/A Greenslopes Private Hospital v AWU Queensland [2012] FWAFB 4033 (29 May 2012)