The Fair Work Ombudsman provides general advice about workplace rights and responsibilities under Australia’s workplace laws. We can’t provide legal advice, advice about employment contracts or make determinations regarding the law.

If you have questions about your employment contract, or how your employment contract impacts your entitlements, you should seek independent advice.

Some employees doing shiftwork get an extra week of annual leave each year. This is an entitlement from the National Employment Standards (NES).

Shiftworkers covered by an award or agreement

For an employee to get an extra week of annual leave, their award or agreement must define or describe them as a shiftworker for the purpose of the NES.

Below are some examples of awards providing an extra week of annual leave for the purpose of the NES that explain a shiftworker and shiftwork in different ways. There are links to these awards in the references section below.

Example: Nurses Award

A shiftworker, for the purposes of the additional week’s annual leave provided by the NES, is an employee who:

1. is regularly rostered over 7 days of the week; and
2. regularly works on weekends.

(see clause 22.2(b) Quantum of annual leave.)

Example: Social, Community, Home Care and Disability Services Industry Award

For the purpose of the NES, a shiftworker is:

1. an employee who works for more than 4 ordinary hours on 10 or more weekends during the yearly period in respect of which their annual leave accrues; or
2. an employee who works at least eight 24-hour care shifts in accordance with clause 25.8 during the yearly period in respect of which their annual leave accrues; and

is entitled to an additional week’s annual leave on the same terms and conditions.

(see clause 31.2 Quantum of Leave and clause 25.8 24 hour care.)

Example: Manufacturing Award

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.

(see clause 34.2 Definition of shiftworker.)

Check your award or agreement to find out what applies to you.

If an award or agreement doesn’t have a definition or description of shiftworker for the purpose of the NES, an employee covered by that award or agreement doesn’t get the extra week of annual leave under the NES.

If no award or agreement applies

An award and agreement free employee gets 5 weeks of annual leave under the NES if all of the following apply:

• their workplace has shifts that are continuously rostered 24 hours a day for 7 days a week (‘continuous shift roster’)
• they’re regularly rostered to work those shifts
• they regularly work on Sundays and public holidays.

What does ‘regularly rostered to work those shifts’ mean?

It means the employee has to be rostered to work on the shifts that are part of the continuous shift roster.

However, the employee doesn’t have to be working on all the shifts that are on the continuous shift roster.

Example: Working shifts that are part of a continuous shift roster

Dara and Glen are award and agreement free employees.  Their workplace operates a continuous shift roster.

Their section has a shift roster that continues 24 hours a day, 7 days a week. Dara is always rostered on night shift and Glen is always rostered on a day shift on the continuous shift roster. Dara and Glen regularly work on Sundays and public holidays.

Dara and Glen’s annual leave accumulates based on 5 weeks per year.

This is because their shifts are part of the continuous shift roster.

Adam also works regularly on Sundays and public holidays in another section of the same business. Adam’s section operates 7 days per week, but only has one shift each day.

Adam’s annual leave accumulates based on 4 weeks per year.

Adam’s workplace operates a continuous shift roster, but his section doesn’t, and he’s not rostered to work shifts that are part of that roster.

What does ‘regularly works on Sundays and public holidays’ mean?

An award and agreement free employee will only get the extra week of annual leave under the NES when they regularly work on Sundays and public holidays. Some awards or agreements also use this term. Where this term is used in an award or agreement it needs to be considered in the context of the provisions of that award or agreement. An employee’s individual circumstances may also be relevant, including:

• the industry the business operates in
• the employee’s pattern of work
• rostering arrangements
• the terms and conditions of their employment.

Caution:

In considering whether an employee regularly works Sundays and public holidays the threshold of 34 Sundays and 6 public holidays is not a universally applicable standard (see below). The following cases are provided as examples only, you may need to seek your own independent advice on what ‘regular’ is based on your circumstances.

Case studies – regularly working Sundays and public holidays 

O’Neill v Roy Hill Holdings Pty Ltd [2015] FWC 2461 (Roy Hill)

The Fair Work Commission (FWC) determined that an award and agreement free employee working a continuous shift roster in the mining industry ‘regularly works on Sundays and public holidays’ if they have worked at least 34 Sundays and 6 public holidays in a year.

Four yearly review of modern awards – Registered and Licensed Clubs Award 2010 [2020] FWCFB 4762

The Clubs Award defines a shiftworker for the purpose of the additional week of annual leave under the NES to mean ‘a 7 day shiftworker who is regularly rostered to work on Sundays and public holidays…’

A proposal was made during the four yearly review of modern awards to include “(34 Sundays and 6 Public Holidays)” at the end of the above definition.

A full bench of the FWC rejected the proposal to include the threshold in Roy Hill.

The FWC’s reasons included:

• the Roy Hill threshold is calculated on the continuous shift work system of the manufacturing and engineering industry, which is atypical in the club industry.
• the pattern of shiftwork in the clubs industry is not usually spread evenly across the 7 days of the week
• the shift work system in the Clubs Award isn’t continuous, involving day, afternoon, and night shifts
• staffing requirements of the clubs industry means that employees:
  • are more likely to be rostered towards the end of the week and on weekends
  • would generally work more Sundays than Mondays, a day that many public holidays fall
  • are likely to work more than 34 Sundays but fewer than 6 public holidays.

Shiftworkers working part of a year

If an employee works for part of a year as a shiftworker and is entitled to an extra week of annual leave under the NES, they get annual leave based on 5 weeks per year for that part of the year.

Example: Working shifts for part of the year

Sue was a full-time shiftworker entitled to an additional week of annual leave per year under the NES.

After 6 months, Sue transferred to another section and stopped working shifts for 6 months.

For the first 6 months, Sue’s annual leave accumulated based on 5 weeks a year.

For the second 6 months, Sue’s annual leave accumulated based on 4 weeks a year, because she wasn’t a shiftworker.

Sue accrues a total of 4.5 weeks of annual leave for the year.