What is a “seven day shiftworker”?

Under the National Employment Standards (NES), shiftworkers are entitled to 5 weeks’ annual leave.

The NES defines a shiftworker (in the context of award/agreement free employees) as an employee who (in summary):

• is employed in an enterprise in which shifts are continuously rostered 24 hours a day for 7 days a week; and
• is regularly rostered to work those shifts; and
• regularly works on Sundays and public holidays.

Some modern awards and enterprise agreements also provide for additional entitlements for shiftworkers.

However, who is a shiftworker is often in dispute. Over the years, case law has developed as to when an employee is a shiftworker.

The Fair Work Commission (FWC) recently provided some additional guidance as to who qualifies as a shiftworker in the case of Bega Dairy and Drinks Pty Ltd formerly known as National Foods (Dairy Foods) Limited v United Workers’ Union.

The Case

Bega Dairy and Drinks Pty Ltd (Bega) made an application for the FWC to resolve a dispute under its enterprise agreement, the Lion Dairy & Drinks Wetherill Park Enterprise Agreement 2020 (Agreement).

The dispute arose as to the meaning of the term ‘seven day shiftworker’ under the Agreement, for a particular employee, Mr Wilson, who was represented by the UWU.

The Agreement provided that for Team Members who were ‘seven day shiftworkers’ who were ‘regularly rostered to work on Sundays and public holidays’ were entitled to 190 hours of annual leave, which is an additional week. The term ‘seven day shiftworker’ in the Agreement was interpreted in the context of the previous case law relating to the NES definition of that term.

The Facts

The relevant employee, Mr Wilson commenced employment with Bega in mid-2018 and was permanently employed under a schedule which meant that he worked three night shifts each week, commencing Sunday, Monday and Tuesday. He worked every Sunday throughout the year other than periods of leave, and some major public holidays if Bega decided to close for the period of the public holiday, for example Christmas Day.

The UWU claimed that Mr Wilson was entitled to the additional week of annual leave per year in accordance with the Agreement. Bega disputed this, and contended that he was not entitled to the additional week of annual leave because:

• he was not a ‘seven day shiftworker’; and
• he did not regularly work on public holidays, as per the principles in the previous case law (in particular, the case of O’Neill v Roy Hill Holdings Pty Ltd).

The UWU argued that the term ‘seven day shiftworker’ is not to be read in isolation from the words ‘who regularly works on Sundays and public holidays.’ That is, the UWU submitted that ‘seven-day shiftworker who regularly works on Sundays and public holidays’ refers to an employee who is:

• a ‘shiftworker’;
• part of a shift roster system covering seven days of the week; and
• regularly works on Sundays and public holidays.

The UWU argued that the employee does not themselves necessarily need to be rostered across all seven days to be a ‘seven day shiftworker.’

Findings

Ultimately, the FWC disagreed with the UWU and found that the term ‘seven day shiftworker’ is distinct from the issue of regularly working Sundays and public holidays.

In defining a ‘seven day shiftworker’, the FWC found that this is an employee who:

• has their ordinary hours of work rostered regularly and evenly over seven days a week during the ‘relevant period’ – the focus being upon the individual employee concerned, not the employer’s operations or its rosters; and
• work regularly on Sundays and public holidays during the ‘relevant period’.

In this case, as Mr Wilson’s work hours did not rotate other days (as they were fixed to Sundays, Mondays and Tuesdays), he was not entitled to the additional week of annual leave, even though he regularly worked Sundays.

Implications for Employers

This is a significant case because it highlights the need for employers to really understand the roster and hours that their employees are working, so that if there are entitlements such as in the additional week of annual leave for ‘seven day shiftworkers’ as defined, employees can be remunerated correctly. This case also emphasises that even with certainty of working hours and a ‘seven day shiftwork’ roster, there may not be the additional entitlement for annual leave if the shifts are on the same day for each seven day roster.

If you have any questions about your obligations regarding shiftworkers or generally, please contact HR Legal.

Case reference: Bega Dairy and Drinks Pty Ltd formerly known as National Foods (Dairy Foods) Limited v United Workers’ Union [2024] FWC 171