Who Qualifies as a Shiftworker?

The question of who qualifies as a shiftworker often arises in the club and hospitality industry. In a recent decision by the Fair Work Commission¹, the definition of shiftworker was considered, resulting in some additional guidance. 

However, like most workplace relations-related instances, this definition may change. It’s also important to keep in mind that there is a possibility that the decision could be appealed to a higher court, in which case we could be grappling with yet another definition of shiftworkers in the future. 

Background

Currently, under the Registered and Licensed Clubs Award 2020 the definition of a shiftworker is:

a shiftworker means a 7-day shiftworker who is regularly rostered to work on Sundays and public holidays, and includes a club manager. 

The question around who is (or is not) a shiftworker is important because this category of workers receive an additional week's annual leave in accordance with the National Employment Standards. 

Typically, whether an employee meets the definition of shiftworker depends on the particular context of that employee’s pattern of work. For example, if a Food & Beverage attendant (let’s call her Mary) worked 40 Sundays and most public holidays in a 52-week period, it would have been reasonable to categorise Mary as a shiftworker. 

In the recent case which considered the definition of shiftworker, the Commissioner expressed his frustration that there was no simple or clear definition of it, and there for made changes to provide some clarity. 

New guidance:

Ultimately, to be a shiftworker under the current definition, an employee needs to meet two criteria:

1. They must be a seven-day shift worker; and
2. They must regularly work (i.e. be rostered to work and actually work) both Sundays and Public holidays.

The first criteria above is the new addition. In essence this means that an employee needs to regularly work shifts that rotate across all seven days of the week. 

If an employee has a fixed shift roster and works for example the same five days every week for the relevant period (say Fridays to Tuesday) – they will not meet the first criteria. This is because they have not been required to work across all seven days of the week. 

Examples

If we take the example of the Food & Beverage attendant, Mary, above who worked 40 Sundays and most public holidays and add in the fact that Mary worked the exact same roster for the past year — e.g. she worked every Sunday, Monday, Tuesday and Friday – Mary would not be a seven-day shiftworker. Mary did not work across all seven days of the week. Therefore, she would not be entitled to an additional week's annual leave. 

However, if in the same example, Mary performed the above roster for four months, and then changed rosters for the next four months to work every Sunday, Wednesday, Thursday and Saturday — then she would be a shift worker because Mary:

1. worked across a seven-day roster; and
2. regularly worked Sundays and public holidays. 

What to do now?

In our view, this new guidance may reduce the number of employees who meet the definition of shiftworker. 

However, before revoking a 5-week annual leave entitlement from an employee, please reach out to the ClubsNSW WR team to discuss their specific circumstances. There may be other implications we need to consider. 

Also, as noted above please remember that this decision is subject to appeal. We will let you know if and when that happens. 

For further advice, clubs can contact the ClubsNSW WR Team to discuss their specific circumstances.