Following a recent decision by the Fair Work
Commission (FWC), employers may want to reconsider how they
structure their workplace rosters to avoid their obligation to
grant an additional week of paid leave to certain
The National Employment Standards (NES) provides, as do most
Modern Awards, that a "shiftworker" is entitled to an
additional week of paid annual leave each year.
Under the Fair Work Act 2009 (Cth) (the Act), an
employee is entitled to five weeks of paid annual leave each year
a modern award or enterprise agreement, which describes the
employee as a "shiftworker" for the purposes of the NES,
the employee is not covered by an award or enterprise
is employed in an organisation in which shifts are continuously
rostered 24 hours a day for seven days a week;
is regularly rostered to work those shifts; and
regularly works on Sundays and public holidays.
The Decision: O'Neill v Roy Hill
In the recent matter of O'Neill v Roy Hill Holdings Pty
Ltd, the FWC considered and sought to clarify what an
employee, that is not covered by an award or enterprise agreement,
must do in order to "regularly" work on Sundays and
public holidays and therefore trigger an entitlement to a fifth
week of paid annual leave.
It was determined by the FWC that an employee must work a
minimum of 34 Sundays and six public holidays in a given year to
have the said entitlement to an extra paid week of annual leave
The decision in O'Neill v Roy Hill is significant for
employers who operate in an organisation where shifts are
continuously rostered "24/7". That is because the
decision gives instruction (and a degree of certainty in the
context of employees not covered by an award or enterprise
agreement) for employers in terms of how they may structure their
rosters to minimise costs and boost productivity through avoiding
their obligation to grant an additional week of paid annual leave
to certain employees - that is, by organising their roster system
so that employees work on less than:
34 Sundays in a year; and
six public holidays in a year.
Strictly, the decision in O'Neill v Roy Hill is confined in
scope so as to apply only to employees not covered by an award or
enterprise agreement. However, it is likely that the principle in
this decision will extend more broadly than just to employees not
covered by an award or enterprise agreement.
Employers should ensure they review their rostering systems so
that they can easily identify which employees will be eligible for
an additional week of annual leave.
(O'Neill v Roy Hill Holdings Pty Ltd  FWC
2461 (10 April 2015))
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.Madgwicks is a member
of Meritas, one of the world's largest law firm
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An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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