Entitlement to annual leave

Hi Bare Bones Consulting, one of our employees has informed us her friend gets 5 weeks annual leave. Isn’t the entitlement to annual leave 4 weeks?

Hi there and thanks for your question…it’s a good one.

Short answer? It’s possible your employee’s friend may get 5 weeks if she’s classified as a “shift worker”. Some shift workers get 5 weeks of annual leave a year instead of 4 weeks. This is an entitlement from the National Employment Standards (NES).

Full nerd answer? Head to section 87 of the Fair Work Act. This contains detailed information on the entitlement to annual leave across all classifications of employees so you can determine if 5 weeks annual leave might apply to some or all employees in your workplace. Strapped in? Let’s go:

Section 87 Entitlement to Annual Leave

Amount of leave

(1) For each year of service with an employer (other than periods of employment as a casual employee of the employer), an employee is entitled to:

(a) 4 weeks of paid annual leave; or

(b) 5 weeks of paid annual leave, if:

(i) a modern award applies to the employee and defines or describes the employee as a shift worker for the purposes of the National Employment Standards; or

(ii) an enterprise agreement applies to the employee and defines or describes the employee as a shift worker for the purposes of the National Employment Standards; or

(iii) the employee qualifies for the shift worker annual leave entitlement under subsection (3) (this relates to award/agreement free employees).

Note: Section 196 affects whether the FWC may approve an enterprise agreement covering an employee, if the employee is covered by a modern award that is in operation and defines or describes the employee as a shift worker for the purposes of the National Employment Standards.

Award/agreement free employees who qualify for the shift worker entitlement

(3) An award/agreement free employee qualifies for the shift worker annual leave entitlement if:

(a) the employee:

(i) is employed in an enterprise in which shifts are continuously rostered 24 hours a day for 7 days a week; and

(ii) is regularly rostered to work those shifts; and

(iii) regularly works on Sundays and public holidays; or

(b) the employee is in a class of employees prescribed by the regulations as shift workers for the purposes of the National Employment Standards.

(4) However, an employee referred to in subsection (3) does not qualify for the shift worker annual leave entitlement if the employee is in a class of employees prescribed by the regulations as not being qualified for that entitlement.

Got all that? For a shift worker to get 5 weeks of annual leave, their award or agreement must contain a definition of shift worker for the purpose of the NES. If their award doesn’t have a definition of shift worker for the purpose of the NES, a shift worker doesn’t get 5 weeks of annual leave.

Shift workers not covered by an award or agreement gets 5 weeks of annual leave if:

• their workplace has shifts that are continuously rostered 24/7
• they are regularly rostered to work those shifts
• they regularly work on Sundays and public holidays.

Laws around employment and who’s entitled to what can be challenging to navigate, particularly when you don’t have an inhouse HR person. The answers to your questions are out there if you know where to look but who has time for that?

Having someone in your corner who knows HR and how these laws applies in your workplace can make things easier. Like to know more? Give Bare Bones Consulting a call.