Working every Sunday doesn’t mean you get an extra holiday – clarifying the definition of 'seven day shiftworker'

The Fair Work Commission recently found that dairy workers are not 'seven day shiftworkers' even though they work on weekends, if they do not work regular shifts rotating across all seven days.

This decision, Bega Dairy and Drinks Pty Ltd¹, is important, because in clarifying the ambiguous meaning of 'seven day shiftworker' it also clarifies who is entitled to an additional week of annual leave under the National Employment Standards (NES).

Background

The Commission considered a dispute under the Lion Dairy & Drinks Wetherill Park Enterprise Agreement 2020 (Agreement) involving a Bega Dairy and Drinks Pty Ltd (BDD) employee, Ory Wilson. Mr Wilson worked at the dairy processing site in New South Wales where flavoured milks and bespoke white milk are produced.  
Mr Wilson was permanently employed to work on Sunday, Monday and Tuesday each week, and the United Worker's Union argued on his behalf that he was entitled to an additional week of annual leave under the NES because he fitted the definition of a 'seven day shiftworker'. This term was defined in the Agreement (similarly worded to many modern awards) as a 'seven day shiftworker who is regularly rostered to work on Sundays and public holidays'.  

While BDD contended that Mr Wilson did not fit the description of a 'seven day shiftworker', the Union maintained that the term 'seven day shiftworker' must not be read in isolation from the words 'who is regularly rostered to work on Sundays and public holidays'.

Decision

The Commission found that a 'seven day shiftworker' (who qualifies for additional annual leave) is a full-time or part-time employee:

• whose ordinary hours of work are rostered regularly and evenly over seven days of a week during the relevant period; and
• who works regularly on Sundays and public holidays during the relevant period.

Accordingly, Mr Wilson was not entitled to the additional annual leave, as his regular shifts did not rotate across the seven days of the week but rather were fixed to Sunday, Monday and Tuesday each week.

Lessons

When assessing an employee's definition as a shiftworker, employers must consider the applicable agreement and/or instrument that applies to their employment, and the shifts that the individual employee actually works, not just the company's operations or rosters.

If you have any questions or would like to know more, please contact our Employment, Workplace relations, Safety team.

¹ Bega Dairy and Drinks Pty Ltd formerly known as National Foods (Dairy Foods) Limited v United Workers' Union [2024] FWC 171

Authors

Jacquie Seemann | Partner | +61 2 9020 5757 | jseemann@tglaw.com.au

Jessica Berghofer | Senior Associate | +61 7 3338 7928 | jberghofer@tglaw.com.au

Joseph Butcher | Law Graduate

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