Fair Work Act 2009

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:

4 weeks of paid annual leave; or

5 weeks of paid annual leave, if:

a modern award applies to the employee and defines or describes the employee as a shiftworker for the purposes of the National Employment Standards; or

an enterprise agreement applies to the employee and defines or describes the employee as a shiftworker for the purposes of the National Employment Standards; or

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

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 shiftworker for the purposes of the National Employment Standards.

An employee’s entitlement to paid annual leave accrues progressively during a year of service (other than periods of employment as a casual employee of the employer) according to the employee’s ordinary hours of work, and accumulates from year to year.

If an employee’s employment ends during what would otherwise have been a year of service, the employee accrues paid annual leave up to when the employment ends.

An award/agreement free employee qualifies for the shiftworker annual leave entitlement if:

the employee:

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; or

the employee is in a class of employees prescribed by the regulations as shiftworkers for the purposes of the National Employment Standards.

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

Without limiting the way in which a class may be described for the purposes of paragraph (3)(b) or subsection (4), the class may be described by reference to one or more of the following:

a particular industry or part of an industry;

a particular kind of work;

a particular type of employment.