This information is about accessing the sixth annual leave week entitlement in the 2020-24 public sector nurses and midwives EBA if you work weekends.
Registered nurses and midwives (and in recent EBAs enrolled nurses) are entitled to a minimum of five weeks (190 hours for full time employees) of annual leave per year of service. In certain circumstances you could become entitled to an additional (or sixth) week (38 hours for full-time employees) of annual leave.
The circumstances for full-time employees were reasonably clear, if you worked on weekdays and weekends throughout the qualifying year of service you were entitled to the sixth week of annual leave (the old test).
It became less clear if you were full time and worked some weekends during the year of service but not consistently across the year. Disputes arose with employers about this during the life of the 2016-2020 EBA, despite the words having not changed in that part of the clause since the 1980s.
These disputes about the old test centred on whether there was a minimum number of weekends an employee needed to work, ANMF’s long held view was there was not. If you, for example, changed jobs and became, or stopped being, a weekend worker for part of the year then a separate clause provided that would receive half a day’s annual leave for each month in which you worked weekends, up to a maximum of 10 half days, i.e. – five days of annual leave.
If you were part time, the entitlement was even more controversial with employers, many claimed that being full time was a pre-requisite, and hence no part time employee could ever be eligible. The discriminatory nature of this proposition, in a predominantly female part time workforce, was used by ANMF to argue for the clause to change
What changed in the 2020-2024 EBA?
From 1 July 2022:
- a full time employee who works ‘ordinary hours’ on at least ten weekends in a year, is clearly entitled to the sixth week of annual leave.
- a full employee who works ‘ordinary hours’ on less than ten weekends in a year is entitled to 3.8 hours of additional annual leave for each weekend worked, to a maximum of 38 hours.
I work part time, am I eligible for a sixth week of leave?
Yes, annual leave (including the sixth week) will accrue progressively to a part-time employee on a pro rata basis.
Examples of pro rata accrual of additional annual leave for part time employees:
- a part-time employee who works 16 hours in a week, and works 10 weekends in a year accrues an extra week of annual leave at 16 hours, i.e. a total of five weeks at 16 hours per week (80 hours) plus another 16 hours for a total of 96 hours annual leave
- a part-time employee who works 16 hours a week but also works additional ordinary hours from time to time, and works 10 weekends in a year, accrues an extra week of annual leave at their average hours over the accrual period, i.e. a total of five weeks at their average hours per week e.g. 24 hours (96 hours) plus another 24 hours for a total of 120 hours annual leave
- part-time employee who works some weekends, but not 10. Rather than accruing 3.8 hours per occasion to a maximum of 38 hours as a full-time employee would, the part-time employee is entitled to the pro-rata equivalent of 3.8 hours per occasion – in the case of an employee working or averaging 24 hours per week, that employee would receive 2.4 hours of annual leave per occasion to a maximum of 24 hours additional leave during the accrual period.
I used to get six weeks annual leave, now my employer is saying I don’t meet the new test
If an employee is a weekend worker as at 30 June 2022 (or would be a weekend worker but for the operation of a flexible working arrangement or an absence from work on parental leave), the sixth week of annual leave will continue to apply to that employee after 1 July 2022 unless or until:
- the new arrangement applicable on and from 1 July 2022 is more beneficial for the employee
- the employee changes employers
- the employee requests (and the employer agrees) to move the employee from full-time to part-time employment (other than as part of a flexible working arrangement, family violence arrangement or reduced hours on return from parental leave); or
- the employee initiates a change that means they no longer perform weekend work. For example:
- where an employee requests a change to a different role that does not require the performance of weekend work
- where an employee requests to move from a rotating or similar roster that includes weekends, to fixed shifts that do not include weekend work; or
- where an employee (at their request) relocates to a ward with a different system of work (for the removal of doubt, this does not include where an employee requests to move to a ward with the same general system of work).