WIGO Practice Note 4 – 3 March2010
Subject: Taking of Annual Leave under the Hydrocarbons Industry (Upstream) Award 2010 & the Mining Industry Award 2010.
Background:Prior to Workchoices it was a common practice in sections of the hydrocarbons industry to buy out annual leave by including payment in annual salaries and providing in agreements that annual leave was taken during an employee’s rostered off period. A typical clause was as follows:
“For employees on continuous shift, the first 1.89 hours x 12 hour shift of the rostered off period is counted as annual leave & public holidays. For employees not on continuous shift, the first 1.67 x 12 hour shift of the rostered off period is counted as annual leave & public holidays. Payment for annual leave days & public holidays has been included in the day rate.”
In reality this was buying out annual leave but was possible because agreements with clauses of this type were still able to pass the NDT and be approved.
The Workchoices amendments introduced the AFPCS which included minimum standards for annual leave which could not be altered by agreements.
Consequently clauses such as the one above were no longer available.
This situation has continued under the FWA and the NES.
Issue: This issue had the potential to severely disrupt the operation of compressed roster in some sectors as it would require employers to provide employees with 4 or 5 weeks physical leave. As the majority of these employees work an even time roster this would necessitate increasing employment numbers to cover this “new” leave requirement. AMMA attempted to address this during the award modernisation process and although unsuccessful was able to achieve the following provision in the modern Hyrdocarbons Industry (Upstream) Award 2010:
“(b) Where an employee works on a remote location or on cycle work made up of ………….. ……………..an employee may reasonable require that:
(i)any periods of annual leave…………….
(ii)The employee take annual leave as provided in the roster cycle (my emphasis)”
It was initially thought that this provision allowed the return to the type of clause used pre workchoices.
This is not the case as this clause only allows an employee to direct an employee to regularly take specified periods of annual leave in each roster cycle.
That is instead of the cycle being 14 days on 14 days off it could be 14 days on 2 days annual leave and 10 days off.
This same clause has now also been inserted into the Mining Industry Award 2010.
In utilising these clauses consultants should understand that if annual leave is included regularly in a roster this must be taken into account for the BOOT.
Agreement provisions need also to be drafted in a way that avoids employees claiming that the roster has been extended and is no longer an even time roster.
AMMA Position:The WIGO process has considered two options in relation to wording as follows: (Note: The roster of 28 on 28 off, if it will include annual leave, is no longer an even time roster but a roster of 33.5 days at work (including travel days & annual leave) and 22.5 days RDOs.
Number 1:
Hours of Work:
Your work schedule will be on a rotational work cycle of 28 days on and 28 days off. Your 28 days off work will be made up of:
-1 day of travel to your home base.
-3.5 days of annual leave
-22.5 days of “rest and recreation” leave
-1 day of travel from your home base to your work site.
Annual Leave:
As required by the Fair Work Act 2009, you are entitled to four weeks annual leave for each year of service. As reflected in clause ______your annual leave is incorporated into your roster cycle.
Number 2:
Hours of Work:
Your work schedule will be on a rotational work cycle of 33.5 work days on, which includes rostered annual leave, and 22.5 days off. Your roster cycle will be made up of:
-1 day of travel from your home base to your work site
-28 days at the work site
-1 day of travel to your home base.
-3.5 days of rostered annual leave
-22.5 days of “rest and recreation” leave.”
It was agreed that neither were suitable and the following wording should be used as a guide:
Hours of Work:
Your work schedule will be on a rotational work cycle of 56 days, which includes rostered days at work, rostered annual leave and rostered days off. Your roster cycle will be made up of:
-1 day of travel from your home base to your work site
-28 days rostered at work
-1 day of travel to your home base.
-3.5 days of rostered annual leave
-22.5 days of “rest and recreation” leave.”
Please Note: The actual break down of the roster will differ from site to site e.g. not all rosters will include travel days.