Particular kinds of employees

See Fair Work Act 2009 ss.87(1)(b) and 196

As part of the NES, certain employees (shiftworkers) are entitled to an additional week of annual leave if:

• a modern award applies to the employee and defines or describes the employee as a shiftworker for the purposes of the NES, or
• an enterprise agreement applies to the employee and defines or describes the employee as a shiftworker for the purposes of the NES, or
• the employee is an award or agreement free employee who meets the definition of shiftworker in section 87(3) of the Fair Work Act.

If the proposed enterprise agreement will cover an employee who:

• is covered by a modern award, and
• is defined or described in that award as a shiftworker for the purposes of the NES;

the Fair Work Commission cannot approve the enterprise agreement unless it is satisfied that the agreement also defines or describes the employee as a shiftworker for the purposes of the NES.

This has the effect that, if under a modern award an employee would be entitled to the additional week of annual leave, the employee must also be entitled to that additional week under the enterprise agreement.

The types of employees who are shiftworkers for NES purposes may differ depending on the modern award that covers the employee. Care should be taken to ensure that any employee covered by the enterprise agreement who falls within the relevant award definition of shiftworker for NES purposes is defined or described in the enterprise agreement as a shiftworker for the purposes of the NES.

See Fair Work Act ss.21, 197 and 198

A pieceworker is generally an employee who is paid a rate of pay calculated by reference to the employee's output (for example the number of articles produced, delivered or sold, kilometres travelled or the number of tasks performed), rather than a rate set by reference to a period of time worked.

There are additional approval requirements for an enterprise agreement covering an employee who is defined or described as a pieceworker in the enterprise agreement and/or the modern award. This is because a pieceworker's entitlements under the NES (for example payment for annual leave) are affected by the base rate of pay specified in the enterprise agreement or modern award.[2]

Pieceworkers – where an employee is a pieceworker under the award and the agreement

Where an employee is a pieceworker under both the modern award covering the employee and the enterprise agreement, the Fair Work Act does not contain any additional approval requirements for the enterprise agreement. This is because the employee's base rate of pay under the agreement must not be less than the base rate payable to the employee under the relevant modern award.[3]

Pieceworkers – where an employee is a pieceworker under the agreement

An enterprise agreement can include a term defining or describing an employee as a pieceworker for the purposes of the Fair Work Act (including the NES), even where a modern award covering the employee does not define or describe the employee as a pieceworker. However, before approving such an agreement, the Commission must be satisfied that each pieceworker does not suffer a detriment to his or her entitlements under the NES.

Pieceworkers – where an employee is a pieceworker under the modern award

On the other hand, where an employee is defined or described as a pieceworker under the relevant modern award covering the employee but the enterprise agreement does not define or describe the employee as a pieceworker, the Commission must be satisfied that the omission of the pieceworker term does not cause the employee to suffer a detriment to his or her entitlements under the NES.

No detriment test

The no detriment test ensures that a pieceworker is entitled to the minimum entitlements provided by the NES.

Related information

• Base rate of pay

See Fair Work Act s.199

There are also additional approval requirements in relation to an enterprise agreement that covers school-based apprentices and/or school-based trainees.

Where a modern award covers the employees and provides for a loading to be paid to school-based apprentices or school-based trainees in lieu of paid annual leave, paid personal/carer's leave and/or public holidays, the enterprise agreement may also provide for paid loadings in respect of that matter (or those matters).

Where the enterprise agreement provides for a loading in lieu of paid annual leave, paid personal/carer's leave and/or public holidays, the Commission must be satisfied that the amount or rate of the loading is not detrimental to the employee when compared to the amount or rate of the loading provided under the award.

See Fair Work Act ss.12 and 200

An outworker is an employee who performs work at residential premises or at other premises that would not conventionally be regarded as being business premises.

There are also additional approval requirements in relation to an enterprise agreement that covers employees who are outworkers if the employees are also covered by a modern award that includes outworker terms.

The Commission must be satisfied that the agreement includes outworker terms and that those terms are not detrimental to the employees in any respect when compared to the outworker terms of the modern award.