The Australian Nursing and Midwifery Federation (ANMF) is calling for major improvements to the National Employment Standards (NES), including 10 days paid reproductive health leave and an expanded definition of shift workers to ensure more employees working irregular hours are fairly compensated.
A federal parliamentary inquiry into the NES, which sets the minimum employment entitlements for all workers, was launched in November last year. Submissions have now been lodged, and public hearings are scheduled to start soon.
Paid reproductive health leave
The NES guarantees personal and carer’s leave but does not cover reproductive health leave despite the widespread impact of reproductive health issues on workers, couples and families. Reproductive health encompasses a range of health matters including menstruation, pregnancy, contraception, miscarriage, perimenopause, and IVF and fertility treatment.
Unions including the ANMF are pushing for 10 days of paid reproductive health leave for all workers to manage any health issue linked to reproduction.
Some workers have already secured paid reproductive health leave through union-negotiated collective agreements. For example, Victorian and ACT workers can access up to five days of reproductive health leave each year, while Queensland public sector workers are entitled to 10 days per year. But most Australians have no dedicated right to take time off for their reproductive health needs.
“Reproductive health issues affect workers at all stages of life, particularly women,” says ANMF Federal Industrial Officer, Paul Yiallouros.
“Many would be using their sick leave or other forms of leave to manage menstrual pain. Pregnant employees needing to attend appointments throughout their pregnancy may need to take time off to attend such appointments that may clash with their own working hours.
“The symptoms or perimenopause and menopause can be long-term and persistent. Many workers experiencing these symptoms will similarly utilise existing leave entitlements where possible or might leave the workforce earlier than would have been necessary, had they been adequately supported to continue in their roles.”
Expanded definition of shift worker
Under the NES, employees considered shift workers are entitled to 5 weeks annual leave.
To get this, they need to demonstrate that their workplace operates on a 24/7 basis; that they regularly work across all shifts; and that they regularly work Sundays and public holidays.
In its submission to the inquiry, however, the ANMF argues that the current definition of a shift workers is far too narrow, meaning that many workers who work irregular shift patterns fall short of the definition and miss out on an additional week of leave. Shift worker provisions in the Nurses Award are also too restrictive, the union says.
For example, an employee may miss out because they work all sorts of shifts but not public holidays, or work exclusively night shifts, and not day shifts.
“Shift workers get an additional week of annual leave, but so few workers meet that strict definition even if they work regularly outside 9-5 Mon-Fri hours,” explains Mr Yiallouros.
“For nurses and midwives specifically under the Nurses Award, the requirement is that they must have been regularly rostered over 7 days of the week, and regularly worked weekends. A nurse who works Tuesday to Sunday, including afternoon and nightshifts, but has Monday as their guaranteed day off would miss out on additional annual leave. This would be despite the fact that they could work very late hours and have always worked weekends. The problem is that “irregular shifts” do not guarantee that a worker will meet the shift worker definition and receive the additional week of annual leave.”
The ANMF’s proposal to expand the shift worker definition would see any employee whose ordinary hours of work extend beyond 6am-6pm Mon-Fri automatically be considered a shift worker. Currently, the definition under the Nurses Award requires an assessment of whether someone regularly works across all 7 days of the week and regularly works weekends.
“Our hope is that workers would be adequately rewarded for having made themselves available at irregular hours,” Mr Yiallouros says.
“Alternatively, employers would be cautious about issuing contracts that allow them to roster employees at all times of day/days of the week when not actually required in practice.”
Annual leave
The NES currently provides a basic entitlement of 4 weeks annual leave for all employees, other than casuals, and 5 weeks per year for employees considered ‘shift workers’.
The Australian Council of Trade Unions (ACTU) is pursuing an increase in annual leave entitlements from 4 to 5 weeks per year, and from 5 to 6 weeks for regular shift workers, in what would be the first increase in the minimum standard since the mid-1970s.
Under the Nurses Award 2020, ANMF members are already entitled to 5 weeks of annual leave, while shift workers receive 6. The ANMF believes that any increase to annual leave under the NES could reshape the bargaining landscape for future enterprise agreements, potentially creating opportunities for nurses and midwives to secure additional compensation.
“An increase to the annual leave entitlement in the NES would open an opportunity for the ANMF to vary the Nurses Award to adjust the annual leave entitlement,” Mr Yiallouros says.
Other changes proposed by the ANMF include the ability for workers to change or cancel leave requests with greater ease, and leave entitlements to be paid at full rates, rather than base rates.
Roster justice
Minimum standards around rostering do not exist anywhere in the NES – they are more broadly featured in modern awards and enterprise agreements.
The ANMF jointly supports the Australian Services Union and the Shop Distributive & Allied Employees’ Association proposal for basic rostering justice provisions to be included in the NES. This includes an employer providing an employee (other than a casual employee) predictable hours of work, and overtime payments payable for all work performed outside the regular pattern of work.
“A rostering provision in the NES would set a baseline for rostering provisions for workers under the ACT,” Mr Yiallouros says.
“For professions like nursing and midwifery, where most workers are part-time or casual and work across a rostering system that changes regularly, it should be the case that rosters are somewhat predictable.”
Personal/carer’s leave
The NES allows employees to use personal/carer’s leave in two situations: where the employee is not fit for work because of personal illness or injury, or to provide care or support to a family member who requires care or support because of illness, injury or unexpected emergency.
The ANMF is urging the Inquiry to consider allowing employees to access leave for the purpose of attending appointments to maintain good health, proposing an increase in overall leave, and a separate paid leave entitlement to allow employees to attend medical and other healthcare appointments.
“The fact that personal/carer’s leave cannot be used for health issues where the employee is not unfit for work is problematic because it prevents workers from using this leave to schedule appointments to maintain good health (preventative healthcare, such as dental, physio, etc.),” says Mr Yiallouros.
“Nursing and midwifery are physically and mentally demanding jobs that require those workers to be healthy so as to support the health needs of their patients.”
Cultural and kinship leave
While many workplaces in Australia provide leave arrangements to meet the cultural needs of Aboriginal and Torres Strait Islander people, the absence of such a provision in the NES means that such an entitlement cannot be accessed by all First Nations workers in workplaces.
The ANMF strongly supports the ACTU’s call to create a new entitlement in the NES for cultural and kinship leave.
