Harmers News Alert

Harmers News Alert

Authors: Justin Pen & Amelia Dowey

Employees cannot be required to work “split-shifts” under Airline Award: Federal Court of Australia

26 February 2019

The Federal Court of Australia has ruled that an employer cannot require an employee to work a “split-shift” under the Airline Operations – Ground Staff Award 2010 (“Award”). In doing so, the Federal Court has also held that rostering an employee on for more than one period of paid work within a 24-hour period impermissibly constituted a split-shift under the Award.

In Swissport v Australian Municipal Administrative Clerical and Services Union (No 3) [2019] FCA 37, Aerocare Flight Support Pty Ltd (“Aerocare”), now trading as Swissport Australia Pty Ltd, applied for court declarations that, among other things, rostering on an employee for a split-shift was permitted under the Award.

Relevantly, clause 28.3(d) of the Award stated that:

“Except at the regular change-over of shifts, an employee must not be required to work more than one shift in each 24 hours.”

The Court heard that Aerocare’s employees would regularly be rostered on for two, and on rare occasions three, 3-hour or 4-hour paid periods of work, with an intervening period of non-work, across a single day. The Court also heard that over 80 per cent of Aerocare’s workforce operated on this basis.

Aerocare claimed that, taken together, these separate periods of work totalled “one shift” under the Award and submitted that clause 28.3(d) defined a “shift” as being “a single rostered shift with one identified start time and one identified finish time”. Aerocare claimed that a split-shift should be regarded as “one shift” because it fit within its proposed definition.

In contrast, the Australian Municipal Administrative Clerical and Services Union (“Union”) argued that a “shift” referred to a period of work, which was not broken by any unpaid break other than a meal break. Accordingly, the Union submitted that a “split-shift” impermissibly amounted to two or more “shifts” under the Award.

Justice Rangiah rejected Aerocare’s proposed interpretation of clause 28.3(d), stating that an employer could simply deem two shifts to be “one shift”, with reference to the following counterfactual:

If for example, an employer creates a roster which records that an employee is working a shift from 7 am to 7 pm, but that period incorporates unpaid non-working periods from 11 am to 2 pm and again from 3 pm to 5 pm, Aerocare’s submission would be that this is “one shift”. On the other hand, if the roster sets out three sets of starting and finishing times, a different consequence would ensue.

Justice Rangiah held that accepting Aerocare’s proposed interpretation “would reduce the concept of “one shift” in cl 28.3(d) to a matter of form over substance” and further acknowledged that doing so could erode the protective purpose of the provision – which had been formulated to preserve the amenity and health and safety of part-time and full-time shiftworkers.

Due to the form of relief sought, Justice Rangiah declined to decide if overtime and penalty rates applied to the second period of work in a split-shift.

The Court’s decision has implications for employees covered under the Airline Operations – Ground Staff Award 2010 and could also impact airline industry employers that have enterprise agreements that facilitate split-shift