Court upholds split-shift ban


Court upholds split-shift ban

An award clause prohibiting split shifts applies to both part-time and full-time workers, the Federal Court has decided.

An award clause prohibiting split shifts applies to both part-time and full-time workers, the Federal Court has decided.

Swissport Australia sought declaratory orders that split shifts were not prohibited under the Airline Operations - Ground Staff Award 2010 and that its employees were not entitled to overtime rates or recall penalties for split-shifts. 

Is a split shift one or two shifts?

Clause 28 of the award prohibits employers from requiring employees to work more than one shift in each 24 hours. Swissport attempted to argue this did not apply to part-time shiftworkers. 

The respondent, Australian Municipal Administrative Clerical and Services Union, argued that clause 28 meant employee couldn't be required to work split shifts because each component, or work period, of a split shift is “one shift”.

Swissport, on the other hand, argued that both work components of a split shift were together “one shift.” 

The court noted that the restriction in cl 28.3(d) was likely to have been included because of concerns for the amenity of employees and their health and safety.

Rejected enterprise agreement

Until recently Swissport was known as Aerocare. The company provides ground handling services to airlines at 24 airports in Australia. 

In 2012, Aerocare made an enterprise agreement (Aerocare Collective Agreement 2012) with its employees which was approved in 2013. Clause 9.8 of the 2012 Agreement states that, “The PSE’s ordinary hours of work may be worked in a span (which may not be continuous) on any day of the week.”

In 2017, the Fair Work Commission refused to approve Aerocare’s proposed new enterprise agreement (Aerocare Collective Agreement 2017) which permitted split shifts. In rejecting the 2017 agreement the commissioner decided the employees would not be better off overall, stating “…I am satisfied that the proper construction of the Ground Staff Award is that the ordinary hours of work for any employee are to be worked continuously and there is no provision for split shifts, however described.” Aerocare’s attempt to appeal this decision failed. 

Aerocare then made another agreement, the Aerocare Collective Agreement 2018, which allowed for certain categories of employees, including PSEs, to work “voluntary split shifts.” The outcome for the 2018 Agreement was adjourned, awaiting a decision from the Federal Court.

Split-shifts can’t be required

The court reasoned that PSE’s were classed as part-time shiftworkers for the purposes of the award. It found that the Award applied to part-time shiftworkers because clause 28 simply refers to “employees.” Further, the heading for clause 28.3 refers to “shiftwork.”

The judge concluded that under the award, an employer cannot require an employee to work split shifts.

It was decided that each period of work within a split shift will be one shift, and must, therefore, consist of at least four consecutive hours.

Read the judgment

Swissport Australia Pty Ltd v Australian Municipal Administrative Clerical and Services Union (No 3) [2019] FCA 37 (25 January 2019) 
Post details