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Shiftwork and Complications

03 Jul Shiftwork and Complications

Posted at 19:15h in Law by

Introduction

The shiftwork provisions in the Building and Construction General On-Site Award 2020 (Award) for casual employees can be complicated.

The Award covers employers throughout Australia in the on-site building, engineering and civil construction industry and their employees in the classifications within the Award. Many employees covered by the Award are engaged on a casual basis by employers.

Depending on the system of work, whether a casual employee is performing “shiftwork” ordinary hours or “overtime” under the Award may not be straightforward.

Recent Cases on Shiftwork

Recent cases dealing with overtime and shiftwork in the civil construction sector show the shiftwork and overtime provisions in the Award are subject to arguments and interpretation.

These cases show the complication of arguments on whether work is or is not shiftwork in the civil construction sector under the Award.

Sections of the Award on Shiftwork

Shiftwork

Clause 17.2 of the Award provides the shiftworker provisions for the civil construction sector.

For the purpose of clause 17.2 of the Award, “shiftwork” is defined in clause 17.2(a) as: “any system of work in which operations are being continued by the employment of a group of employees upon work on which another group had been engaged previously”.

Causal Employees, Overtime and Shiftwork

Some general summary points on the Award that are apparent from the cases include:

    1. Casual employees can be performing shiftwork, if the system of work meets the definition of “shiftwork” in the Award.
    2. The shiftwork provision in clause 17.2(a) of the Award exempts, where it applies, an employee from the operation of the overtime provisions in the Award.
    3. The decisions of Courts and Tribunals seem to favour the view that, other than for shiftwork, casual employees’ ordinary hours would be within the span of 7.00am and 6.00pm Monday to Friday.
    4. If work performed by a casual employee is after 6.00pm and before 7.00 am (which is not “shiftwork”), the overtime penalty rate provisions of the Award would apply.

 

Shiftwork in Casual Employment

Retro Traffic Pty Ltd [2019] FWC 2062

In the case of Retro Traffic Pty Ltd [2019] FWC 2062 (Retro Case), the company Retro Traffic Pty Ltd (Retro):

    1. had some sites and projects where its employees worked a single shift (night shift) and no other Retro employees worked on that site or project at any other time of the day;
    2. had other sites and projects where its employees worked across 24 hours of the day, with one shift of employees immediately followed on the work of other Retro employees on the same site or project; and
    3. looking across the whole of its enterprise, it was likely to always be the case that its employees would be undertaking work on operations at times that follow the work of others, while sometimes at a different work site.

 

In the Retro Case, the Fair Work Commission concluded:

    1. The “system of work” contemplated by clause 17.2(a) of the Award (as this clause was at the time) may have an “enterprise” focus, rather than a site or project focus.
    2. Retro’s employees working on night shift were working shiftwork, even though they may be working on sites or projects where the activities they were undertaking at the site or project were not continued, either by them on night shift or by another group of Retro employees on day work following their night work.

 

Altus Traffic Pty Ltd [2019] FWCA 5941

In Altus Traffic Pty Ltd [2019] FWCA 5941, the Fair Work Commission provided:

    1. Both Retro and Altus Traffic Pty Ltd have a “system of work in which operations are being continued”, because their operations consist of the provision of traffic management services and those operations continue, across their enterprises, throughout 24 hours of the day.
    2. The definition of shiftwork in the Award is not satisfied merely by having a “system of work in which operations are being continued”.
    3. For the work the be shiftwork, the operations must be continued “by the employment of a group of employees upon work on which another group had been engaged previously” and the “work” which one group of employees undertakes must be the same “work” as the other group of employees had been engaged in previously.
    4. Work on different sites and projects, for different clients, could not, properly be regarded as the continuation of operations “by the employment of a group of employees upon work on which another group had been engaged previously”.

 

Shiftwork in D&D Traffic Management Pty Ltd Cases

There are recent cases on the D&D Traffic Management & Other Work Enterprise Agreement 2020 that relate to the shiftworker provisions in the Award, including D&D Traffic Management Pty Ltd v The Australian Workers’ Union [2022] FCAFC 113 (D&D Traffic 2022) and D&D Traffic Management Pty Ltd v The Australian Workers’ Union & Ors [2021] FWCFB 4197 (D&D Traffic 2021).

In D&D Traffic 2021, the Full Bench of the Fair Work Commission found:

    1. The definition of “shiftwork” required the continuation of operations by a group of employees upon work which another group of employees had engaged in previously.
    2. The definition of shiftwork connotes, at the least, a two-shift system of operations.
    3. A “stand-alone” night shift Monday to Friday worked without a preceding shift worked anywhere would not fall within the 2010 Award definition of “shiftwork” and would be payable at the higher overtime penalty rates prescribed by clause 36.2 of the 2010 Award (the predecessor of clause 29.4 of the 2020 Award).

 

D&D Traffic 2021 was upheld by the Full Court of the Federal Court of Australia in D&D Traffic 2022.

The Court importantly provided in D&D Traffic 2022 on the shiftwork definition: “… the definition does not capture the situation where employees carry out work at location A and other workers then carry out work at location B. Such work is not carried on “upon work” on which another group had been previously engaged.”

Conclusion

Correct interpretation of modern awards is important. It can be quite costly if it is not correct. If you require assistance assessing provisions of the of the Building and Construction General On-Site Award 2020 or another modern award, feel free to contact us.

See more articles on modern awards at our page here.

If you need advice or assistance, feel free to call Marc de Carne on (02) 9189 5905 or email [email protected].

GENERAL AND CONTACT INFORMATION

The article, the content and references made are intended to keep an audience updated with information. It is not intended that the article or part of it should be relied upon as advice. Information provided may not apply to in all circumstances or in particular situations. If you do want particular advice or you have any questions, we welcome you to contact us on (02) 9189 5905 at [email protected]

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