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Workplace flexibility lessons for employers

19 February 2019

#Workplace Relations & Safety

Stephen Trew

Published by Stephen Trew, Ushna Bashir

Workplace flexibility lessons for employers

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

The Federal Court of Australia has ruled that, unless expressly authorised, employers cannot require employees to work split-shifts, after aviation service provider Swissport, previously known as Aerocare, argued that the relevant provisions in the Airline Operations – Ground Staff Award 2010 (Award) did not apply to part-time employees. 

The decision highlights the difficulties for employers in rostering employees to meet on the ground work requirements. Although Swissport rostered split-shifts to accommodate quieter work times, the work periods were found to constitute separate shifts, each individually invoking employee rights under the Award.

Facts

Split-shifts are two paid periods of work within a single day that are split by an unpaid period when the employee is not working. Many part-time employees, called Permanent Secure Employees (PSEs) at Swissport, were required to work split-shifts because it allowed Swissport the advantage of not paying wages during down periods at the airport. 

However, under cl 28.3(d) of the Award, an employee cannot be required to work more than one shift in 24 hours. Swissport contended that cl 28.3(d) only applied to full-time employees and that a split-shift was in fact one single shift, and was therefore permissible under the Award. 

Decision 

In addressing whether cl 28.3(d) applied to PSE’s, Rangiah J found that the reference in the clause was broadly to an ‘employee’, as opposed to exclusively full-time employees. Further, cl 11.4(c)(ii) of the Award which deals with part-time shift-workers  refers to cl 28 of the Award for the purpose of rostering. This confirmed the application of the clause to PSEs. 

In response to the argument surrounding whether the PSEs shift work comprised a singular or multiple shifts, Rangiah J reasoned that as a matter of ordinary language…to regard an employee as having only worked one shift seems quite artificial where they have an unpaid period between two periods of work. Thus, Rangiah J found that one shift under the Award is a period of paid work for at least four consecutive hours which is only broken by a meal break. 

Lessons for employers 

This decision serves as a reminder for employers to test their workplace arrangements against the relevant modern award, especially when bargaining for new agreements. It is becoming increasingly common for established workplace practices to be challenged as not being consistent with the terms of an applicable award or enterprise agreement despite having been in place for a number of years. ­

Lacson v Australian Postal Corporation [2019] FCA 51

In this matter, the Federal Court of Australia upheld the decision of the Federal Circuit Court that two separate and distinct engagements for the same employee do not amount to a single position. An Australia Post worker who held concurrent positions as a Postal Sorting Officer and a Postal Delivery Officer has been denied overtime, rest relief and meal allowances that he claimed he was owed for working long, cumulative hours for Australia Post. 

This case is significant in highlighting the complications that may arise under multi-hire arrangements and the importance for employers to remain vigilant of employee entitlements under their applicable enterprise agreements. 

Facts

Mr Lacson was first employed by Australia Post as a Postal Delivery Officer and later also secured employment as a Postal Sorting Officer, both on a permanent part-time basis. These roles comprised of separate duties, were carried out at separate times and in separate locations. Most importantly, they were covered by two separate contracts of employment, albeit under the same enterprise agreement. 

Mr Lacson asserted that a proper construction of s 52(2) of the Fair Work Act 2009 (Cth) (FWA) would deem all work that fell within the scope of one applicable enterprise agreement to be singular and combined employment. Therefore, he argued that he had one engagement and not two. The decision thus rested on the meaning of ‘particular employment’ as used in s 52(2) of the FWA and its application to Mr Lacson’s circumstances. 

Decision 

Mortimer J upheld the interpretation of s 52(2) of the FWA adopted by the Federal Circuit Court, ruling that the term ‘particular employment’ was not used to preclude an enterprise agreement applying to more than one engagement. Instead, Mortimer J reasoned that the purpose of the phrase is to enable identification, with sufficient precision, of what the job or position of an employee is at any given time

Thus, it was found that the applicable enterprise agreement permitted the operation of multiple engagements, and that Mr Lacson’s positions were, in fact, two separate employments due to the distinct nature of each.  As such, the Court dismissed Mr Lacson’s claim for overtime entitlements and found Australia Post had not breached the enterprise agreement. 

Lessons for employers 

Where multi-hire arrangements are in place, employers should carefully refer to their respective enterprise agreements or modern awards to determine employee entitlements. In order to minimise potential claims, employers should ensure that the engagements are in fact separate and distinct as well as separately documented. 

Authors: Stephen Trew & Ushna Bashir

Contacts

Sydney
Stephen Trew, Partner
T: +61 2 8083 0439
E: stephen.trew@holdingredlich.com

Michael Selinger, Partner
T: +61 2 8083 0430
E: michael.selinger@holdingredlich.com

Melbourne
Charles Power, Partner
T: +61 3 9321 9942
E: charles.power@holdingredlich.com

Benjamin Marshall, Partner
T: +61 3 9321 9864
E: ben.marshall@holdingredlich.com

Brisbane
Rachel Drew, Partner
T: +61 7 3135 0617
E: rachel.drew@holdingredlich.com

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Stephen Trew

Published by Stephen Trew, Ushna Bashir

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