FEDERAL COURT OF AUSTRALIA

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

ORDERS

THE COURT ORDERS THAT:

1.    The amended originating application is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

RANGIAH J:

1    The applicant provides ground handling services to airlines at 24 airports in Australia. Although the applicant changed its name during the currency of the proceeding, it is convenient to refer to the applicant by its former name, Aerocare Flight Support Pty Ltd (Aerocare).

2    Many of Aerocare’s part-time employees work “split-shifts”. These are, in essence, two paid periods of work within a single day that are split by a period when the employee is not working and not paid.

3    In this proceeding, Aerocare seeks declaratory orders to the effect that the split-shifts it utilises are not prohibited under the Airline Operations - Ground Staff Award 2010 (the Award); and that its employees are not entitled to overtime rates or recall penalties for split-shifts.

4    Aerocare’s application has its genesis in a series of disputes concerning enterprise agreements before the Fair Work Commission (the Commission). The proper interpretation of the Award arises for consideration in those disputes. Before the Commission, the respondents (the Unions) have contended that the Award would prevent Aerocare from requiring its employees to work split-shifts or, alternatively, that Aerocare would be required to pay overtime rates or recall penalties. Aerocare has argued to the contrary.

5    Aerocare seeks the declaratory relief in support of its case before the Commission. The Unions oppose the making of such declarations on the basis, firstly, that the Court lacks jurisdiction and, secondly, that their construction of the Award is to be preferred.

6    This case requires consideration of five issues. They are:

(1)    Whether the Court has jurisdiction to hear and determine the application.

(2)    Whether the relevant employees are “part-time shiftworkers” under the Award.

(3)    Whether, as Aerocare contends, cl 28.3 of the Award has no application to part-time shift workers.

(4)    Whether, as the Unions contend, cl 28.3(d) of the Award operates to prohibit employers from requiring part-time shiftworkers to work split-shifts.

(5)    Whether the relevant employees are entitled to overtime rates or recall penalties in respect of the second period of a split-shift.

7    Before addressing these issues, I will describe the factual background, the evidence, and the relevant terms of the Award.

Background

8    The application is concerned with part-time employees of Aerocare who perform ground-handling duties. Those duties include baggage and cargo handling, check-in functions, boarding-gate functions and associated administrative tasks. Aerocare calls its part-time employees “Permanent Secure Employees” (PSEs).

9    It is in the nature of ground-handling duties that employees tend to be busy when flights arrive and depart, and quiet at other times. The working of split-shifts offers Aerocare the advantage of not having to pay wages during quiet times.

10    As I have said, the present application is related to a series of disputes concerning enterprise agreements before the Commission. I will describe the history of the enterprise agreements and the disputes.

11    In 2012, Aerocare made an enterprise agreement called the Aerocare Collective Agreement 2012 (the 2012 Agreement) with its employees. The 2012 Agreement was approved on 12 February 2013.

12    There is in evidence Aerocare’s standard form letter of offer of employment to PSEs. The letter states that the employee is to be engaged as a PSE and that the terms of employment are as provided in the 2012 Agreement.

13    The 2012 Agreement states that employees may be engaged as Casual Employees, PSEs or Full-Time Employees (FTEs). PSEs are entitled to a minimum of three hours pay per shift. PSEs are entitled to a minimum of 60 hours’ work in a 28 day period, subject to work being available and the employees being available for work. FTEs, in contrast, are required to work a minimum of 152 hours in a 28 day period. Accordingly, PSEs can be described as part-time employees.

14    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.” Aerocare relies on this provision to authorise the working of split-shifts by PSEs.

15    On 18 April 2017, Aerocare made a new enterprise agreement called the Aerocare Collective Agreement 2017 (the 2017 Agreement) with many of its employees. The 2017 Agreement differed, relevantly, from the 2012 Agreement in that it required that PSEs be rostered for a minimum of four consecutive hours on any shift. It contained a clause in the same terms as cl 9.8 of the 2012 Agreement.

16    On 31 August 2017, Commissioner Wilson dismissed Aerocare’s application for approval of the 2017 Agreement. The Commissioner was not satisfied, for the purposes of s 186(3) of the Fair Work Act 2009 (Cth) (the Act), that the group of employees covered was “fairly chosen”. Further, the Commissioner was not satisfied, for the purposes of s 186(2)(d) of the Act, that the employees would be “better off overall”. In so holding, the Commissioner stated, “…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”. The Commissioner considered that as the 2017 Agreement did allow split-shifts, PSEs would not be better off under the 2017 Agreement than under the Award.

17    Aerocare then filed a notice of appeal. On 27 November 2017, the Full Bench held that there was no error in relation to the fairly chosen issue, and did not deal with the better off overall issue. On 4 January 2018, the Full Bench dismissed the appeal with respect to the fairly chosen issue and otherwise refused permission to appeal.

18    Aerocare then filed an application in this Court seeking to quash the decisions of Commissioner Wilson and the Full Bench. That application was dismissed by a Full Court on 15 May 2018: Aerocare Flight Support Pty Ltd v Transport Workers’ Union of Australia [2018] FCAFC 74. The Full Court was not required to consider the better off overall (or split-shift) issue.

19    On 20 September 2017, the Transport Workers’ Union of Australia (the TWU) applied to terminate the 2012 Agreement. The TWU contended that the 2012 Agreement provided terms and conditions materially below the standards contained in the Award. The termination application has been stayed by the Commission pending the outcome of this proceeding. In considering the stay application, Senior Deputy President Hamberger concluded:

I am now satisfied that whether employees working split shifts are entitled to be paid overtime if the Award were to be applied is a significant issue that I will need to consider in dealing with the termination application.

20    Following its failure to obtain approval of the 2017 Agreement, Aerocare made a further enterprise agreement on 1 May 2018, called the Aerocare Collective Agreement 2018 (the 2018 Agreement), with its employees. Aerocare has applied to the Commission for approval of the 2018 Agreement.

21    The 2018 Agreement provides for certain categories of employees, including PSEs, to work “voluntary split shifts”. The TWU’s response to Aerocare’s application included submitting that “split shifts are not a feature of the Award and their inclusion in the agreement results in a BOOT failure”.

22    On 17 September 2018, Commissioner Wilson wrote to the parties setting out a series of issues to be addressed. These included whether split shifts under the 2018 Agreement would result in a reduction in entitlement in comparison to the Award for employees who voluntarily agree to work such shifts. Aerocare applied to the Commission for an adjournment of the application for approval of the 2018 Agreement until the determination of the application presently before the Court. The Commissioner granted an adjournment until the determination of the present proceeding, saying:

I was persuaded that the matters to be determined by the Court would in fact be centrally relevant to the matters which need to be determined in these proceedings…

23    On 23 February 2018, Jagot J dismissed an application by the Unions to stay the present proceeding as an abuse of process: Aerocare Flight Support Pty Ltd v Australian Municipal, Administrative, Clerical and Services Union [2018] FCA 128. Her Honour stated at [29]:

…This Court alone, and not the FWC, has jurisdiction to determine the proper construction of the Award and whether Aerocare’s rostering is permitted under the Award or not, as well as the potential consequences for overtime…

24    In ruling that the proceeding should not be stayed pending the application before the Commission to terminate the 2012 Agreement, her Honour observed at [31]:

For one thing, the FWC may be right that the construction of the Award in respect of splitshifts is not a central consideration under s 226 of the Fair Work Act which applies to the termination proceeding. For another, if it becomes central, the position is the same as in Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees Union [2015] FCA 1033; a decision of this Court which provides a determinative construction of the Award would assist the FWC in discharging its functions under s 226 of the Fair Work Act. Further, and as noted, there is unchallenged evidence before the Court that the issues to be resolved in this Court are fundamental to any new enterprise agreement to be negotiated between Aerocare and its employees, and relate to widespread rostering practices in the industry…

25    In summary, the position is that the application to terminate the 2012 Agreement has been stayed and the application for approval of the 2018 Agreement has been adjourned pending the outcome of this proceeding, while the application to stay this proceeding was dismissed.

Evidence as to the split-shifts worked by Aerocare’s employees

26    Aerocare relies upon six affidavits of Gregory Shelley, who is described as its General Manager, Employee Relations. Unfortunately, none of these affidavits provide any detailed and specific description of how Aerocare utilises split-shifts, including the number of PSEs who work split-shifts and the organisation of such shifts.

27    Mr Shelley deposes in his affidavit of 12 October 2017:

The Applicant has a custom and practice of allowing PSEs who choose to do so, to work their shift on a day as a “split-shift”...

28    Mr Shelley deposes in his affidavit of 30 November 2017:

Aerocare employees have always been able to choose a “split-shift”, that is, a period of work, for example, 3 or 4 hours, a further period of work later that day of, for example, another 3 or 4 hours, with a period of non-work in between.

29    Mr Shelley deposes in his affidavit of 26 March 2018 that:

7.    The Aeronet system will roster employees to work according to their availability and hours of work. This includes rostering “split-shifts” for part-time employees who wish to work them. Any employee who does not wish to be rostered for or work “split-shifts”, can elect not to do so. For “split-shifts”, the Aeronet system will roster the employee with a start time and a finish time for a single shift, with a period of non-work during the shift. During the period of non-work in a “split-shift”, employees are free to do whatever they want and are not required to remain at the work location or otherwise be on-call.

…

9.    Based on the above, the start and finish times of any particular “split-shift” may be earlier or later, the period of non-work during the “split-shift” may be shorter or longer, and the days of the week on which split-shifts are rostered may vary. Each of these matters will depend on the factors referred to above as they apply at each particular work location.

10.    Generally speaking however:

(a)    the start and finish times of most “split-shifts” are no more than 12 hours apart, although there are occasional instances where the start and finish times of “split­shifts” are longer;

(b)    the start and finish times of most “split-shifts” fall on the same calendar day, although there are occasional instances where a “split-shift” will conclude early the following morning;

(c)    each period of work before or after a period of non-work on a “split-shift” is at least 3 hours in duration, ranging up to about 5 hours in duration; and

(d)    the period of non-work during the “split-shift” is generally between 2 and 6 hours.

30    In the same affidavit, Mr Shelley deposes that in all airport locations “greater than 80% of employees work ‘split-shifts’”. He also deposes that an employee who is eligible to work is not free to select one tranche or component of a split shift without the other.

31    The respondents rely upon the evidence of Damien Smith, a former employee of Aerocare. Mr Smith deposes that Aerocare predominantly employs part-time employees, who work a combination of single shifts and split-shifts. He says the average length of a single shift is three to four hours. He deposes that generally split-shifts consist of two “shifts” in a day with a period of unpaid work in between. On rare occasions, an employee may work three “shifts” in a day.

The declarations sought

32    In its amended originating application, Aerocare seeks declaratory orders in the following terms:

1.    A declaration…to the effect that on a proper construction of clause 28.3(d) of the (Airline Operations – Ground Staff Award 2010) (Award), a “split shift” when utilised by the applicant for its part-time Permanent Secure Employees does not amount to work on more than one shift in a 24 hour period.

2.    A declaration…to the effect that on a proper construction of the Award, a “split shift” when utilised by the applicant for its part-time Permanent Secure Employees is not otherwise prohibited or prevented by any provisions of the Award.

3.    A declaration…to the effect that on a proper construction of the Award, the second period of work in a “split shift” when utilised by the applicant for its part-time Permanent Secure Employees, does not:

(a)    amount to or constitute “overtime” within the meaning of clause 32.1 of the Award;

(b)    amount to or constitute “recall” within the meaning of clause 32.4 of the Award; or

  (c)    attract the payment of overtime penalties under the Award.

4.    In paragraphs 1-3 above, “split shift” means a rostered shift comprising of two periods of work duty separated by a period of non-work duty, where:

(a)    the first period of work duty starts and the second period of work duty ends within the same 24 hour period;

(b)    at least one of the periods of work duty is of at least four hours’ duration; and

(c)    the periods of work duty combined together do not exceed 12 hours’ duration of work duty.

The Award

33    It should be observed that the Award does not presently apply to Aerocare’s PSEs. That is because the effect of s 57 of the Act is that the Award does not apply while the 2012 Agreement continues to apply. However, the Award would apply to the PSEs if the 2012 Agreement were set aside.

34    Clause 11.4(c)(ii) of the Award provides, relevantly, that “part-time shiftworkers will be rostered in accordance with clauses 28 and 30”.

35    Part 5 of the Award has the heading “Hours of Work and Related Matters”, and consists of cll 28–33. Clause 28.3 provides:

28.3     Ordinary hours of work—shiftwork

(a)     Continuous shiftwork means work carried on with consecutive shifts of employees throughout the 24 hours of each of at least six consecutive days without interruption except for breakdowns or meal breaks or due to unavoidable causes beyond the control of the employer.

(b)     Subject to clause 28.3(c) the ordinary hours of shiftworkers are an average of 38 hours per week inclusive of meal breaks and must not exceed 152 hours in 28 consecutive days.

(c)     By agreement between the employer and the majority of the employees concerned, a roster system may operate on the basis that the weekly average of 38 ordinary hours is achieved over a period which exceeds 28 consecutive days but does not exceed 12 months.

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

(e)     The employer and a majority of affected employees may agree to arrange shifts which require up to an average of 40 hours per week with one regular rostered day off in each four week cycle.

(Underlining added.)

36    This case is principally concerned with the construction of cl 28.3(d).

37    The Union contends that the effect of cl 28.3(d) of the Award is that an employee cannot be required to work split-shifts because each component, or work period, of a split-shift is “one shift”. On the other hand, Aerocare contends that both work components of a split-shift are together, “one shift”.

38    It should be noted that the question of whether Aerocare’s employees are “required” to work split shifts does not arise for determination. That would not involve, not merely construction of cl 28.3(d), but also issues of fact. When the hearing commenced, Aerocare applied for leave to amend its originating application to raise that question. I declined to grant leave because Aerocare had only notified the Unions of the proposed amendment a few days before the hearing, no adequate explanation for the delay was provided and the Unions would be prejudiced by the amendment: Swissport Australia Pty Ltd v Australian Municipal, Administrative, Clerical and Services Union [2018] FCA 1200.

39    As cll 11.4(c)(ii) and 28.3(d) of the Award refer to “shiftworkers”, an issue arises as to whether Aerocare’s PSEs would be “shiftworkers” if the Award applied to them. In that respect, it is necessary to consider how employees are categorised under the Award.

40    Clause 11.1 of the Award provides that employees will be classified as full-time, part-time, or casual employees.

41    Under cl 11.4(a) of the Award, part-time employees are defined as follows:

(a)     General

(i)     A part-time employee is an employee who is engaged to perform less than an average of 38 ordinary hours per week on a reasonably predictable basis.

(ii)     Part-time employees are entitled on a pro rata basis to equivalent pay and conditions to those of full-time employees who do the same work in the classification concerned.

(iii)     An employer is required to roster a part-time employee for a minimum of four consecutive hours on any shift.

(iv)     A part-time employee employed under the provisions of this clause must be paid for ordinary hours worked at the rate of 1/38th of the weekly rate prescribed for the class of work performed.

42    Clause 11.4 goes on to categorise part-time employees as “day workers” or “shiftworkers”. A “part-time day worker” is described in cl 11.4(b) as follows:

(b)     Part-time day workers

(i)     At the time of engagement or appointment of an employee as a day worker, the employer and the part-time employee will agree in writing on a regular pattern of work, specifying:

•    the guaranteed minimum number of ordinary hours to be worked per week; or

•    which days of the week the employee will work and the actual starting and finishing times each day.

…

43    A “part-time shiftworker” is described in cl 11.4 as follows:

(c)     Part-time shiftworkers

(i)     At the time of engagement or appointment of an employee as a shiftworker, the employer and the part-time employee will agree in writing the guaranteed minimum number of ordinary hours to be worked per week.

(ii)     Subject to clause 11.4(c)(i) part-time shiftworkers will be rostered in accordance with clauses 28 and 30.

(iii)     All time worked in excess of the rostered daily hours will be overtime and paid for at the appropriate overtime rate.

44    The clauses of the Award that are principally relevant to the question of whether PSEs can be required to work split-shifts are contained in Part 5, which, as I have said, consists of cll 28–33.

45    Clause 28.2 deals with “Ordinary hours of work—day work”. The parties agree that this clause is not directly relevant, but has some indirect relevance.

46    Clause 28.3 then deals with shiftwork and is the primary clause to be construed in this proceeding.

47    Clause 28.4 has the heading, “Method of arranging ordinary hours”. Clause 28.4(a) provides, relevantly, that the arrangement of ordinary working hours must be by agreement between the employer and a majority of employees in the enterprise or part of the enterprise concerned, but that this does not preclude the employer reaching agreement with individual employees about how their working hours are to be arranged. Under cl 28.4(b)(iii) the matters on which agreement may be reached include “rosters which specify the starting and finishing times of working hours”.

48    Clause 29.2 has the heading “Meal break—shiftwork”. Clauses 29.2(b) and (c) provide that “non-continuous shiftworkers must be allowed an unpaid meal break of between 30 minutes and one hour” no later than five hours after commencing an ordinary shift. It is common ground that Aerocare’s relevant employees are not continuous shiftworkers.

49    Clause 30 has the heading “Special provisions for shiftworkers”. Clause 30.1(c) defines “change of shift” to mean “the transfer of an employee from a shift in the roster pattern to another shift in the same roster pattern”.

50    Clause 30.2(a) provides that shift-work rosters must specify the commencing and finishing times of ordinary working hours of the respective shifts.

51    Clause 30.3 provides:

30.3    Shift loadings

For all shifts worked between midnight Sunday to midnight Friday the following loadings must be paid in addition to ordinary rates:

The principles of construction of awards

52    The principles of construction of awards are well-settled and include the following:

(1)    The canons of construction found in the Acts Interpretation Act 1901 (Cth) apply to awards of the Commission: City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at [52]; Construction, Forestry, Mining and Energy Union (Construction and General Division) v Master Builders’ Group Training Scheme Inc (2007) 161 IR 86 at [33]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Excelior Pty Ltd [2013] FCA 638 at [29]; Sydney Night Patrol and Inquiry Company Limited trading as SNP Security v Pulleine [2014] FCA 385 at [26].

(2)    The task of construction begins with the natural and ordinary meaning of the words used: City of Wanneroo at [53]; Kucks v CSR Limited (1996) 66 IR 182 at 184; Australian Workers’ Union v Cleanevent Australia Pty Ltd [2015] FCA 1477 at [13].

(3)    An award is to be interpreted in light of its industrial context and purpose: City of Wanneroo at [53]; Zader v Truck Moves Australia Pty Ltd [2016] FCAFC 83 at [27]; Prestige Property Services Pty Ltd v Liquor, Hospitality and Miscellaneous Union (2007) 161 FCR 95 at [56] and [109]; Soliman v University of Technology, Sydney (2008) 176 IR 183 at [82]

(4)    An award is also to be interpreted in light of the commercial and legislative context in which it applies: Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [2] and [13]; Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd (2010) 186 FCR 88 at [90]; Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [14]-[18]; Zader at [27].

(5)    An award “must not be interpreted in a vacuum divorced from industrial realities”: City of Wanneroo at [57]; Australian Workers’ Union v Cleanevent Australia Pty Ltd at [14].

(6)    The relevant “context” to be considered in interpreting an award extends to the origins of a particular clause. However, most often the immediate context, being the clause, section or part of the award in which the words to be interpreted appear, will be the clearest guide: Short v FW Hercus Pty Limited (1993) 40 FCR 511 at 517-19.

(7)    The Court should not make too much of infelicitous expression in the drafting of an award. Ultimately, as awards bind the parties on pain of pecuniary penalties, they should make sense according to the basic conventions of the English language: City of Wanneroo at [57]. Narrow or pedantic approaches to the construction task are misplaced, but a court is not free to give effect to some anteriorly derived notion of what is fair or just regardless of what has been written in the award: Kucks at 184; Excelior Pty Ltd at [30].

(8)    While context and purpose of an award will be relevant, ultimately the Court’s task is to give effect to the meaning of the award as expressed in its words, objectively construed: Amcor Limited at [70], [77]–[114].

Consideration

The first issue: whether the Federal Court has jurisdiction to hear and determine the application

53    Section 21(1) of the Federal Court of Australia Act 1976 (Cth) provides:

The Court may, in civil proceedings in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed.

54    Section 562 of the Act provides:

Jurisdiction is conferred on the Federal Court in relation to any matter (whether civil or criminal) arising under this Act.

55    It may be seen that for the Court to make declarations, it must have “jurisdiction”; and for the Court to have jurisdiction there must be a “matter”, and the matter must be one “arising under this Act”.

56    The interpretation of a modern award or enterprise agreement that confers rights or imposes obligations is a matter that may properly be said to arise under the Act: Energy Australia Yallourn Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2017] FCA 1245 at [57]; Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees Union [2015] FCA 1033 at [19].

57    A “matter” is “the subject matter for determination in a legal proceeding”: Palmer v Ayres (2017) 259 CLR 478 at [26]. For there to be a “matter”, there must be “some immediate right, duty or liability to be established by the determination of the Court”: In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265; Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591 at [48]. The essence of a “matter” is the existence of “a single justiciable controversy”: Fencott v Muller (1983) 152 CLR 570 at 608; Hooper v Kirella Pty Ltd (1999) 96 FCR 1 at [52]. What is and is not part of such a controversy depends upon “what the parties have done, the relationships between or among them and the laws which attach rights and liabilities to their conduct and relationships”: Fencott v Muller at 608; Palmer v Ayres at [26]. The controversy the Court is asked to determine must be genuine, and not merely an advisory opinion divorced from a controversy: Palmer v Ayres at [27]; CGU Insurance Limited v Blakeley (2016) 259 CLR 339 at [26].

58    Aerocare submits that it has a sufficient interest in the construction of cl 28.3(d) of the Award (which arguably deals with split-shifts) and cl 32.1 (which deals with payment for overtime) for a justiciable controversy to arise. That interest is claimed to arise from the TWU’s application to the Commission to terminate the 2012 Agreement and Aerocare’s application for approval of the 2018 Agreement.

59    The Unions submit that there is no justiciable controversy as there is no immediate right, duty or liability to be established by the determination of the Court. They submit that Aerocare does not have any immediate interest in the construction of the Award, since, pursuant to s 57 of the Act, the Award does not apply and confers no legal rights and imposes no obligations while the 2012 Agreement applies. The Unions also submit that the terms of the declarations sought do not reflect the terms of the 2012 Agreement, so they would not assist in the termination proceedings before the Commission. The Unions further submit that there is no evidence that Aerocare’s employees actually work the split-shifts defined in the proposed declarations, so that a justiciable controversy has not been demonstrated to arise. Further, as a separate point, the Unions submit that there is an insufficient evidentiary foundation to support the making of the declarations sought.

60    The application brought by the TWU before the Commission is to terminate the 2012 Agreement. Section 226 of the Act provides that the Commission must terminate the agreement if, relevantly, the Commission considers that it is appropriate to terminate the agreement taking into account all the circumstances. Under s 226(b), the Commission is required to take into account the circumstances of relevant employees, employers and employee organisations, including the likely effect that the termination will have on each of them.

61    If the 2012 Agreement is terminated, the Award will apply. Therefore, in considering the application for termination, it will be necessary for the Commission to make a comparison between the terms of the Award and the 2012 Agreement.

62    In the termination proceeding, Aerocare contends that the Award does not prevent PSEs from working split-shifts, and such shifts do not attract overtime or recall penalties. The Unions contend that spilt-shifts are prohibited, or at least attract overtime or recall penalties for the second component of the split-shift. It is in that context that Senior Deputy President Hamberger concluded that whether employees working split-shifts are entitled to be paid overtime for split-shifts under the Award is a significant issue in the termination proceeding. I respectfully agree with that assessment.

63    Aerocare has applied to the Commission for approval of the 2018 Agreement pursuant to s 185(1) of the Act. The Commission must approve the agreement if the requirements of ss 186 and 187 are met, including the requirement that the agreement passes the “better off overall test”. That test requires, under s 193(1) of the Act, that each award covered employee for the agreement would be better off overall than if the award applied. The position of each award employee must be considered: Shop, Distributive and Allied Employees Association v ALDI Foods Pty Ltd [2016] 245 FCR 155 at [163].

64    Commissioner Wilson has expressed the opinion that the matters to be decided in the proceeding before this Court are centrally relevant to those required to be decided by the Commission in the application for approval of the 2018 Agreement. I respectfully agree. There are issues that will arise before the Commission concerning whether Aerocare could require its employees to work split-shifts and whether such employees would be entitled to overtime rates and recall penalties for the second component of a split-shift under the Award.

65    The Union submits, however, that there is no justiciable controversy because, while the proposed declarations are premised upon Aerocare’s employees working a defined pattern of split-shifts, it has not been demonstrated in this proceeding that they do work shifts of that nature. In the declarations sought by Aerocare, “split-shift” is defined to mean a rostered shift comprising of two periods of work duties separated by a period of non-work duty where three conditions are met. The first condition is that the first period of work duty starts and the second ends within the same 24 hour period. The second condition is that at least one of the periods of work duty is of at least four hours duration. The third condition is that the periods of work duty combined together do not exceed 12 hours of work duty. The Unions also submit that the first and second of these conditions are not reflected in any terms of the 2012 Agreement so that the declarations sought would not assist in resolving the proceedings before the Commission.

66    I agree that Aerocare’s evidence concerning the way in which it utilises split-shifts is somewhat general and lacking in detail. It would have been preferable for Aerocare’s evidence to have been more precise and specific to allow the relevance of the proposed declarations to the resolution of the controversy before the Commission to be more clearly seen.

67    However, the evidence of Mr Shelley, supplemented in part by the evidence of Mr Smith, does demonstrate that Aerocare operates split-shifts in the following way:

    An employee is rostered with a single starting time and a single finishing time, with a period of time in between designated for “non-work”.

    The non-work period is not a meal break.

    The employee is not paid for the non-work period.

    During the non-work period, employees are not required to remain at the work location or otherwise be on-call.

    The starting and finishing times and the period of non-work vary from day to day, and from airport to airport, depending upon Aerocare’s operational needs.

    Aerocare’s operational needs take into account factors such as flight patterns, types of aircraft and the flight operating hours of a particular airport.

    Generally the starting and finishing times are no more than twelve hours apart, but may occasionally be over a longer duration.

    Generally the starting and finishing times fall on the same calendar day, although there are occasionally instances where the finishing time concludes early the following morning.

    The period of non-work is generally between two and six hours.

    Generally there are two periods of work in a calendar day, although there are rare occasions where there are three periods of work.

    Only PSEs work split-shifts, and more than 80% of the PSEs who work at airport locations work split-shifts.

    At least one period of work before or after a period of non-work is at least four hours in duration and can range up to five hours.

68    As to the last of these matters, although Mr Shelley’s affidavit of 26 March 2018 states that generally each period of work is three to five hours in duration, I accept that the effect of his oral evidence (although somewhat vague) is that there is now “a four hour minimum engagement”. That change appears to have come about because of the terms of the 2017 Agreement and the 2018 Agreement which provide for PSEs to be rostered for a minimum of four consecutive hours in any shift. It is unclear from the evidence whether each of the two work periods in Aerocare’s split-shifts is at least four hours, or whether only one of the two work periods is at least four hours. However, the terms of the declarations sought by Aerocare suggest that the latter is the position.

69    I accept that each of the facts set out at para [66] has been proven. In particular, contrary to the Unions’ submission, I find that generally the first period of work duty in Aerocare’s split-shifts starts and the second ends within the same 24 hour period and at least one of the periods of work duty is of at least four hours duration.

70    In any event, as was accepted by the Unions in the course of argument, provided that the evidence demonstrates a sufficient factual foundation, the Court may make declarations which depart from the precise terms of the draft declarations sought by Aerocare. In my opinion, appropriate declarations are capable of being made that would assist in the resolution of the controversy before the Commission.

71    The relevant controversy before the Commission concerns the construction of the Award, not the 2012 Agreement or the 2018 Agreement. It is necessary to consider whether the declarations would be of practical assistance in the resolution of that controversy. Although the Award does not presently apply, its interpretation is centrally relevant to the outcome of the application for termination of the 2012 Agreement and approval of the 2018 Agreement. The proper interpretation of the Award has real practical importance for Aerocare. There are immediate rights, duties and liabilities arising under the Award that will be affected by the construction of the Award determined by the Court.

72    For these reasons, I conclude that the Court has jurisdiction to hear and determine Aerocare’s application for declaratory relief.

73    Further, a sufficient factual basis has been established to allow the making of appropriate declarations if Aerocare’s construction of the Award is upheld.

The second issue: whether the PSEs would be categorised as “part-time shiftworkers” under the Award if it applied

74    The case is principally concerned with the construction of cl 28.3(d) of the Award. One of the issues that arises is whether or not that provision has application to Aerocare’s PSEs.

75    Clause 11.4(c)(ii) of the Award provides, relevantly, that “part-time shiftworkers will be rostered in accordance with clauses 28 and 30”. Clause 28.3 has the heading “Ordinary hours of work—shiftwork”. Although cl 28.3(d) is expressed to apply to “employees”, each party proceeded on the basis that it applies only to employees who are “shiftworkers”. That makes it necessary to determine whether Aerocare’s PSEs would be categorised as “shiftworkers” under the Award if the Award applied to them.

76    Aerocare’s employees who work split-shifts are called “PSEs”. The PSEs are entitled, under cl 9.6 of the 2012 Agreement, to a minimum of 60 hours per week in a 28 day period (an average of 15 hours per week), subject to work being available and the employees being available for work. Under cl 11.4(a)(i) of the Award, a part-time employee “is engaged to perform less than an average of 38 ordinary hours per week on a reasonably predictable basis”. Therefore, a PSE would be classified as a “part-time employee” under the Award.

77    Under cl 11.4(b) and (c) of the Award, a part-time employee is categorised as a “day worker” or “shiftworker”. It is not clear that PSEs would fall into either category, as each clause requires that the employee have a guaranteed minimum number of ordinary hours per week, whereas the entitlement to hours of work under cl 9.6 of the 2012 Agreement is subject to work being available. However, it was accepted by the parties that part-time employees must be either day workers or shiftworkers under the Award, there being no submission that there is some third category of part-time workers. That the PSEs do not strictly fit within either cl 11.4(b) or (c) can be explained by the fact that the Award does not presently apply to them.

78    It is necessary to determine whether PSEs would be categorised as “shiftworkers” or “day workers” under the Award. That determination must be made having regard to the terms of the Award and the available evidence, limited though it is, about the engagement and work patterns of PSEs. Clause 11.4(b)(i) of the Award refers to “day workers” having “a regular pattern of work”. In contrast, under the 2012 Agreement, PSEs’ hours are subject to the availability of work and the availability of the employee to perform the work. Further, the evidence demonstrates that the pattern of work is not regular, but depends upon Aerocare’s needs for labour on particular days. In addition, cl 28.2(c) provides that the ordinary hours of work for day workers are between 7 am and 6 pm (subject to alteration by up to one hour), whereas the evidence suggests that the ordinary hours of PSEs are not restricted to these periods. That is inconsistent with PSEs being “day workers” under the Award. On balance, PSEs are better categorised as “shiftworkers” than “day workers”.

79    I find that Aerocare’s PSEs would be part-time shiftworkers under the Award if the Award applied.

The third issue: whether cl 28.3(d) of the Award applies to part-time shiftworkers

80    I have found that Aerocare’s PSEs would be part-time shiftworkers under the Award. Clause 11.4(c)(ii) of the Award provides, relevantly, that part-time shiftworkers will be rostered in accordance with cl 28.

81    Aerocare submits that cl 28.3(d) of the Award, which the Unions rely upon as prohibiting split-shifts, has no application to part-time shiftworkers. If this submission is accepted, the Unions’ argument would fail.

82    Aerocare submits that cl 28.3(d) deals only with full-time shiftworkers. It submits that cll 28.3(a), (b), (c) and (e) are applicable only to full-time shiftworkers and, seen in that context, cl 28.3(d) must also have been intended to apply only to full-time shiftworkers.

83    Aerocare submits that the brevity of cl 11.3 of the Award also demonstrates that cl 28.3 is intended to deal only with full-time employees. Clause 11.3 provides merely that, “A full-time employee is an employee who was engaged to work 38 ordinary hours per week or an average of 38 ordinary hours per week”. In contrast, cl 11.4 has detailed and specific provisions for the working of part-time ordinary hours and overtime. Aerocare submits that cl 11.4 constitutes a “code” for the working hours of part-time employees, and that explains why cl 28.3 is only concerned with full-time employees.

84    Aerocare also submits that a construction of cl 28.3(d) of the Award as applying to part-time shiftworkers is precluded by the practical consequences of such a construction.

85    The Unions submit that cl 28.3(d) of the Award applies to part-time, as well as full-time, shiftworkers. They rely upon cl 11.4(c)(ii), which they submit requires part-time shiftworkers to be rostered in accordance with cl 28.3(d).

86    The Unions submit that cll 28.3(a), (b), (c) and (e) are applicable, not only to full-time shiftworkers, but also to part-time shiftworkers. They rely upon cl 11.4(a)(ii), which provides that part-time employees are entitled on a pro-rata basis to equivalent pay and conditions to full-time employees. They submit, on this basis, that the whole of cl 28.3 is applicable to part-time workers.

87    The Unions also argue that the consequence of Aerocare’s construction of cl 28.3(d) of the Award would be that there are no constraints under the Award on the rostering of part-time shiftworkers. On such an approach, a part-time shiftworker could be required to work any number of split-shifts in a 24 hour period.

88    For the reasons that follow, I accept the Unions’ submission that cl 28.3(d) of the Award does apply to part-time shiftworkers.

89    Firstly, cl 28.3(d) of the Award, in its terms, applies to “an employee”. That expression is apt to refer to both part-time and full-time shiftworkers. In contrast, cl 28.3(c) refers to “the employees concerned” and cl 28.3(e) refers to “affected employees” to limit the class of employees to which those provisions apply. In view of the different language used in cl 28.3(d), even if paras (a), (b), (c) and (e) apply only to full-time shiftworkers, that does not indicate that (d) must also apply only to full-time shiftworkers.

90    Secondly, the heading for cl 28.3 refers to “shiftwork”. That expression encompasses both part-time and full-time shiftwork. If there had been an intention to exclude part-time shiftworkers from the scope of the provision, the heading is likely to have referred to “full-time shiftwork”.

91    Thirdly, cl 11.4(c)(ii) of the Award states that “part-time shiftworkers will be rostered in accordance with clauses 28 and 30”. This indicates that rostering of part-time shiftworkers will be in accordance with all those provisions of cl 28 that can sensibly be construed as applying to part-time shiftworkers. Clause 28.3(d) is such a provision. While Aerocare argues that only cl 28.4 is intended to deal with rostering of part-time shiftworkers, if that was so, cl 11.4(c)(ii) is likely to have been expressed more narrowly referring only to cl 28.4.

92    Fourthly, if cl 28.3(d) does not apply to part-time shiftworkers, there would be no restriction under the Award upon the number of shifts that part-time shiftworkers could be required to work in a 24 hour period. In contrast, cl 28.3(d) would operate to limit the number of shifts that full-time shiftworkers could be required to work. Under cl 28.4(c), the shifts for both part-time and full-time shiftworkers may extend for up to twelve hours. The restriction in cl 28.3(d) is likely to have been included because of concerns for the amenity of employees and their health and safety. It is improbable that such concerns would not extend to part-time shiftworkers.

93    Fifthly, Aerocare’s submission that a construction of cl 28.3(d) of the Award as applying to part-time shiftworkers is precluded by the practical consequences relies upon its construction of the word “shift”. As will be seen in the next section of these reasons, I reject Aerocare’s construction of that word. I therefore reject Aerocare’s submission concerning the practical consequences.

94    For these reasons, I conclude that cl 28.3(d) of the Award applies to part-time shiftworkers. As Aerocare’s PSEs would be part-time shiftworkers under the Award, cl 28.3(d) would apply to them.

The fourth issue: whether cl 28.3(d) of the Award operates to prohibit employers from requiring employees to work split-shifts

95    The Unions submit that cl 28.3(d) of the Award would prohibit Aerocare from requiring its PSEs to work split-shifts. Aerocare submits that, properly construed, cl 28.3(d) imposes no such prohibition. Each party appeals to the language, context and purpose of the provision.

96    At this stage, it is worth repeating that cl 28.3(d) of the Award provides:

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

97    I will proceed by summarising the submissions before proceeding to consider them.

98    Aerocare contends that cl 28.3(d) of the Award does not prevent an employer from requiring part-time shiftworkers to work split-shifts because, firstly, where the clause refers to “more than one shift”, it refers only to the types of shift described in cl 30.3, being “early morning”, “afternoon” and “night shift”. Aerocare submits that this construction is consistent with the ordinary meaning of “shift” as a “relay or change of workmen”, usually in teams (Oxford English Dictionary), or “the portion of the day scheduled as a day’s work when a factory, etc, operates continuously during the 24 hours, or works both day and night” (Macquarie Dictionary).

99    Aerocare submits that the construction of “shift” in cl 28.3(d) of the Award as referring to a type of shift is reinforced by the opening words, “Except at the regular change-over of shifts”. It submits that when an employee moves from one kind of shift to another kind of shift there is the capacity for two “shifts” to be worked in one 24 hour period and that is what cl 28.3(d) aims to prevent, except at the regular changeover of shifts when this will often arise and is permitted. Aerocare submits that use of the phrase “in each 24 hours”, rather than “in each day”, supports this construction. Aerocare also submits that cl 30.1(c), which defines a “change of shift” as “the transfer of an employee from a shift in the roster pattern to another shift in the same roster pattern”, supports its construction. It also relies upon cll 30.2(c), 30.5 and 30.6 of the Award.

100    Aerocare contends, alternatively, that a split-shift is a single shift with a period of non-work in the middle. A split-shift is rostered as one shift and worked by an employee as one shift. Aerocare argues that just as a meal break within a shift does not convert one shift into two, there is no reason why another period of non-work in a split-shift should have any different effect.

101    Aerocare observes that cl 11.4(a)(iii) of the Award specifically provides that part-time employees work at least four consecutive hours on any shift. It submits that the words “consecutive” and “on any shift” would be superfluous if split-shifts involving two or more periods of non-consecutive work are not permitted. It submits that while the Award, in cll 11.4(a)(iii) and 28.2(c), specifies when hours are to be worked “consecutively” or “continuously”, such words are absent from cl 28.3(d) and the concept of a shift.

102    Aerocare submits that a contrary construction of cl 28.3(d) of the Award is “entirely unworkable”. It argues that if, for example, a part-time employee worked a five hour shift finishing after 6 pm on one day, the employee would be “precluded” from working any shift the following day that did not finish after 6 pm. Aerocare argues that it cannot have been intended that the Award would operate in such a prescriptive manner.

103    Aerocare submits, for these reasons, that cl 28.3(d) of the Award does not prohibit employers from requiring employees to work split-shifts.

104    The Unions submit that “shift” in cl 28.3(d) cannot be understood as referring to “kinds of shifts”. They submit that cl 30.3 merely provides that if ordinary hours within a shift commence or finish at particular times of the day, then a loading is payable.

105    The Unions submit that each paid period of work in a split-shift is “one shift” within cl 28.3(d). They submit that, accordingly, when an employee is required to work a split-shift, the employee is required to work “more than one shift” in a 24 hour period. They submit that a “shift” in cl 28.3(d) must be understood as the period of work between the identified start and finish times on a roster created in accordance with the arrangement for ordinary hours agreed under cl 28.4(a) and otherwise complying with the Award.

106    The Unions submit that cl 28.3(d) is intended to operate as a control on the way ordinary working hours for shiftworkers may be arranged, and that to read the Award as contended by Aerocare would render the protection to employees in the shift rostering system contemplated by cl 28.3(d) meaningless. Employees could be rostered to perform work for any number of non-contiguous periods of any duration broken by periods of unpaid non-work time as dictated by the employer. An employee could be required to be available to the employer and away from family and social commitments for 12 hours in a day, but only be paid for a fraction of those hours.

107    The Unions also submit that when other modern awards permit split or broken shifts, they do so expressly. Such awards commonly contain express limitations upon the number and duration of split-shifts and provide for the payment of penalties to compensate for dislocation and the inconvenience of working split-shifts. They submit that the absence of such provisions suggests that cl 28.3(d) would prohibit Aerocare from requiring PSEs to work split shifts.

108    Having summarised the parties’ submissions, I will proceed to consider them. At this point, I should reiterate that the way this case has been conducted means that the case is not concerned with whether Aerocare’s employees are in fact “required” to work more than one shift in a 24 hour period. The precise interaction of cl 28.4(a) (which provides that the arrangement of ordinary working hours must be by agreement with the majority of employees or individual employees) and cl 28.3(d) was not argued and does not arise for determination. My analysis proceeds without reference to the terms of the 2012 Agreement and the 2018 Agreement, which appear to reflect an agreement to work split-shifts. I make no comment as to any effect of those Agreements.

109    I have found that Aerocare’s PSEs would be part-time shiftworkers covered by cl 28.3(d) of the Award if it applied. Although Aerocare’s draft declarations define “split-shifts” in a specific way, it is enough, for present purposes, to treat the split-shifts that Aerocare uses as comprising of two paid periods of work within a 24 hour period split by a period (not being a meal break) when the employee is not working and not paid.

110    The question that must be answered is whether cl 28.3(d) of the Award would prevent Aerocare from requiring its PSEs to work split-shifts.

111    The question must be answered in two stages. The first stage is to construe cl 28.3(d) of the Award. As the Award covers employers and employees throughout Australia in the airline operations industry, determination of the proper construction of the clause must take into account the broad range of shifts and shift patterns that may be worked. The second stage requires the application of that construction to the shifts worked by Aerocare’s PSEs. At times, the parties’ submissions tended to conflate the two stages, so that they relied upon Aerocare’s shifts and shift patterns to promote their own constructions of the clause. It is necessary, however, to consider each stage separately, and in turn.

112    At the first stage, it is necessary to determine what the Commission, when it made the Award, meant by the phrase “…an employee must not be required to work more than one shift in each 24 hours” in cl 28.3(d), including what the Commission meant by “shift “and “one shift”.

113    The word “shift” is not a defined term in the Award. The Award uses the word inconsistently and in various contexts. It is used to refer to a particular category of employee, namely shiftworkers (cl 11.4(c)); shift types for both shiftworkers and day workers (cll 28.2(g), 30.3); continuous shiftwork, in the sense of work carried out by consecutive shifts of employees (cl 28.3(a)); and ordinary hours of work for a shiftworker (cll 11.4(a)(iii), 28.4(a)). In fact, in cl 28.3(d) itself, the word “shifts” refers to the type of shifts worked by continuous shiftworkers (and perhaps other shifts where there is regular movement from one to another), whereas the word “shift” appearing later in the clause may have a broader meaning.

114    Aerocare’s first submission is that a “shift” in cl 28.3(d) of the Award is a reference to one of the four shift-types described in cl 30.3, namely “early morning shift”, “afternoon shift” and two types of “night shift”. I do not accept that submission for the reasons that follow.

115    Clause 28.3(d) of the Award applies to all shiftworkers (who are distinguished from day workers). Shiftworkers may be part-time or full-time, and continuous or non-continuous. The Award does not prescribe that the only types of shifts that shiftworkers can work are those described in cl 30.3. To the contrary, cl 28.4(a) provides that the arrangement of ordinary working hours must be by agreement between the employer and the majority of employees, or with individual employees. Clause 28.4(b)(iii) provides that the matters on which agreement may be reached include rosters which specify the starting and finishing times of the working hours.

116    Accordingly, the types of shifts that shiftworkers may work are not restricted to the “early morning shift”, “afternoon shift” and the two types of “night shift” described in cl 30.3 of the Award. Clause 30.3, for example, has no application to shifts that commence after 7 am and finish before 6 pm. The purpose of cl 30.3 is merely to describe the shifts in respect of which a loading must be paid, not to define the shifts referred to in cl 28.3(d). Clause 28.3(d) is, on its face, protective of all shiftworkers, and cannot be seen as intended to exclude from its operation all those who do not work an “early morning”, “afternoon” or “night” shift. I therefore reject Aerocare’s submission that the word “shift” in cl 28.3 refers only to the types of shifts set out in cl 30.3.

117    Aerocare’s alternative submission is that the word “shift” in cl 28.3(d) of the Award refers to “a single rostered shift with one identified start time and one identified finish time”, and that a spilt-shift must be regarded as “one shift” because it has that character. The Unions contend that a “shift” is a period of work, which is not broken by any unpaid breaks other than meal breaks. The Unions submit that a split-shift comprising of two periods of work is two shifts.

118    Some general observations may be made about cl 28.3(d) of the Award. It imposes a restriction upon that which employers would otherwise be permitted to do, namely require employees to work more than one shift in each 24 hour period. That restriction is subject only to an exception at a regular change-over of shifts. The issue raised by the parties concerns the extent of the restriction. The extent of the restriction is affected by the meaning and the breadth of the words “shift” and “one shift” in the clause.

119    In order to determine the meaning of the words “shift” and “one shift” in cl 28.3(d), it is necessary to consider a number of other clauses of the Award that may impact upon their meaning. These include:

    Clause 11.4(a)(iii), which provides that “an employer is required to roster a part-time employee for a minimum of four consecutive hours on any shift”.

    Clause 11.4(a)(ii), which requires that part-time employees must be paid for such hours.

    Clause 11.4(c)(ii), which provides, relevantly, that “part-time shift workers will be rostered in accordance with clauses 28 and 30”.

    Clause 28.4(b)(iii), which provides that the matters on which agreement may be reached include “rosters which specify the starting and finishing times of working hours”.

    Clause 29.2(b) and (c), which provide that non-continuous shiftworkers must be allowed an unpaid meal break no later than five hours after commencing an ordinary shift.

    Clause 30.2(a), which provides that “shiftwork rosters must specify the commencing and finishing times of ordinary working hours of the respective shifts”.

120    I do not think it is useful to start with the dictionary definitions of the word “shift” cited above at [98]. These definitions refer to shiftwork resembling continuous shiftwork as defined in cl 28.3(a) of the Award. While Aerocare submits that the application of cl 28.3(d) is confined to full-time shiftworkers, it has not submitted that the meaning of “shift” in cl 28.3(d) is confined to continuous shiftwork. Any such submission would have been untenable. The word “shift” is used in cl 28.3(d) to convey a broader meaning.

121    The word “shift” in cl 28.3(d) of the Award is used in association with “work” and must refer to a “shift of work” or a “work shift”. As clause 28.3(d) is intended to apply to continuous and non-continuous, and part-time and full-time, shiftworkers, “shift” must have a general meaning that applies to each of these categories. At its most general, “shift” must mean a “period of work”, and “one shift” must refer to “one period of work”. For present purposes, it is only necessary to determine the qualities and characteristics of, and qualifications upon, that one period of work for part-time non-continuous shiftworkers.

122    Some of the qualities and characteristics of, and qualifications upon, a “shift” for part-time shiftworkers can be discerned from various clauses of the Award. Under cl 11.4(a)(iii), a shift for a part-time shiftworker must be for a minimum of four consecutive hours. Under cl 30.2(a), the commencing and finishing times of the ordinary working hours of a shift must be specified in a roster. Under cl 11.4(a)(ii), an employee must be paid for at least the hours worked in a shift. It may be seen from these provisions that “one shift” for a part-time shiftworker is one period of paid work of at least four consecutive hours where the starting and finishing times of the ordinary working hours are to be specified in a roster.

123    The expression “split-shift” is not found in the Award. The use of that expression by Aerocare implies a single shift split in two and, in that sense, is self-serving. It is more useful to refer to the situation where a roster specifies a single starting time and a single finishing time, but where there is a period of paid work of at least four consecutive hours followed by an unpaid non-work period and then another period of paid work. Does the unpaid non-work period take the rostered hours outside the description of “one shift” for a part-time shiftworker?

124    If the unpaid non-work period consists of an unpaid meal break provided for under cl 29.2(b) of the Award, then such rostered hours would remain within the description of “one shift”. The very concept of a “meal break” is a break within a single shift.

125    However, if the employer sets a roster that requires an employee to have another unpaid non-working period, the position may be different. Aerocare’s position is that it makes no difference because, as with a meal break, the single starting time and single finishing time specified in the roster shows that there is a single shift.

126    The first difficulty with this argument is that it would mean that an employer could dictate what is “one shift” simply by the way it describes the periods of work in the roster. 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. This would reduce the concept of “one shift” in cl 28.3(d) to a matter of form over substance.

127    Clause 28.3(d) of the Award is designed to protect the amenity and health and safety of part-time and full-time shiftworkers. If Aerocare’s construction is accepted, an employer could require an employee to work whatever number and pattern of split-shifts is chosen by the employer (subject perhaps only to any specific agreement to the contrary), an upper limit of 12 hours for a single shift and a requirement of at least four consecutive hours of paid work. Further, Aerocare construes “12 hour...shifts” in cl 28.4(c) as twelve hours of actual work, so that a split-shift could incorporate as “one-shift” a number of paid and unpaid periods over a 24 hour span. The protective purpose of the provision would be substantially eroded if it is construed such that an employer can require part-time shiftworkers to work split-shifts by simply calling them one shift.

128    I do not accept Aerocare’s submission that the language of cl 11.4(a)(iii), which requires that a part-time employee be rostered “for a minimum of four consecutive hours on any shift” assists its case. Aerocare argues that similar language such as “consecutive hours” would have been used in reference to the concept of a “shift” in cl 28.3(d) if that provision was intended to prohibit split-shifts. Further, Aerocare argues that the express inclusion of the words “consecutive hours” indicates that, absent that qualification, a shift need not consist of consecutive hours. However, cl 11.4(a)(iii) is, if anything, against Aerocare’s construction. The clause indicates that a shift will have a number of consecutive hours. Therefore, the idea of consecutive hours is inherent in the concept of a “shift” as that expression is used in cl 28.3(d).

129    Aerocare points out that the Award provides expressly that the hours of day workers, both full-time and part-time, are to be worked “continuously” (cl 28.2(c)), but that there is no similar express provision in relation to shiftworkers. However, as I have said, cl 11.4(a)(iii) of the Award imports the idea of consecutive hours into cl 28.3(d). I do not consider that the absence of express words can be construed as an omission made deliberately in order to indicate that part-time shiftworkers can be required to work split-shifts. In light of cl 11.4(a)(iii), it seems more likely that there would have been an express provision permitting split-shifts if that was intended.

130    As a matter of ordinary language, an employee who goes to work for a period of hours, who must then leave work for some hours, and then goes to work for another period of hours, would be understood to have worked two shifts. To regard such an employee as having worked only one shift seems quite artificial. I consider that split-shifts do not fall within the natural and ordinary language of cl 28.3(d) of the Award.

131    The Unions contrast awards which specifically provide for split-shifts with the Award which does not. They submit that it is permissible to construe one award by reference to the contents of another, since the Commission can be assumed to have attempted to achieve consistency. I was not referred to any authority in support of that proposition. However, in McNamara v Consumer Trader and Tenancy Tribunal (2005) 221 CLR 646, the High Court considered an attempt to construe one statute by comparing the drafting of a different statute. The plurality said at [40]:

It would be an error to treat what was said in construing one statute as necessarily controlling the construction of another; the judicial task in statutory construction differs from that in distilling the common law from past decisions.

(Citation omitted.)

132    I do not understand the plurality in McNamara to have suggested that no assistance can ever be derived from the drafting of another statute. It may, for example, at least indicate an alternative way that a provision could have been expressed to achieve a particular result. In this case, I accept that the Commission could have expressly provided for split-shifts in the Award if that was what it intended. That conclusion, however, does not depend upon the terms of other awards, but is simply a matter of common-sense.

133    In my opinion, “one shift” for a part-time shiftworker under cl 28.3(d) of the Award is one period of paid work that must be rostered for at least four consecutive hours. It remains “one shift” if it is broken by an unpaid meal break, but not if it is broken by another period where the employee is not working and unpaid. An employer covered by the Award cannot turn two shifts into one by simply designating a single starting time and a single finishing time in a roster. An employer cannot require an employee to work a split-shift, comprising two or more paid periods of work within a 24 hour period split by a period or periods (not being meal breaks) when the employee is not working and not paid. To do so would be to require the employee to work more than one shift within a 24 hour period.

134    Aerocare’s split-shifts for its PSEs are comprised of two paid periods of work within a 24 hour period split by a period (not being a meal break) when the employee is not working and not paid. If the Award applied, Aerocare could not require its employees to work split-shifts.

The fifth issue: Whether Aerocare’s PSEs are entitled to overtime rates or recall penalties in respect of the second period of a split-shift

135    The third declaratory order sought by Aerocare involves questions of whether PSEs are entitled to overtime rates or recall penalties in respect of the second period of a split-shift. Aerocare submits that these questions “would seemingly only arise if Aerocare was correct regarding declaration 1 and the proper construction of clause 28.3(d) of the Award.” The Unions also contend that these questions arise “in the event that the employee is required to work a second non-contiguous period of work on the same day”.

136    I have concluded that under the Award, an employer cannot require an employee to work split-shifts. I have not decided that a split-shift cannot be worked, although each period of work within a split-shift will be one shift, and must, therefore, consist of at least four consecutive hours. It may have remained relevant to consider the issues of overtime rates and recall penalties for the second period of work in a split-shift. However, in view of the common position taken by the parties, I will refrain from doing so.

137    For the reasons I have given, the declaratory orders sought by Aerocare cannot be made. The proceeding must be dismissed.

Associate:    

Dated:    25 January 2019