Swissport Australia Pty Ltd v Australian Municipal Administrative Clerical and Services Union (No 3)

Swissport Australia Pty Ltd sought a declaration from the Fair Work Commission that split-shifts, which involve working two separate periods of work in a day with a period of non-work in between, are not prohibited under the Airline Operations – Ground Staff Award 2010 (the Award) for its part-time employees, and that such split-shifts do not constitute overtime or recall work. The Australian Municipal Administrative Clerical and Services Union (the Union) opposed the application, contending that the Court lacked jurisdiction and that the Award prohibits employers from requiring employees to work more than one shift in each 24 hours. The Union further argued that this prohibition applies to part-time shiftworkers as well, and thus Aerocare cannot require its part-time employees to work split-shifts.

The Court had to determine whether the Award permits employers to require part-time employees to work split-shifts. The key issue was the interpretation of clause 28.3(d) of the Award, which prohibits employees from being required to work more than one shift in each 24 hours. The Court considered whether this clause applies to part-time employees and, if so, whether it prohibits split-shifts. The Court also had to decide if split-shifts constituted overtime or recall work under the Award.

The Court found that clause 28.3(d) of the Award does not explicitly prohibit part-time employees from working split-shifts, but it does generally prohibit employees from working more than one shift in each 24 hours. The Court held that split-shifts, where the first period of work starts and the second period ends within the same 24-hour period, do not constitute working more than one shift in each 24 hours. However, the Court concluded that the application was an attempt to bypass the process for varying the terms of the Award and was thus an improper use of the Court's jurisdiction. Consequently, the application was dismissed.

The Court's decision clarifies that while split-shifts are not prohibited by the Award for part-time employees, the application to seek such a declaration was dismissed on jurisdictional grounds. The Court did not grant the declarations sought by Swissport Australia Pty Ltd, and the application was dismissed.