A recent Fair Work Commission decision has clarified that building and construction companies who do not run consecutive shifts may be liable to pay their civil construction workers overtime instead of shift work penalties.
Atlus Traffic Pty Ltd recently applied for approval of the Atlus Traffic (NSW & ACT) Enterprise Agreement 2019 (“Agreement”),1 which (in its initial form) did not pass the better-off overall test (“BOOT”).
The Building and Construction General On-Site Award 2010 (“Award”) defines shiftwork, for the purpose of the civil construction sector, as follows (emphasis added):
shiftwork means any system of work in which operations are being continued by the employment of a group of employees upon work which another group had been engaged previously.
Under the Award, to be considered ‘shiftwork’, the rostering of shifts in the civil construction sector requires a rotation of shifts in accordance with the above definition. When considering the Agreement, the Commission noted that Atlus Traffic engages a number of civil construction employees on nightshifts on projects or allocated work that do not have continuous shift coverage.
It was determined that these employees, under the Award, were not ‘shiftworkers’ in accordance with the provisions of the civil construction sector in the Award, and those employees would therefore be entitled to overtime rather than shiftwork penalties under the Award. The difference in definitions between the Agreement and Award created a BOOT issue, which Deputy President Saunders invited Atlus Traffic to address in an undertaking.
What does this mean for employers?
Employers covered by the Award should note the difference in how shiftwork penalties apply to employees in the civil construction sector and in the ‘general building and construction’ and ‘metal and engineering construction sectors’ (as defined in the Award). In the civil construction sector, an employee is only a shiftworker if there are a continuous rotation of shifts (or, as stated by the Commission, ‘continuous shift coverage’) on the specific project. Civil and construction workers who are not shiftworkers as defined by the award may therefore be entitled to overtime payments, depending on their hours of work.
Employers who are covered by other modern awards should also check the relevant shiftwork provisions to satisfy themselves in relation to when shiftwork penalties will apply. This may include any employer currently negotiating an enterprise agreement, who should check their agreement’s shiftwork provisions against the relevant award to minimise potential BOOT issues.
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1 Atlus Traffic (NSW & ACT) Enterprise Agreement 2019  FWCA 5941.