D&D Traffic Management had been seeking an FWC non-union deal to only pay its night workers shift loadings, instead of higher overtime rates, even if they didn’t take over from a preceding shift.
The AWU had objected to D&D’s agreement approval application, saying it failed the Better Off Overall Test by allowing work after 6pm that did not fit the “shiftwork” definition in the Building and Construction General On-Site Award, and would only attract a 30% loading instead of award-prescribed overtime penalty rates.
“It’s a huge win, one that’s five years in the making,” AWU National Secretary Dan Walton says.
“The bosses didn’t want to pay overtime rates to their workers, by wrongly claiming the workers are shiftworkers.
“In what is a hugely casualised workforce, companies have been short-changing their casual workers by treating them as if they were on a regular timetable.
“If you work irregular, unsociable hours overnight, employers should pay you night rates. They can’t just pretend the workers are shiftworkers.”
D&D had argued that the nature of civil construction work covered by the BCG Award was project-based, as traffic control work moved with civil projects as roads were closed, and construction took place on roads or bridges and other civil works.
But in February FWC Deputy President Bryce Cross held that D&D’s non-union agreement failed the BOOT after finding that, while the BCG Award “operates on an assumption that there will be a rotation of shifts unless agreed otherwise by employees”, the agreement did not.
He said there “cannot be a rotation of shifts across an entire enterprise that engages workers at various different worksites in different cities and regions”.
He invited D&D to provide an undertaking that overtime rates “will apply to work that is not shiftwork”, but the company refused, citing “serious cost and other implications”, and lodged an appeal.
This week the FWC Full Bench rejected that appeal and reaffirmed Deputy President Tony Saunders’ 2019 finding, that shiftwork rates only apply under the BCG Award if employees continue the work of others on the same project, for the same client and contract.
The bench said the award’s shiftwork definition required the continuation of operations by a group of employees on work which another group of employees had engaged in previously. This connoted “at the least, a two-shift system of operations”.
It said the “night-shift” definition in the agreement, however, did “not contain this requirement for the continuation of work at all” and “simply provides that any work shift starting on or after 6pm and finishing on or before 6am is a night shift”.
“Thus, it would permit a ‘stand-alone’ night shift worked within those temporal parameters to be paid at the 30% shift loading even if there is no preceding shift worked anywhere in the enterprise in question.”
As the proposed D&D deal’s base rates were “only very marginally above” the BCG Award’s, the bench said this “would necessarily be a major detriment under the agreement for night workers which would cause it to fail the BOOT”.