Air Pilots Award 2020 = Payment rates for overtime and standby considered Australian Federation of Air Pilots v Corporate Air Charter Pty Ltd [2023] SAET 63
The South Australian Employment Tribunal has recently considered issues relating to payment of overtime and rostering under the Air Pilots Award including whether overtime was payable where pilots are rostered to perform more than 38 hours of duty per week including standby duties.
The case was commenced by a pilot, Ms Pulaska, who was seeking to recover unpaid wages for performing rostered standby duties in excess of 38 hours per week.
The operator, Corporate Air Charter Pty Limited, contended no overtime was payable as the Air Pilots Award did not provide for payment of any overtime, that standby duties in excess of 38 hours per week were not ‘work’ for which payment was required, and that it was entitled to average hours worked over a 6 month period.
In considering these arguments the Tribunal held:
Stand-by duty is “work” performed by pilots under the Air Pilots Award 2020 and must be included when calculating the average of 38 hours per week under clause 15.2;
As the Award does not state the hourly overtime rate, any overtime is to be paid at a minimum of the normal hourly rates under the Award; and
An agreement to average hours of work over a period of not more than 26 weeks pursuant to section 64 of the Fair Work Act 2009 can only be made with “an award/agreement free employee”.
Standby Duty
The finding that standby duty was ‘work’ within the meaning of the Award and must be included in the 38 ordinary hours of work per week was based on evidence that the pilot would often receive calls whilst on standby and would check weather, carry out flight planning and answer queries about payloads and new routes. The Tribunal held that standby was ‘unambiguously identified as one of the pilot’s duties of employment under the Award’ and is paid word under the Award. This finding may require further consideration at an industry level, but in the meantime Award operators should review their rostering practices to ensure hours of work including standby do not exceed an average of 38 hours per week.
Averaging of Hours
In our view, the finding that there can be no averaging of weekly hours for employees subject to the Award is incorrect. The Award states hours of work ‘must not average more than 38 hours a week’ and section 63 of the Fair Work Act permits awards to provide for averaging of weekly hours. In our view where the employer and employee have agreed to the averaging arrangement in writing, it will be enforceable. The case provides an important reminder of the need to advise employees of any period over which hours will be averaged and obtain the employees’ consent to the averaging period in writing.
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