In 2021, the Fair Work Commission rejected a proposed enterprise agreement seeking to pay night workers the night shift rate instead of overtime when the work is not preceded or continued by another shift (D & D Traffic Management Pty Ltd [2021] FWC 1287).

Leave to appeal this decision was later refused by a Full Bench of the Fair Work Commission [2021] FWCFB 4197).

An appeal was then held before the full Federal Court, which was dismissed.

The advice in this article remains current. We are monitoring the progress of this matter and may update this article once it is finalised. We encourage you to review this article regularly for further updates.

There are 3 shifts in the civil construction sector:

• day shift: any shift starting on or after 6am and before 10am
• afternoon shift: any shift starting at or after 10am and before 8pm
• night shift: any shift starting at or after 8pm and before 6am.

Employees in the civil construction sector can only be engaged as shiftworkers if work at their specific jobsite will be carried out by employees of the same employer over at least two consecutive shifts.

To calculate civil construction shift rates, use our Pay and Conditions Tool.

Example: Dayworkers in the civil construction sector

Repair to a major road in South-Western Sydney requires continuous traffic management for a period of at least 12 months.

Bob won the contract to provide daily traffic management between 9pm and 5am for the duration of the project. Another company will be continuing the work for the remaining shifts.

Even though the hours fall within the night shift hours, Bob's employees working these hours aren’t shiftworkers. This is because the work is continued by employees of another business.

Bob’s employees are entitled to their ordinary hourly rate or the applicable overtime rate for time worked.

Example: Shiftworkers in the civil construction sector

Bob is also contracted to provide traffic management services for bridge maintenance in North Sydney. Work is contracted from 5am to 8pm.

Employees at this jobsite work either the night shift from 5am to 12:30pm or the afternoon shift from 12:30pm to 8pm.

Employees working on either shift are shiftworkers. This is because:

• the hours fall within the shift definitions of the Building Award
• the work of one group of employees is being continued by another group at the same jobsite.

The employees are entitled to the relevant shift penalty rate for time worked.

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