The Full Federal Court orders Standby Duty to be Paid as “Work” and Included in Average Work Hours
Corporate Air Charter Pty Ltd v Australian Federation of Air Pilots [2025] FCAFC 45
The Full Court of the Federal Court has dismissed an appeal by Corporate Air Charter Pty Limited, holding that pilot standby time is counted as “work” and is required to be counted towards an average of 38 hours per week.
The case arose, as reported in our newsflash of 14 November 2023,[1] when a pilot employed by Corporate Air Charter in South Australia claimed to be entitled to paid overtime as a result of being rostered on for standby duty. The pilot, Ms Pulaska, alleged that while she was on standby, she was required to be contactable and was also required to be available to report to work, and that this should be counted towards her “hours of work”.
Clause 15.2 of the Air Pilots Award requires that for all operators complying with the Award, ordinary hours of work must not average more than 38 hours per week.
In holding that the word “work” in the phrase “ordinary hours of work” included reserve or standby duty, the Full Court noted:
1. the pilot’s employer issued directions about what the pilot could do during standby duty including that she could not be affected by alcohol;
2. the pilot was not able to engage in activities that she would otherwise engage in on her days off; and
3. the pilot was “significantly impacted” by standby duty.
The Court was of the view that the fact the pilot was under “a number of directions” from her employer during standby duty supported the conclusion that standby duty was work.
Corporate Air Charter had submitted that Civil Aviation Order 48.1n and an exemption issued by CASA, treated standby duty as “neither duty nor not-duty”. The Full Federal Court accepted this but held:
[W]hatever that may mean in the context of the Order itself, it cannot mean that a flight crewmember who is on stand-by duty, as referred to in the Award, is not required to comply with the requirement that they remain available to attend for flight duty, or to comply with directions of their employer which are reasonably necessary to give effect to the purpose of stand-by duty.[2]
The Full Court also noted that excluding standby from the definition of work would “lead to some surprising and undesirable consequences” including the possibility of rostering pilots on “permanent standby from Monday to Friday from 6am to 8pm and on Saturday from 6am to 6pm”.
On these bases, the Court held that standby duty is to be counted as work and is limited to 38 hours per week.
In considering the averaging of hours, the Court held that:
Although the inclusion of that word in cl 15.2 suggests that it was intended that averaging over some period should be permitted, the result is unavoidable where none of the Award, the Order or the Exemption provides a specified period of time over which that “average” is to be calculated. A consequence of our conclusion is that the maximum number of hours per week is 38 hours, and rostered stand-by hours worked beyond the minimum number of hours must be remunerated.[3]
The Full Court’s decision creates a real issue for operators who roster pilots in accordance with the Award. Operators who roster pilots in accordance with the Award arrangements should carefully review the decision and their rostering practices to ensure pilots are rostered on for a maximum of 38 hours per week, including standby duty.
Still unsure how the decision impacts your organisation? Please contact our office below for advice tailored to individual circumstances.
[2] FCAFC 45 at [45].
[3] FCAFC 45 at [62].
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