The High Court of Australia refuses special leave to appeal Full Federal Court decision that Standby Duty be Paid as “Work” and included in Average Work Hours

Corporate Air Charter Pty Ltd v Australian Federation of Air Pilots [2025] HCADisp 152

The Australian High Court has refused Corporate Air Charter’s special leave to appeal the Full Federal Court decision on the basis that an appeal would be “an inappropriate vehicle to consider the questions sought to be raised concerning nature of work and the distinction between work and availability to work”.

The case arose when a pilot employed by Corporate Air Charter (CAC) in South Australia claimed to be entitled to paid overtime as a result of being rostered on for standby duty. 

The Court found that because the pilot was under a “number of directions” from her employer during standby duty, such as needing to be available to report for duty within two hours of being contacted and not consuming alcohol during the standby period, that standby duty was considered paid work.

Where the Air Pilots Award 2020 (Award) applies, operators must ensure that a pilot’s “ordinary hours of work” must not average more than 38 hours per week (see clause 15.2) and this is now considered to include a pilot’s standby duty.

How should the industry and operators respond?

Operators throughout Australia, large or small, would no doubt be aware of the potential cost implications of this decision.  Award amendment to introduce a standby rate which reflects the level of obligations placed on pilots when they are on standby duty whilst also providing security for pilots around expected pay rates might benefit operators and pilots alike, and we understand at least one operator has made an application to vary the Award.

The treatment of standby time in other industries can also provide some guidance on a sensible path forward. Medical practitioners are required to be on-call with similar restrictions including remaining close to the relevant hospital and not being under the influence of alcohol while on-call.  The Medical Practitioners Award 2020, provides all medical practitioners, other than senior doctors, are paid to be on-call an allowance equal to 10% of their daily rate for each day on-call.  Senior doctors are to be available for reasonable on-call and recall duties and will remain on duty whenever the patient’s needs require it notwithstanding that their normal hours have expired. Senior Doctors are paid 10% of their annual base salary for these on-call services. 

Network Aviation have successfully satisfied the Fair Work Commission that the remuneration under their Enterprise Bargaining Agreement (which does not include a standby payment) satisfies the Better Off Overall Test (BOOT), on the basis of the high rates of pay and allowances under the Network EBA.  Operators who are paying their pilots above the Award may be able to satisfy the BOOT and similarly avoid further exposure.

Finally, operators need to consider what further practical implications this decision might place on pilots whilst on standby duty.  On one view, operators might feel that they now need to insist on standby pilots being on base even during their standby hours.  Operators in reaching this decision need to also consider the impact on the base dynamics of having likely underutilized pilots at the base on other staff, as well as possible fatigue impacts for standby staff.

Operators should also review their standby rostering in the context of these changes, especially noting the 38 hours per week maximum limit, now to include all paid rostered duty time.  If you are unsure as to how best to navigate, please do not hesitate to contact us for further assistance.

Adam Martin 
+61 3 9119 2585
adam.martin@nortonwhite.com

Alison McKenzie 
+61 3 9119 2535

alison.mckenzie@nortonwhite.com

Keira Nelson
+ 61 2 9230 9440
keira.nelson@nortonwhite.com