Sleepovers form no part of a shift under the SCHADS Award
The Full Federal Court on 20 March 2026 ruled that home care workers' sleepovers do not attract a 15% night shift loading.
In Fair Work Ombudsman v Jats Joint Pty Ltd [2026] FCAFC 25, Wigney, Shariff and McDonald JJ dismissed the Fair Work Ombudsman's (FWO) appeal, upholding Jats Joint Pty Ltd's construction of the Social, Community, Home Care and Disability Services Award 2010 (SCHADS Award). The court confirmed that a sleepover does not constitute "work" and does not form part of a "shift" for the purpose of triggering the 15% night shift loading under clause 29.3(b).
The dispute centred on Ms Kim Richards, a part-time Social and Community Services Employee Level 2 at Jats Joint. Between 27 January 2020 and 12 December 2021, Ms Richards slept overnight at a client's premises on 123 occasions. Throughout that period, Ms Richards did not work ordinary hours between 12.00 midnight and 6.00 am, Monday to Friday. Jats Joint did not pay her the night shift loading for ordinary hours she worked immediately before and/or after those sleepovers. An inspector of the FWO issued a Compliance Notice requiring Jats Joint to remedy this, and Jats Joint challenged that notice in court.
Under the SCHADS Award, a "night shift" is any shift that finishes after 12 midnight or commences before 6.00 am, Monday to Friday. Clause 29.3(b) entitles an employee who "works" a night shift to a loading of 15% of their ordinary rate of pay for the "whole of such shift." Clause 29.4 provides that shifts must be worked in "one continuous block of hours" that may include meal breaks and sleepovers. Separately, clause 25.7(d) entitles an employee to a flat sleepover allowance of 4.9% of the standard rate for each night on which they sleep over.
The FWO argued that a sleepover was not a break between shifts but formed part of the surrounding shift. The practical stakes of that argument were illustrated by two rostering examples considered by the court. In the first, Ms Richards was rostered to work from 2.00 pm to 10.00 pm and then sleepover at the client's premises. The FWO contended that, because the sleepover formed part of the shift, the shift in fact ended after midnight, thereby triggering the night shift loading for the ordinary hours she had worked. In the second, Ms Richards was rostered to work 2.00 pm to 10.00 pm, immediately commence a sleepover, and then work again from 6.00 am to 11.00 am the following day. The FWO contended she was entitled to the night shift loading for ordinary hours worked both before and after the sleepover, on the basis that the shifts and the sleepover constituted one continuous block of hours that both finished after midnight and commenced before 6.00 am. The FWO also contended that clause 29.4 operated as a definitional provision that incorporated sleepovers into the relevant shift.
The Full Federal Court preferred Jats Joint's construction. Clause 25.7(f) expressly permits an employer to roster an employee to "perform work immediately before and/or immediately after the sleepover period," signalling that the sleepover is distinct from a shift involving the performance of work. The court also noted the absence of any provision stating that a sleepover is to be "counted as time worked," contrasting this with one type of meal break and tea breaks, which the award expressly treats as such.
On clause 29.4, the court held that the provision is permissive rather than definitional. Its primary purpose is to ensure that shifts are worked in one continuous block of hours and to prevent meal breaks or sleepovers from automatically ending that continuous block and engaging the minimum rest break obligations under clause 25.4.
On clause 25.4, the court found that the award treats a sleepover as a "break" between shifts. While acknowledging that it may seem unnatural to regard a sleepover at a client's premises as a "break" in an ordinary sense, the court held that in the particular context of the SCHADS Award, which involves the provision of home care services, a sleepover is a rest period between ordinary hours of work, even though it is a period when the employee may be required to perform work.
The court acknowledged that the SCHADS Award's drafting "lacks clarity and precision," but found the text and context of the award as a whole supported Jats Joint's position.
