It is generally accepted that employees will need to take steps to prepare themselves before commencing work, and that this preparation time is unpaid. However, there are circumstances where employees are required to perform work-related tasks prior to commencing work, or during their break. For example, applying and removing personal protective equipment ("PPE").
The question arises...what constitutes paid working time, and what remains unpaid preparation time?
Preparation vs performance
In a case against Bindaree Food Group Pty Ltd ("Bindaree"), the Fair Work Commission ("FWC") considered the difference between preparation for work and performance of work. The employee, Mr Jay Seo, argued that he did not enjoy his full 30-minute break because of the time he was required to spend applying and removing his PPE. He also claimed that he should be paid for the time spent applying and removing his PPE at the commencement and end of his shift.
In circumstances where the employee was required to be clothed and ready for work, the FWC originally found that the task of applying and removing his PPE was a reasonable and necessary incident of being prepared to work, and was not required to be paid for by the employer.
On appeal, the Full Bench of the FWC found that the time spent by the employee in applying and removing his PEE during his break was payable by his employer as it did not constitute a break from work. Bindaree required the employee to spend part of his unpaid meal break performing a "substantive task" before and after he could "prepare or partake in a meal or engage in any other activity of his choice".
The Full Bench considered that under the construction of the relevant modern award, it was intended that the employee receive the full benefit of a 30-minute break. Therefore, any interruption of that break by work-related tasks should be considered the performance of work and paid accordingly.
Due to a jurisdictional issue the Full Bench did not consider the issue of applying and removing PPE before and after the employee's shift.
Key considerations and lesson for Employers
When determining when work commences and whether an employee should be paid for activities in preparation for work, an employer should consider the following.
- Have the terms of any applicable industrial instrument or an employee's employment contract been reviewed? These documents will likely contain terms in relation to the payment of wages and when work is performed.
- Is the task the employee is required to undertake a substantive task? The more substantive the task, the more likely it will be required to be paid.
- Are the activities performed by the employee prior to the commencement of operational duties to provide a benefit to the employer? If so, they may be considered performance of work and therefore payable.
- Is the period of time required by the employer unreasonable? The longer a task takes, the more likely it is that it will need to be paid.
Employers should also take steps to clearly define what is meant by "performance of work" in an employee's employment contract or any enterprise agreement. Without clear terms, employers may become exposed to claims of underpayment for time spent in preparation for work that may be considered time worked.