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The Full Bench of the Fair Work Commission (FWC) lately decided that the time spent by an worker placing on and taking off private protecting tools (PPE) throughout their unpaid meal break wants to be paid by the employer.
The choice highlights the danger that staff should be paid for any substantive process required by the employer in what could in any other case be thought of unpaid time. It additionally demonstrates the worth of a properly-drafted set-off clause when staff are paid above the award.
Mr Seo is employed as a manufacturing line employee, whose position is to put together meat for packaging on a processing line. Mr Seo raised a dispute along with his employer that he was not receiving a full 30-minute unpaid meal break required underneath clause 15.1(a) of the Meat Industry Award 2020 (Award).
Under this clause, topic to different preparations mutually agreed between related events, an worker is required to be given a 30-minute unpaid meal break earlier than finishing 5 hours’ work. Any worker referred to as upon to work throughout a meal break is entitled to be paid at additional time charges for that interval.
My Seo claimed he was not receiving his full break as a result of his employer required him to full a spread of actions, together with placing on and eradicating varied objects of PPE throughout his break. Mr Seo utilized to the FWC underneath a dispute decision process and sought to be again-paid at additional time charges for the work performed throughout his unpaid breaks, being 10 minutes work per day, over two years.
First occasion choice
At first occasion, Deputy President Asbury discovered the time spent by Mr Seo placing on and eradicating his PPE was not work for which he was entitled to cost underneath the Award or his contract of employment. In the choice, the Deputy President discovered the worker was correctly compensated for these actions as a result of he was paid greater than the minimal award charges and his contract allowed extra advantages to be set off in opposition to any declare for unpaid award entitlements.
Mr Seo sought and was granted permission to enchantment the choice.
On enchantment, the Full Bench rejected the employer’s argument that the aim of the unpaid break clause was to present a 30-minute break free from “productive work”. The Full Bench discovered there was nothing within the textual content of the Award that implies breaks are solely from “productive work” and that this may seemingly lead to inequitable outcomes between tough occupations.
The Full Bench present in Mr Seo’s favour, stating that if an employer requires an worker to undertake substantive actions earlier than or after their break, then an affordable time spent endeavor these actions is “work” and not half of the worker’s unpaid break. However, the Full Bench stated this case needs to be contrasted with many different staff in several workplaces who select to “wash their arms or take away an merchandise of PPE earlier than consuming on a meal break” or staff endeavor meal break actions that could possibly be thought to be trivial.
The Full Bench additionally appeared to try to restrict the potential for related claims in different industries, similar to constructing and building, making clear that this choice was not coping with a requirement that an worker “placed on a security helmet, security glasses and a hello-vis vest on their means out of the crib room on the finish of a meal break”.
The Full Bench agreed with the Deputy President that Mr Seo’s contract contained a clause that allowed the employer to set off remuneration paid to him underneath the contract in opposition to a declare for entitlements underneath clause 15.1 of the Award. However, whether or not the quantities paid to Mr Seo have been ample to set off his entitlement to be paid additional time for time labored throughout his meal break trusted a spread of issues.
Findings would want to be made in regards to the quantity of time it took (or ought affordable of taken) Mr Seo to undertake the break actions to decide whether or not he was entitled to any again pay. The matter was remitted again to the Deputy President for dedication.
Mandatory steps in a dispute decision process should be adopted
Separately, the Full Bench discovered the FWC didn’t have jurisdiction to decide whether or not the worker was entitled to cost for time placing on and taking off PPE earlier than and after his shifts. Mr Seo sought to agitate this extra declare for the primary time on the listening to of the matter at first occasion and the Deputy President discovered the employer “didn’t dispute” the broadening of the dispute and subsequently handled the matter.
On enchantment, the Full Bench discovered the employer didn’t consent to the FWC arbitrating this side of the dispute (as required underneath the dispute settlement process within the award) and that “greater than full silence” is required to point out consent to arbitration.
Lessons for employers
Employers ought to guarantee their present practices relating to break instances meet the necessities in any fashionable awards or enterprise agreements that apply to them to keep away from publicity to claims for unpaid additional time.
Employers ought to think about whether or not they’re requiring staff to undertake any substantial duties or actions throughout their unpaid breaks earlier than they start work and after they end work. Any substantial duties required by the employer could also be thought of “work” and staff could also be entitled to be paid for this time underneath an industrial instrument.
Employers counting on overpayments of minimal wages to compensate for underpayments of fashionable award entitlements also needs to guarantee they have acceptable contracts and mechanisms in place to safeguard in opposition to potential claims.
This publication doesn’t take care of each necessary subject or change in regulation and just isn’t supposed to be relied upon in its place for authorized or different recommendation which may be related to the reader’s particular circumstances. If you have discovered this publication of curiosity and would love to know extra or want to acquire authorized recommendation related to your circumstances please contact one of the named people listed.