| [2020] FWC 6468 [Note: The Deputy President’s determination is quashed insofar as it concerns the first and second disputes - refer to Full Bench decision dated 1 June 2021 [2021] FWCFB 2691] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Mr Jay Seo
v
Bindaree Food Group Pty Ltd
(C2020/5464)
DEPUTY PRESIDENT ASBURY |
BRISBANE, 7 DECEMBER 2020 |
Alleged dispute about any matters arising under the modern award and the NES; [s146] – tasks required to be undertaken during unpaid meal breaks – donning and removing personal protective equipment is not work – no entitlement to additional payments.
[1] Mr Jay Seo (the Applicant) applies to the Fair Work Commission (the Commission) to deal with a dispute pursuant to s.739 of the Fair Work Act 2009 (the Act) under the Dispute Resolution Procedure in clause 34 of the Meat Industry Award 2020 (the Award). The Respondent was named in the application as Bindaree Food Solutions. An entity known as Bindaree Food Group Pty Ltd (the Respondent) responded to the application, and after seeking the views of the parties, the application was amended to that this entity was named as the Respondent. The dispute concerns whether activities involving donning and removing personal protective equipment before and after unpaid meal breaks, is work, for which Mr Seo is entitled to be paid.
[2] The Respondent operates a business at Burleigh Heads – Bindaree Food Solutions – which predominantly engages in wholesale/retail sale of fresh meat and meat products. The business is a “meat retail establishment” as defined under the Award. The Applicant is employed as a production line worker, whose role is to prepare meat for packaging on a processing line.
[3] The matter did not resolve at conciliation and Directions were issued for the filing of material. Bindaree Food Group consented to the Commission arbitrating the dispute under the dispute settlement procedure in accordance with clause 34.5 of the Award, and the matter was heard by Video Link using Microsoft Teams on 16 September 2020.
[4] At the hearing, the Applicant appeared and gave evidence on his own behalf. Bindaree Food Group was represented by its People and Culture Manager Ms Nerrida Kyle and Senior Executive Mr R Bussian. Mr Todd Newton, Chief People Officer for the Respondent appeared and gave evidence on its behalf.
[5] The Award provisions relevant to the dispute are as follows:
“14. Ordinary hours of work and rostering
14.1 Ordinary hours and roster cycles
(a) The ordinary hours of work for a full-time employee must not exceed 38 hours per week or an average of 38 hours per week not exceeding 152 hours in 28 days.
(b) The ordinary hours of work for a part-time or casual employee will be in accordance with clause 10—Part-time employees and clause 12—Casual employees.
(c) The ordinary hours of work for a casual employee must not exceed 38 hours in any week.
(d) The ordinary hours of work must be worked continuously at the discretion of the employer, except for meal breaks or other breaks prescribed in the award.
(e) The maximum number of ordinary hours which may be worked on any day or shift must not exceed 10 hours.
(f) Any hours worked outside the spread of hours listed must be paid at overtime rates.
…
14.5 Meat retail establishments (including employees of meat processing establishments and meat manufacturing establishments engaged in retail and/or wholesale sales of fresh meat and/or meat products and any ancillary products)
(a) Ordinary hours for these establishments are worked between:
Days |
Spread of hours |
(b) Payment for ordinary hours on weekends will be in accordance with clause 24.3.
14.6 Methods of arranging ordinary working hours
(a) Clause 14.6 applies to all establishments.
(b) Matters upon which agreement may be reached include:
i. how the hours are to be averaged within a work cycle established;
ii. the duration of the work cycle for day workers provided that such duration does not exceed 3 months;
iii. rosters which specify the starting and finishing times of working hours;
iv. a period of notice of a rostered day off which is less than 4 weeks;
v. substitution of rostered day off;
vi. accumulation of rostered days off;
vii. arrangements which allow for flexibility in relation to the taking of rostered days off; and
viii. arrangements of ordinary hours overall.
15.1 Unpaid meal breaks
(a) No employee will work for longer than 5 hours without a minimum 30 minute unpaid meal break. Any alternative arrangements between the employer and the employee must be by mutual agreement between the parties.
(b) Any employee called upon to work during meal break will be paid at overtime rates for that period.
34.1 Clause 34 sets out the procedures to be followed if a dispute arises about a matter under this award or in relation to the NES.
34.2 The parties to the dispute must first try to resolve the dispute at the workplace through discussion between the employee or employees concerned and the relevant supervisor.
34.3 If the dispute is not resolved through discussion as mentioned in clause 34.2, the parties to the dispute must then try to resolve it in a timely manner at the workplace through discussion between the employee or employees concerned and more senior levels of management, as appropriate.
34.4 If the dispute is unable to be resolved at the workplace and all appropriate steps have been taken under clauses 34.2 and 34.3, a party to the dispute may refer it to the Fair Work Commission.
34.5 The parties may agree on the process to be followed by the Fair Work Commission in dealing with the dispute, including mediation, conciliation and consent arbitration.
34.6 If the dispute remains unresolved, the Fair Work Commission may use any method of dispute resolution that it is permitted by the Act to use and that it considers appropriate for resolving the dispute.
34.7 A party to the dispute may appoint a person, organisation or association to support and/or represent them in any discussion or process under clause 34.
34.8 While procedures are being followed under clause 34 in relation to a dispute:
(a) work must continue in accordance with this award and the Act; and
(b) an employee must not unreasonably fail to comply with any direction given by the employer about performing work, whether at the same or another workplace, that is safe and appropriate for the employee to perform.
34.9 Clause 34.8 is subject to any applicable work health and safety legislation.”
[6] Section 595 of the Act deals with the Commission’s power to deal with disputes and is in the following terms:
“595 FWC’s power to deal with disputes
(1) The FWC may deal with a dispute only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.
(2) The FWC may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following ways:
(a) by mediation or conciliation;
(b) by making a recommendation or expressing an opinion.
(3) The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.
Example: Parties may consent to the FWC arbitrating a bargaining dispute (see subsection 240(4)).
(4) In dealing with a dispute, the FWC may exercise any powers it has under this Subdivision.
Example: The FWC could direct a person to attend a conference under section 592.
(5) To avoid doubt, the FWC must not exercise the power referred to in subsection (3) in relation to a matter before the FWC except as authorised by this section”
[7] Sections 738 and 739 of the Act set out provisions in the relation to the Commission dealing with disputes as follows:
“738 Application of this Division
This Division applies if:
(a) a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; or
(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or
(c) a contract of employment or other written agreement includes a term that provides a procedure for dealing with disputes between the employer and the employee, to the extent that the dispute is about any matters in relation to the National Employment Standards or a safety net contractual entitlement; or
(d) a determination under the Public Service Act 1999 includes a term that provides a procedure for dealing with disputes arising under the determination or in relation to the National Employment Standards.
739 Disputes dealt with by the FWC
(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.
(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:
(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or
(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.
Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).
(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.
(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.
Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.
(6) The FWC may deal with a dispute only on application by a party to the dispute.”
[8] As a Full Bench of the Commission observed in CFMEU v North Goonyella Coal Mines Pty Ltd 1 the Commission may deal with a dispute only on application of a party to the dispute (s.739(6)); is prohibited from exercising any powers limited by the dispute settlement procedure (s.739(3)); may arbitrate only if the agreed dispute settlement procedure permits it to do so (s.739(4)); and must not make a decision that is inconsistent with the Act, the enterprise agreement and any other applicable fair work instrument (s.739(5)). As previously noted, the parties have consented to the Commission arbitrating the dispute as permitted by clause 34.5 of the Award.
EVIDENCE
Applicant’s evidence
[9] The Applicant has worked at the Respondent’s operation at Burleigh Heads since September 2018. While the Applicant’s ordinary hours have changed several times, he now generally works from around 2:00 pm until around 10:10 pm, Monday to Friday. In his Form F10 Application the Applicant said that the issue in dispute was that he was not receiving a full thirty minute unpaid meal break because of requirements to don and remove personal protective equipment prior to commencing and completing his break. The relief sought by the Applicant is a ruling from the Commission that these activities are work for which he should be paid and that breaks should exclude these activities.
[10] The Applicant said that from September 2018, until 5 July 2020, he received a 30 minute unpaid meal break each shift, and from 6 July 2020, this break was extended by 10 minutes paid at ordinary rates “as an above-award condition”. His evidence was that since commencing work with Bindaree Food Group, he had been required to perform unpaid work immediately before his shift, immediately after his shift, and during his meal breaks.
[11] The Applicant outlined a breakdown of a “typical shift” as follows:
(a) I arrive at work ~10-15 minutes before my shift start time.
(b) I walk up to the 3rd floor and get my cut-resistant gloves, white uniform shirt, white uniform pants, hair net & beard net (if necessary), and ear plugs.
(c) I walk to the locker room and start wearing my white uniform shirt and pants, rubber boots, bump camp, hair net, etc. These are part of my work duties and I think I should be table to sign on before doing this, but I must start doing it 5-10 minutes before my ordinary start time.
(d) I then walk down a long hallway, down a flight of stairs, down another long hallway, down another flight of stairs, then line up to wash my rubber boots, wash my hands, enter the production area, and then I can sign in.
(e) We must sign in ~5 minutes before the start of the shift so we have enough time to then wear our gloves etc and be at our stations at our starting time. One time I signed in right on time at the start of my shift (after already spending ~5 minutes wearing PPE, walking, and washing rubber boots etc) and was told by a Line Supervisor (Cam) that we must get over to the line by our shift start time. This was confirmed by the Shift Manager (Duane).
(f) After signing in a few minutes before my shift start time, I then line up to put on nitrile gloves, plastic arm sleeves, plastic apron, and walk to wherever I will be working.
(g) During the shift, we will be on the production floor wearing:
i. White uniform shirt & white uniform pants
ii. Rubber boots
iii. Blue nitrile gloves, plastic arm sleeves, plastic apron
iv. Hair net (& beard net, if necessary)
v. Plastic bump cap & ear plugs / ear muffs
vi. Cotton gloves / cut-resistant gloves, if necessary
(h) We work in a regulated industry (food processing) so wearing these items, and washing the non-disposable ones (such as bump camp & rubber boots), are integral to performing the principal activities of our job.
(i) At some time (usually 7:30pm), 3-4 lines stop at the same time (~8 workers per line) and all of those workers are told to go on our break (recently because of the pandemic situation, lines are being sent on break separately, so there is less congestion).
i. It is the company’s policy that the break starts at this point (when we are told to go on our break), and that we must be “back at our stations ready to go” by the end of the meal break (previously 30 minutes, now 40 minutes).
1. If we take longer than that, our Supervisor will tell us that we are late back from the break. I have been told I was late even though I think I went back early (just not early enough), and I’ve seen a casual worker sent home because he came back 10 minutes later than everyone else (which in my opinion was on-time).
2. I clarified this issue with HR Manager Paula, HR Officer Bronwyn, Plant Manager Steve Dennie, Business Manager Chris, Shift Manager Duane, and Line Supervisor Cam, who all told me this is when the breaks start and finish.
(j) After being told to “go on our break”, we must then remove our nitrile gloves, plastic arm sleeves, and plastic apron, and throw them into a bin.
(k) We walk to the exit at the front of the production floor where we must walk through a boot scrubbing bay to remove any large pieces of meat from our boots. This is only 1 lane so we must wait for others to stop and scrub their boots. There is a side door where we can take a short-cut, but doing so results in disciplinary action.
(l) We walk into the hand-washing bay where we must wash our hands. There are 8-10 taps, but usually several are broken, and there are 4 hand dryers but it is rare for any more than 2 dryers to be working, so we usually have to line up to dry our hands.
(m) We then walk to the boot-washing bay where we must wash our rubber boots. There are 4 hoses for washing out boots, so we have to line up to use them.
(n) If we use knives, we must rinse our knives and mesh glove.
(o) We then walk up a flight of stairs to the next floor, go through a door, walk down a long hallway, walk up another flight of stairs to the next floor, then walk down another long hallway to reach the locker room.
(p) In the locker room we can then remove our white uniform shirt (and hair net, bump camp, etc), and at this point we are able to enter the break room or otherwise go on our break.
i. It is company policy that wearing our white uniform shirt is not permitted in the break room or the bathroom.
ii. It is company policy that wearing our white shirt, white pants, rubber boots, or bump camp off-site is not permitted.
iii. It is company policy that we must store these items in designated areas (rubber boots on designated hooks and not on the floor, other items in our locker if they are clean, white shirt and pants to be returned to laundry bin at end of shift so they can be laundered in “special food-safe chemicals”), and failing to do so results in disciplinary action and “toolbox talks”.
(q) From being told to “go our break” [sic] at the line until arriving in the locker room we have usually spent about 5 minutes doing duties that we are required to do before entering the break room or otherwise going on our break.
(r) If we want to leave the site during our break, we must also remove our white uniform pants and rubber boots, and store them correctly.
(s) For example, when the line stops and we are told to go on our break, if we then walk straight out the front to the building while wearing our nitrile gloves, plastic arm sleeves, plastic apron, rubber boots, white shirt, white pants etc, we would be disciplined.
(t) Even though we have a 30-minute break (now 40 minutes), we must plan to start going down early because we must do the same duties in reverse before entering the production floor, and be back at our station waring nitrile gloves, plastic sleeves & apron, hair net, etc, 30 minutes (now 40 minutes) from when the line stopped.
(u) So really we are doing about 10 minutes of work (about 5 minutes each way) during our break.
(v) 1 reason why it takes so long is the distance between the production floor and the locker room, another reason is that many people must line up to use a small number of facilities such as hand dryer and boot-washing hoses, but the reason why we must perform these duties before entering the break room / production area is because of regulatory requirements and company policies.
(w) At the end of our shift, we are told we can sign off. We must sign off at the current time, and failing to do so results in disciplinary action. But even after signing off we are not free to just walk out of the building. We must still spend 5 minutes doing those same work duties (hand-washing, washing rubber boots, washing knives, washing mesh gloves, putting our white uniform shirt and pants in laundry bins, hanging our boots on designated hooks, disposing of hair nets, beard nets, ear plugs etc in bins, and storing our bump caps in our locker) before we are free to leave the building. Failing to do any of these duties results in disciplinary action. I think we should be able to sign off after doing all of these duties, because they are not optional, are part of our job, and take time to perform.
[12] The Applicant stated that the white shirt, rubber boots, hairnets and other PPE are not just a uniform, as they cannot be worn from home, out to the car park, or in relation to some items, in the break room. He further stated the items are not just for the protection of employees but are to protect the product.
[13] His evidence was that Mr Josh Larken, Quality Assurance Officer, advised employees at a toolbox talk that they must wear the white uniform shirt and pants in production and place them in the laundry bins in the locker room at the end of the shift because they are cleaned with “special, food-safe chemicals” as per the regulatory requirements for this industry, and that for that reason the white shirt and pants, and rubber boots, could not be worn off-site.
[14] The Applicant also stated that Mr Brendan Germany, Quality Assurance Officer, also advised the employees they couldn’t wear the white uniform shirt in the break room. He stated the employees were provided with the same advice during their Induction, and there had previously been a sign on the break room door prohibiting wearing the uniform shirts in the break room. The Applicant also said that the Respondent’s Quality Assurance Officer, advised the employees that they must put on a hairnet before wearing their white uniform shirt in accordance with company policy, and failure to do so would result in disciplinary action.
[15] The Applicant stated that various Quality Assurance Officers and Supervisors had reinforced the requirement for employees to keep their bump caps and other items clean whenever going on break, and to put them in their lockers at the end of their shift and not elsewhere. He further stated it had been reinforced that employees must store their boots on the designated hooks and not leave them on the floor, and to put their ear plugs in a bin.
[16] At the hearing, the Applicant conceded that he is now paid for the additional 10 minutes as part of a total of 40 minutes break time (as stated by Mr Newton in his evidence) but maintained that this had not always been the case. The Applicant also stated that employees are performing the same “work” tasks before and after their shifts and were not being paid for that “work”, “even though we are now being paid for it during the breaks”. 2
[17] The Applicant raised concerns regarding the Respondent’s calculation of his pay rate as against the Award, however this matter was addressed in subsequent correspondence from the Respondent as detailed below in Mr Newton’s evidence. In relation to the question of whether the activities were private activities, the Applicant said in his oral evidence that:
“…They say that the activities are private and shouldn't be paid for. And I'm not saying that I should be paid for putting my lunch box in the fridge or something like that, which are private activities. I'm saying that the activities that I've outlined are not private activities, they're essential work duties. And in point 9 of the respondent's submission they say that those tasks are essential for the work that I'm doing. They also mention the Peabody Energy case, point 14 of their submission. And it says, "Where the employer requires an employee to be at work at a specified time", et cetera, "where those duties are not a private activity but provide benefit for the employer, the activity will more likely be found to be work." I'd like to say that although the items that we're talking about, the white shirt, the rubber boots, those items, although they're referred to as PPE and uniform, they're not really a uniform or PPE, they're worn to protect the product from the employee. They don't have the company logo on them, they're washed in special chemicals. We're told that the reason we wear them is to protect the product from physical, chemical and microbiological contamination. It's really to protect the product from the employer to comply with the industry regulations. And if we don't wear them the employer cannot profit from the work that we're doing. They wouldn't be able to have employees not wearing these items.
So the employer is the one benefiting from us doing this work, so we should be compensated for that work. So it is work and it does take time to perform, and we're paid per hour of work that we do. So we should be paid for the time that we spend doing that work. And it's not about personal hygiene. They're not private activities. We don't have any choice over them. And it's not a case of we're on a salary and we're being told, like, you're being paid above award because you're expected to do a little work during your breaks. It's actually always been the company's view that this has never been work, at all so they couldn't have had that intention from the beginning. If that is a decision that this is work, this will be the company's first time to be aware that that is work and they will have to make some consideration from that time. So they would have to look at it retrospectively.
And most of the time that is taken - like, it's relatively simple activities but most of the time it takes up is due to the distance and the small number of facilities provided by the company. If they realised it was their responsibility they might streamline things and make it more efficient to cut their costs. But right now it's like they have like a - it's like free work being done, they don't have to worry about it, they don't have to make it more efficient, and we, the ones doing it, have no control over - like, I can't move the locker room or add, like another sink or refill the soap dispensers or whatever it is that is contributing to causing it to take more time.” 3
[18] The Applicant also tendered a copy of his employment contract. The Applicant had the following exchange with me in relation to clause 7 of the contract:
“Okay. Well, have a look at clause 7 of the contract and tell me what you have to say about that because it seems that clause 7 is saying that unless otherwise expressly stated that the remuneration under this contract is paid and received in full satisfaction of all remuneration and/or allowances of any kind whatsoever to which you may be lawfully entitled under the terms of any award or other industrial instrument. "Further, in the event that any claim is brought by you or on your behalf, the whole of the remuneration paid in accordance with the arrangement set out in this letter is intended to set - to be applied in satisfaction of any such claims." So what that means is that the company is asserting in the contract that if you're going to assert that you've been underpaid in accordance with an award or any other industrial instrument, they're entitled to apply the amount of any over-award payment to offset the alleged underpayment? Well, I'd say that about half of the time that I've spent working there I wasn't given any paper contract, at all, so I wasn't given such a term as that. So this would, at most, apply to about half the time that I've been working there. Also, I never signed that contract, if you look at the bottom. I just kept a copy of it. I didn't sign it and return it.
Right, so - - -? So I haven't agreed to that.
Well, then how are you working there? The contract that we had was just, you come here these hours a week, you get paid this much. We didn't have a paper contract, we just had a contract between us based on what was agreed between us at the company.” 4
[19] Ms Kyle put to the Applicant during cross-examination that the ten minutes paid break is not paid for the time spent donning and removing personal protective equipment but rather as an above-award condition in the same way the Employer pays above award rates. The Applicant agreed with this proposition. 5 The Applicant also conceded that the time he allocated to the tasks are “averages”, however he stated it was a conservative estimate and noted the biggest portion of time would be attributed to the start of shift PPE and hygiene tasks.6 The Applicant accepted that these tasks and the time taken would vary depending on the person undertaking them.7 Further, the Applicant conceded that some of the items of personal protective equipment he is required to wear protect him but maintained that the main items including white shirts and rubber boots are “not really PPE”.8
The Respondent’s evidence
[20] Mr Newton stated in his evidence that the Applicant is engaged under Award terms and conditions, but with the exception that his wages include a “significant margin” over and above the Award rates, and a meal break of 40 minutes rather than the Award-stipulated 30 minute break. He confirmed that this means the Applicant is granted 10 minutes, paid at ordinary rates in addition to the unpaid thirty minute meal break .
[21] Mr Newton submitted a spreadsheet outlining the over-award margin paid to the Applicant, stating that it more than compensates the Applicant for the award conditions and wages, including a 10 minute “overtime component” regarding the activities which the Applicant describes as being “work”. Mr Newton stated that on the Applicant’s evidence, the additional tasks described by him took approximately 10 minutes to complete. Mr Newton therefore stated that the additional 10 minutes of time paid at ordinary rates, as included in the 40-minute break time, was sufficient to cover these tasks. He confirmed that the Applicant is effectively paid at ordinary time rates for the time spent performing his PPE and hygiene tasks, as part of the over-award arrangements that apply at the plant.
[22] Mr Newton stated that the Respondent supplements the award entitlement of a 30 minute unpaid break, by granting an additional 10 minutes of paid time. He confirmed that if the Applicant completes the PPE and hygiene tasks within that 10 minute period, the Applicant receives the whole of his 30 minute unpaid break free from any “work” as prescribed under the Award, and is not “called upon to work” during that 30 minute period.
[23] Mr Newton confirmed the Applicant’s is paid an amount of 5.26% above the Award rate which equates to approximately $8.37 each day, and $2176 each year, not including any hours worked as overtime. He said that if the Applicant were paid 10 minutes of “overtime” as requested at the Award rate, this would equate to approximately $5.24 additional per day, and over the course of the year would amount to $1362. Mr Newton submitted that on this evidence, the Applicant is better off under the conditions provided by the Respondent by more than $800 when compared to what he would be paid under the Award.
[24] Mr Newton also responded to various matters raised by the Applicant, as follows. Mr Newton said the walk down the hallway and down the stairs takes, on average, approximately 90 seconds to complete. Putting on PPE mentioned by the Applicant takes approximately one minute. The PPE and clothing which is required to be worn by the Applicant is not soiled in the manner as might occur on the slaughter floor or boning room of an abattoir. He said the meat being processed by the Applicant is usually boned and/or sliced prior to arriving at the plant, and the processing work involves the last stage of preparing and measuring the meat for placement into packaged lots for wholesale and retail sale.
[25] Scrubbing large pieces of meat off the work boots takes approximately 10 minutes. The Applicant is not required to walk in the extreme environment of a slaughter floor or boning room, and the incidence of large pieces of meat on his boots would be much lower than occurs in, for example, a meat manufacturing establishment. Employees are required to walk along a short corridor in the course of arriving at the anteroom.
[26] Mr Newton said much of the time described by the Applicant is referable to minor delays caused by temporary maintenance and staff movement issues. The Respondent has repaired broken taps and hand dryers as occurs from time to time in the anteroom and has implemented an upgraded maintenance preventative plan to ensure that the facilities are constantly maintained to the appropriate standard. His evidence is that these actions will eliminate a substantial part of the time delay described by the Applicant, and notes such delays were never more than a temporary interruption.
[27] Mr Newton added that the Respondent is implementing strategies to stagger break times with one-minute gaps, to assist with the flow of employees thorough the anteroom. He said there are seven lines capable of production, ranging from 6 to 125 packs per minute, and for the operation to maintain efficiency, all employees on each line must be punctual and ready to commence work at designated times. If the number of employees moving from the production area at any one time is reduced by seven eighths to one seventh of the present volume, allowing one-minute for that number to move through, there is “effectively no delay” which can be caused to the Applicant by queueing at any of the wash facilities on leaving the production area.
[28] Mr Newton contended that there is no realistic or practical basis on which the time taken by an individual employee to perform the task of washing and removing or donning PPE, during the process of walking from the production area to the meal room, can be measured for the purpose of assessing a payment. He said that time is interspersed with any number of personal activities including making phone calls, socialising, or other activities undertaken by an employee before reaching the meal room. He stated that separating out the amount of time involved in the tasks as referred to the Applicant would be almost impossible and would be a “negligible amount far less than 10 minutes”.
[29] Under cross-examination by the Applicant, regarding the ‘purpose’ of the PPE prescribed to be worn by the employees, Mr Newton stated:
“Sure but most of that, those items are not really PPE, are they? They're to protect the product from the employee?---Are you specifically referring to the plastic apron and plastic arm guard?---Well, and like the whites which are washed in special food safe chemicals, the white shirt, the white pants, the rubber boots?---As is the nature of working in a food manufacturing business, as you're aware, we produce food product for human consumption here domestically and internationally and it's a part of doing business that, you know, the integrity of our product is upheld. We take steps to best protect the business and the continuation of supply into our customers and - through audits and the like, that this is a requirement. So it's as much food safety, yes, but also part of personal protective equipment, not to soil clothes, street clothes, and when you exit the site, that you exit the site in a clean, fit manner to return back into the community, yes.
So it's not really just for protecting the employee then, it's to protect the product. And as you said, it's an essential part of the job, an essential part of the industry, it's a necessary part of what we do. Then how can you say that it's a personal activity, it's a private activity? How is it not a work activity?---Yes. Our position with that is, you know, working in a - as I've explained, part of working in this environment, being part of the food manufacturing industry. For all industries employed under the award, team members are required to present to work, fit, ready, able at the start of their shift, and in doing so there are requirements around the PPE and clothing that is required to protect employees, protect the business, to make food safety, health and hygiene programs procedures. But yes, it's as much to protect employees, as well. The boots, for example, as well, the environment, slippery floor, you know, to ensure that there's correct footwear in the - that's donned and worn.
Well, can I wear my own boots or can I wear my own - - -?---They're company supplied. I think those boots are issued free to each team member as a part of the daily service. We launder your clothes, we launder - we provide full PPE. That's all at, you know, the expense of the business to help protect our team each day in the workplace.
But having said that, I can't choose to do my own, can I? I can't choose to do my own laundry? I've been told that you use special food safe chemicals that you're required to use. And then I wouldn't be able to use my own. I mean, you say that it's to prevent me from soiling my clothes but I don't really have that choice, do I? So it's not - that's not really the reason, is it?---No, it is the reason. But this is the position we take. It's very standard across the meat industry that this is - the food industry, for that matter. That's right, that this is a service provided, the clothes, PPE for team members to safely carry out their job, and yes, you know, we're undertaking an audit today and there's very strict hygiene quality controls that are expected on the site, and that being that such attire is provided to team members to complete their duties. And so we can complete the work safely in line with customer specifications so we can continue an ongoing supply into those markets” 9
[30] Under cross-examination regarding the purpose of the above-award rates of pay, Mr Newton stated:
“What's the reason that they're above the award rate? As part of our attraction to promoting our business. We want to be seen as an employer of choice. You know, a big part of this is cultural care. You'll see our new values, company values and a big part of that is cultural care. And we want to be seen as an employer that, you know, offers more; sustainability for our team, we value the efforts of all our team so we try to do little things where we can, within reason, to remain competitive with our competitors but also look after our workforce, including yourself.
So it's not specifically like - kind of like when someone will get a salary that's above award and you would tell them, you're expected to do this work or this overtime, but you're not getting paid for that but your pay is above award so it covers it? It's not specifically for that reason, is it? I don't understand that question, sorry. So you - - -
Like, you're not paying above award - - -? (Indistinct) award rate which is just one of the attractions and benefits of being a team member of our food group. You know, the applicable award provisions apply in relation to overtime and other provisions, public holiday rates, et cetera, as per the award. But you know, the hourly rate plus the additional ten minutes on the break are just, you know, initiatives we've put in place to, you know, help our team, help the business, help attract, which it's a pretty competitive marketplace out there so - - -” 10
[31] In response to questions from me, Mr Newton confirmed that employees only have the one designated lunch area, being the canteen, and a smoking area next to the canteen. He confirmed that employees are also provided the option of leaving the site during their break. 11
Applicant’s submissions
[32] The Applicant did not file a formal outline of submissions in this matter, however as part of his statement of evidence the Applicant made the following submissions. The Respondent’s position is that all of the duties required to be performed by employees after leaving the line and before returning from the break are unpaid and must be performed in the employees’ own time.
[33] The Applicant submitted that this fact had been reinforced by Supervisors, Shift Managers, HR Managers, Plant Managers, HR Officers, Business Managers, and Leading Hands, as outlined in his statement of evidence. The Applicant submitted, however, that these duties should be paid for the following reasons:
(a) They are integral to performing the principal activities of [the employees’] job, partly because [they] work in a regulated industry where [they] are required, and partly because of company policies.
(b) They are not optional. Not performing any of these duties results in disciplinary action, toolbox talks, or dismissal.
(c) [The employees] are paid at an hourly rate, and these duties take time to perform.
[34] The Applicant submitted that the break time should start at the time when the employees are free to enter the break room or otherwise go on their break (that is, after removing their white shirt in the locker room, or at least at the time when they enter the locker room), and that the employees should have until the end of their break time to start putting on their white shirt or entering the locker room.
[35] The Applicant submitted that these outlined tasks should be paid for at the start and end of the employees’ shifts, and that they should be able to sign on before starting to perform the PPE and hygiene tasks, and to sign off after completing them (that is, at the time the employees are free to leave the site).
[36] In oral submissions at the hearing, the Applicant summarised that the tasks the employees are required to perform on their break are an essential part of their work for the industry, are not private activities, and the employees do not choose to perform them. He reiterated that the employees are not allowed to just walk out the front of the building and return at the end of their break, there are specific things they are required to do first. The Applicant reiterated that these tasks are also required to be performed at the start and end of the work day.
[37] The Applicant stated that the facilities available for performing the PPE and hygiene tasks are not streamlined, and there is a heavier burden on employees than there would be if the company acknowledged its responsibility to ensure they are made streamlined. The Applicant submitted that this burden and the company’s failure to ensure appropriate facilities supports the argument that the tasks are “work”.
[38] The Applicant further stated the that he has a contract providing that he will be paid per hour of work he performs. In this regard he referred to clause 7 of his employment contract, which provides that "the whole of the remuneration paid in accordance with the arrangements set out in this letter is intended to be applied in satisfaction of any such claim". The Applicant stated that this clause refers to remuneration paid in accordance with the arrangements set out, which he linked to clause 5 of the contract, providing that he is paid an hourly rate. The Applicant also stated that if he does ten minutes of work, then he should be paid for ten minutes of work. The Applicant confirmed that he does not seek payment for other activities such as driving to work or putting his lunch box in the fridge, only the work-related activities involving the personal protective equipment and hygiene tasks. He stated that in accordance with his contract of employment, if the employer is not paying the employees for these work tasks, the employer is not complying with the terms of his employment.
Respondent’s submissions
[39] The Respondent submitted that the Applicant is not, and has never been, entitled to the payment of overtime under clause 15.1 of the Award for the following reasons. The Applicant is engaged to perform meat processing work, in the context of “meat retail/wholesale operations”. The Applicant is required to don and remove PPE required for work health and safety and hygiene reasons, before and after commencing the meat processing work he is employed to perform. The Applicant is also required to perform certain hand and boot washing procedures, before walking to the place where he chooses to eat a meal or attend to his own affairs. The Respondent acknowledged the Applicant’s statement that this process takes him approximately 10 minutes to complete, but disputed that this satisfies the Applicant being “called upon to work during a meal break” within the meaning of clause 15.1(b) and thereby attracting an overtime payment.
[40] The Respondent also submitted that in accordance with Mr Newton’s evidence, the Applicant’s activities associated with personal protective equipment and hygiene activities as described, are all accommodated within an ‘over-award’ additional 10 minutes of paid time granted to the Applicant in excess of the Award-stipulated 30 minute break. As a result, the Applicant does receive a 30 minute unpaid break without any work duties required of him, and therefore the Commission should dismiss any claim made by the Applicant on this basis.
[41] The Respondent submitted that the first critical question for determination by the Commission is ‘what is the correct interpretation of the words “called upon to work during a meal break” as it appears in the context of clause 15 of the Award?’. In this regard the Respondent submitted this clause applies to every form of meat establishment covered by the Award, including abattoirs and meat manufacturing plants where slaughtering, boning, slicing and a range of similar tasks are routinely performed by employees. Accordingly, the Commission is presumed to have known when making the Award, that all employees covered and employed to engage in tasks of the nature performed by the Applicant, would be required to wear appropriate PPE and would be required to wash their boots, hands, and other body parts before entering and after leaving meat processing areas, for hygiene reasons. Similar conditions would apply to every food-processing or manufacturing workplace in Australia.
[42] The Respondent contended that the performance of these personal protective equipment donning and removal and hygiene tasks as described by the Applicant is an essential part of the meat processing, meat manufacturing and wholesale and retail sales functions covered by the Award. It noted however, there is no mention in the terms of the Award as to any separate allowance (either by way of time or money) being made for these tasks. It should therefore be inferred that the Commission was aware of these tasks being performed before breaks when it determined that a 30 minute break was reasonable and accommodates mandatory activities that occur in food-processing industries before and after the “work” for which the employee is engaged. The Award meal break provision should be taken as setting the length of the break from “processing work”, and not purporting to set the actual period of time an employee might sit in a lunch room completely free from any activities related to their work.
[43] It is only when the employee is required to perform productive work in a designated meal period that the employee is entitled to be paid for such work at overtime rates. In support of this submission, the Respondent cited the decision in Construction, Forestry, Maritime, Mining and Energy Union v Peabody Energy Australia PCI Mine Management Pty Ltd 12 where it was stated:
“[116] I accept that employees have a duty to be at work in sufficient time to undertake activities so that they are ready to start work at the specified start time. In very many industries it is common for employees to arrive at work before the specified start time and undertake activities such as signing on or registering their presence in the workplace, storing their personal effects in lockers, putting on uniforms or PPE, storing or consuming food and otherwise interacting with work colleagues, prior to commencing operational duties. The line between these activities and the commencement of work can sometimes be blurred. However, where the employer requires an employee to be at work at a specified time and the activity that the employee is undertaking before the commencement of operational duties is not a private activity but provides a benefit to the employer, the activity will be more likely to be found to be work. For example, employees who are required to be at work at a particular time to engage in briefings, training or similar activities, are working. Where such activities are voluntary, it may be that employees engaging in them are not working.”
[44] The Respondent submitted that where an employee works in a clean environment and is not required to wear PPE or perform other hygiene tasks before eating a meal, that employee will have the advantage of the full period of any provided break. It submitted however that in such a case, the allocated break might be reduced in length for that reason. It was further submitted that such a circumstance could never occur in relation to meat processing activities, and therefore clause 15.1 of the Award should not be taken as intending to provide a 30 minute break free from any work-related activity whatsoever. Accordingly, clause 15.1 of the Award should be interpreted as provided a “sufficient break away from work”, allowing an employee to undertake any tasks related to cleaning and removal of personal protective equipment while also allowing sufficient time to consume a meal or attend to any other personal business.
[45] The Respondent submitted that being required to attend to personal hygiene and personal protective equipment as a necessary part of being clothed and ready for work, and being suitably cleaned to attend in the meal room, are not “work” for the purposes of clause 15.1. Nevertheless, the Applicant is provided with 10 minutes paid time in addition to the Award-stipulated 30 minute unpaid meal break. The Respondent also submitted that on the Applicant’s evidence, this allowed sufficient time for the Applicant to deal with his cleaning and activities associated with personal protective equipment before having the benefit of a full 30 minute break without work.
[46] The Respondent further submitted the tasks described by the Applicant are necessary for him and all similar employees to be ready to commence the operational duties at their required starting time. These are not “work” tasks, but are private and personal activities and will take a different period of time on any given day, dependent on the circumstances that apply to that time. Donning PPE and being clean and ready to commence work is a requirement in all workplaces, including that an employee is ready and available to work at the commencement of their working time. The removal of PPE and soiled clothes prior to eating a meal is a matter of both comfort and hygiene, and is a personal activity which is part and parcel of the role of an employee in many industries, and are tasks usually performed after productive work has finished. These tasks do not equate to briefing, training or other work for the benefit of the employer.
[47] In oral submissions at the hearing, the Respondent reiterated that it provides a culture of care, where safety is paramount and accordingly personal protective equipment is provided not only for the benefit of the employer and market in the industry, but also for the protection of employees. There is a significant risk regarding machinery and the environment, and items of personal protective equipment are supplied to protect employees from these risks. Further, the Company provides above-award conditions in the form of pay rates and break times, which it is submitted evidences its culture of care.
[48] The additional paid 10 minutes of break time was incorporated from 5 July 2020. This benefit was not in response to any complaints made regarding tasks undertaken, but rather was the result of a review of the Respondent’s business. The Respondent also tendered an outline of the rates of pay (exclusive of super and shift allowances) paid to the Applicant throughout his employment confirming that the Applicant was paid above Award rates.
CONSIDERATION
[49] The dispute in the present case is a dispute arising under a modern award. It concerns the nature of work. There is no universally applicable definition of the term “work”. Whether an employee is entitled to payment for activities or tasks or whether those activities or tasks are work depends on a number of matters, not the least being the manner in which any relevant industrial instrument deals with payment for work and its definition and the employee’s contract of employment.
[50] It will usually be the case that where an employee covered by a modern award or other industrial instrument, is directed or required by an employer to be at the employer’s premises or at a particular location or locations where work is performed, for a particular period of time, to provide or be available to provide service for the employer, the employee is at work rather than carrying on private activities, and is entitled to payment.
[51] The question of whether the employer requires the service to be provided is relevant to whether an employee is working. A requirement can be direct or indirect. In some cases, because of the location or the context in which activities are undertaken, the issue of whether those activities are required by the employer or whether they are work may be vexed because the employee is put in a position where he or she has no real option but to perform certain duties. There are also cases where activities which would not generally be considered as work, may become so because of the location or the context in which they are undertaken.
[52] It is important to note that the dispute as articulated in the Form F10, and which the Respondent consented to have arbitrated by the Commission, concerns work during a designated meal break. It was only at the hearing that the Applicant sought to raise the issue of whether time spent donning and removing personal protective equipment at the start and finish of a shift, was also working. The Respondent did not object to the broadening of the dispute and for completeness I have dealt with all matters raised by the Applicant.
[53] I turn now to consider the activities and tasks identified in the evidence of the Applicant in the present dispute in respect of which determination is sought as to whether when performing such tasks, he is working. In doing so the context in which the activities or tasks are undertaken is important. The context is that the Applicant is working is in a meat processing establishment. The nature of the work and product produced requires stringent standards of hygiene. While it is true that many of the items of personal protective equipment worn by the Applicant are required to protect the product he is producing from contamination, that equipment also protects the Applicant.
[54] The evidence, which I accept, establishes that the floors of the workplace can become slippery. Particular kinds of boots are required to prevent employees from slipping. Employees are using knives and other implements to prepare the product and their boots and clothing can be exposed to meat and meat products. The environment in which the Applicant works, means that it is not reasonable or desirable that he provide his own clothing or boots and it is reasonable and arguably necessary, that these items are provided by the employer. In this regard I note that the Award at clause 20.3 provides for an allowance to be paid to employees in circumstances where the employer does not launder their outer work clothing. Regardless of the fact that the Respondent uses particular food safe chemicals to launder clothing, it is of benefit to employees that they are not required to wear or carry soiled clothing from the workplace in order to launder it. It is also open to the employer under the Award to opt to launder the clothing of employees rather than pay an allowance.
[55] Other items used by the Applicant such as a mesh glove and cut resistant gloves protect his hands while using a knife. Hair and beard nets serve the purpose of preventing hair from contaminating a product and from being contaminated with product which would probably not be a pleasant experience for employees. These items may also prevent employees’ hair from being caught in machinery. In short, it is reasonable and necessary for the Applicant to be required to wear all the personal protective equipment listed by him in his evidence, as much for his own personal protection and wellbeing as for the maintenance of hygiene standards for the product he is producing.
[56] In relation to the thirty minute unpaid meal break the Applicant is entitled to under clause 15.1 of the Award, I do not accept that the activities described by him in preparation for taking that break are work. The Applicant could not enjoy a meal break wearing boots and clothing which may be covered in meat or meat products. Neither would it be safe or hygienic for him to eat a meal wearing the items of personal protective equipment he is required to remove before entering the meal room. While the removal of the items maintains food safety standards for the Respondent, it also ensures employees can partake of a meal break without having to contend with soiled items of personal protective equipment, including clothing.
[57] In relation to donning items of personal protective equipment before commencing work, for reasons I developed in Construction, Forestry, Mining and Energy Union v Peabody Energy Australia PCI Mine Management Pty Ltd, there is a distinction between employees arriving at work in sufficient time to undertake activities such as donning personal protective equipment, and employees actually commencing work. I do not accept, as a general rule, that while donning personal protective equipment before commencing work, an employee is working.
[58] In the present case the employer does not require employees to be at work at a certain time to undertake activities associated with donning personal protective equipment. The employer requires the Applicant to be at work in sufficient time to be ready to work including wearing his personal protective equipment. The donning of personal protective equipment is a reasonable and necessary incident of the employee being prepared to work. Employees are not being briefed or trained or otherwise directed at the time they are undertaking these activities. They are not directed as to the order in which they don personal protective equipment or prevented from undertaking other activities – including engaging with work colleagues – while they are doing so. The personal protective equipment protects the integrity of the employer’s product but also the personal safety of the employee wearing it. Furthermore, the employer has the right under the Award to elect to provide laundered clothing to employees rather than paying them an allowance, and it is necessary that they leave such clothing at the workplace which in turn necessitates that they don the clothing before starting work.
[59] It is also reasonable and necessary for employees to remove the personal protective equipment at work before leaving the workplace. It would not benefit either the employer or employees if employees were required to wear soiled clothing home or to carry it home, particularly given the type of soiling that employees would ordinarily encounter in the Respondent’s workplace. I am also of the view that if the maximum time donning and removing personal protective equipment is ten minutes, then that is not an unreasonable requirement for employees at the commencement or completion of work. Further, I accept that the employer pays over the Award and has made reasonable attempts to minimise the effects of the requirements associated with donning and removing personal protective equipment on the private time of employees.
[60] There may be cases where the personal protective equipment required to be work by employees is unusually complex or related to a specialised task which is not ordinarily performed, so that while donning and removing such equipment employees could be said to be working. However, the tasks associated with donning and removing personal protective equipment described by the Applicant in the present case are not of this kind. It is also the case that the Applicant has introduced practices to streamline the pinch points at which employees may be queuing to undertake a particular task, such as at areas where they wash their boots.
[61] Further, the Applicant in the present case is working under the terms of a modern award which applies to him – the Meat Industry Award 2010. That Award prescribes minimum terms and conditions of employment and it is necessary that the Applicant be paid at least his minimum entitlements under that Award. The Applicant’s employment is also subject to an employment contract which provides him with benefits in excess of the minimum Award conditions. Relevantly, that contract of employment provides as follows at clause 7:
“Unless otherwise expressly stated, the remuneration payable to you under this contract is paid and received in full satisfaction of all remuneration and/or allowances of any kind whatsoever , to which you may be lawfully entitled under the terms of any award or other industrial instrument that may apply to your employment with the Company during the period that this contract remains in force.
Furthermore, in the event that any claim(s) is brought by you or on your behalf for payment of any such remuneration and/or allowance payable under any award or industrial instrument , the whole of the remuneration paid in accordance with the arrangements set out in this letter is intended to be applied in satisfaction of any such claim(s) and all amounts found to be lawfully payable , however they are described, before the Company is required to make any further payment to you in respect of such claim(s).”
[62] The Respondent submits, and I accept that it pays the Applicant in excess of the minimum award rates and provides him with paid period of ten minutes each day in addition to his unpaid thirty minute meal break with the result that the Applicant receives a meal break of thirty minutes uninterrupted. By virtue of clause 7 of the Applicant’s contract of employment, these additional benefits can be set off against any claim he may make for Award entitlements.
[63] I am also of the view that although the additional paid ten minutes was introduced in July 2020, it would not be appropriate to award back pay for the period prior to that date, given my conclusion that the tasks associated with donning and removing personal protective equipment are not work.
[64] For the above reasons, I determine that the time spent by the Applicant donning and removing personal protective equipment – before and after work and before taking a meal break – is not work for which he is entitled to payment under the Meat Industry Award 2010 or his contract of employment.
[65] If my conclusion on this point is wrong, I am also of the view that tasks undertaken by employees associated with donning and removing personal protective equipment at those times, are properly compensated for when the Award and the Applicant’s contract of employment are considered. Accordingly, I determine that the activities described by the Applicant in relation to the donning and removal of personal protective equipment are not work for which he is entitled to be paid an amount in addition to the amount he is paid under the Award and his contract of employment.
DEPUTY PRESIDENT
Appearances:
The Applicant on his own behalf.
Ms N Kyle and Mr R Bussian for the Respondent.
Hearing details:
16 September.
2020.
By video using Microsoft Teams.
Printed by authority of the Commonwealth Government Printer
<PR725069>
2 Transcript at PN47.
3 Transcript at PN57-59.
4 Transcript at PN68-70.
5 Transcript at PN109-111.
6 Transcript at PN113.
7 Transcript at PN114.
8 Transcript at PN123.
9 Transcript at PN151-154.
10 Transcript at PN158-160.
11 Transcript at PN163-170.