By Charles Power
If you request or require your employee to perform work over a particular period, you will trigger an obligation to pay the employee for the hours she or he works.
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.
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. Therefore, you may not be obliged to pay wages for the time when these activities take place.
However, if you direct an employee to attend a place of employment for a period of time and to be available to provide service at that place as required by you, you will be obliged to wages for that work.
Similarly, if you require 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 you, the activity will be more likely to be found to be work.
Examples are where employees are required to be at work at a particular time to engage in briefings or training.
Where such activities are voluntary, it may be that employees engaging in them are not working. However, where the employee attends the activity at your direction, this is work.
In CFMMEU v Broadspectrum Australia Pty Ltd (2017) the Fair Work Commission (FWC) ruled that compulsory training attended by an employee in what would have otherwise have been overtime hours, was work for the purposes of the relevant enterprise agreement.
The enterprise agreement did not define “work” or “training”. The FWC ruled that because the training was critical to the operations of the employer and was compulsory, it was work.
In CFMMEU v Peabody Energy Australia PCI Mine Management Pty Ltd (2019) the FWC ruled that a 15-minute period prior to the commencement of a ‘prestart meeting’ was work or time worked. During this period the employees were transported via the company’s vehicles from an administration building at the front of the mine to in-pit crib rooms to attend a pre-start meeting, with payment for employees commencing at 6.00am/pm.
The employer effectively required all employees rostered on a shift to be at the main administration building at 5.45am/pm and to activate systems to test their fitness for work and record their attendance. They also completed other tasks preparatory to commencing operational work such as filling water bottles, accessing lockers and collecting protective equipment. Employees also received directions by a number of means in relation to the work they would be performing on the shift.
The FWC ruled that once employees are directed to board a particular vehicle to travel from one part of the workplace to another part, they are working.