The question of when an employee is at work rather than carrying on private activities is critical when that employee is entitled to an hourly rate of pay.

Generally speaking, if you direct or require an employee to be at a particular location where work is performed at a particular time, and to provide or be available to provide services for you, then the employee is at work.

The 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 uncertain because the employee is put in a position where they have no real option but to perform certain duties.

The characterisation of whether or not activities will constitute work will depend upon the construction of the relevant industrial instrument and whether it makes a specific provision for the activity in question, and the facts in the case.

In Shop, Distributive & Allied Employees’ Association v Aldi Foods Pty Ltd (2022), the employer directed warehouse employees to commence work 15 minutes before their rostered starting time to undertake several tasks after clocking on but prior to the commencement of paid working hours. The tasks included:

• walking to a materials handling equipment area;
• locating and then undertaking various safety checks on stock pickers (a forklift-type vehicle);
• driving the said vehicle some distance to a central location;
• picking up and checking a communication device;
• recording various things on a sign-in sheet; and
• commencing the shift by undertaking a group physical warm up and a toolbox talk.

The Court ruled the pre-commencement activities could not be characterised as private activity. They do not involve any activities that are of benefit to the employee, such as storing of personal effects, putting on uniforms or personal protective equipment. The activities were solely to the benefit of the employer, in that by the time the employee arrived at a designated location for the commencement of their shift, all necessary activities for the employees to get immediately to work had been completed. Therefore, the activities carried out constituted work.