Getting PPE on and off might be on the clock

Meal breaks are an employee's time, not the employer's 3 min read

The Full Bench of the Fair Work Commission (FWC) has ruled that a meatworker is entitled to payment for the time involved in putting on and removing his personal protective equipment (PPE) during a 30-minute unpaid meal break.¹

How does this affect you?

In determining what activities constitute 'work' under an award the FWC will consider the proper construction of the award and the facts of the particular case. The FWC distinguished the PPE wearing and removal activities Mr Jay Seo was required to undertake before and after his break from those of other workplaces, where such activities would take less time and would not likely be considered 'work' including:

• employees in different workplaces who choose to wash their hands or remove a single item of PPE before eating on a meal break; or
• employees putting on a safety helmet, safety glasses and a hi-vis vest on their way out of the meal room at the end of a meal break.

Employers with employees whose PPE activities could be considered 'work' must ensure they provide sufficient breaks to avoid the operation of overtime penalty provisions.

Background

Mr Jay Seo was an employee of Bindaree Food Group Pty Ltd (Bindaree) a meat processing plant in Queensland. Mr Seo claimed he was not receiving the full 30-minute unpaid meal break he was entitled to receive under the Meat Industry Award 2010 (Award), because he had to remove his full set of PPE prior to commencing and completing his break, which took approximately 10 minutes. Mr Seo sought a ruling from the Fair Work Commission that the removing and donning of his PPE was to be considered 'work' and that he should be back-paid overtime and that his break time should exclude this activity.

At first instance, Deputy President Asbury determined that the donning and removing of PPE was not to be considered 'work' and instead was an activity in preparation for work. The 10 minutes required to don and remove the PPE was not considered an unreasonable amount of time. In making this determination Deputy President Asbury also relied on the fact that Mr Seo was being paid above the Award rates and that his employment contract prevented him from recovering any additional payments in respect of his employment that he was already receiving.

Decision

On appeal, the Full Bench considered that the meal break clause of the Award should be interpreted as providing employees with a 30-minute break to engage in a meal-related activity or other activity of the employee's choice. If the employer requires an employee to undertake substantive tasks or activities before they can commence their 30-minute break, the period of time reasonably required to undertake those tasks or activities is not part of the employee’s break and is to be considered 'work'.

The meal break activities Mr Seo was required to undertake before and after his meal break, including the 'donning and doffing' of his PPE, were considered substantive activities which formed an essential aspect of Bindaree’s business. If employees did not properly adhere to hygiene procedures and health and safety practices, Bindaree would not be able to operate its business in the meat industry.

Although the meal break activities were considered essential aspects of Mr Seo’s responsibilities as a production line worker, Mr Seo was required by Bindaree to undertake these activities and was not able to choose whether or not he engaged in some or all of the meal break activities. As such the time reasonably taken to engage in the meal break activities was not part of Mr Seo’s 30-minute unpaid meal break and he was entitled to overtime.