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.

BACKGROUND

[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.

RELEVANT AWARD PROVISIONS

[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.

(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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FWC 6468
Decision Date: 7 DECEMBER 2020

CaseChat Overview and Summary

The case of Mr Jay Seo against Bindaree Food Group Pty Ltd was before the Federal Circuit and Family Court of Australia. Mr Seo alleged that the company failed to compensate him for tasks he performed during unpaid meal breaks, specifically donning and removing personal protective equipment (PPE). Bindaree Food Group argued that these tasks did not constitute work under the Fair Work Act 2009 and the National Employment Standards (NES). The court had to determine whether the tasks performed by Mr Seo during his meal breaks were work for which he was entitled to compensation.

The primary legal issue was whether the activities of donning and removing PPE during meal breaks constituted work under the NES and the applicable modern award. The court needed to interpret the definition of work and whether such activities fell within this definition. It was also necessary to consider whether these activities were integral to Mr Seo's primary duties or if they were incidental to his employment. Furthermore, the court examined whether the employer was obliged to compensate for these tasks under the NES and any relevant awards.

The court concluded that the activities of donning and removing PPE during meal breaks did not constitute work. The court found that these activities were not integral to Mr Seo's primary duties and were more incidental in nature. Therefore, they did not fall within the definition of work for which compensation is required under the NES or the applicable modern award. The court held that since the activities in question were not work, there was no entitlement to additional payments for performing these tasks during meal breaks. The decision was in favour of Bindaree Food Group.

No further orders were made beyond the dismissal of the claim. The court did not award any compensation to Mr Seo for the activities performed during his meal breaks.

Orders