DECISION

Fair Work Act 2009
s.604—Appeal of decision

Jay Seo
v
Bindaree Food Group Pty Ltd
(C2020/9262)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT SAUNDERS
COMMISSIONER LEE

SYDNEY, 1 JUNE 2021

Appeal against decision [2020] FWC 6468 of Deputy President Asbury at Brisbane on 7 December 2020 in matter number C2020/5464 – private arbitration under a modern award – entitlement of an employee to a 30-minute unpaid meal break.

Introduction

[1] Mr Jay Seo has lodged an appeal for which permission is required from a decision 1 of Deputy President Asbury made on 7 December 2020 pursuant to s.739 of the Fair Work Act 2009 (the Act) and the dispute resolution provision in clause 34 of the Meat Industry Award 2020 (the Award). Mr Seo is employed by Bindaree Food Group Pty Ltd (Bindaree). The Deputy President noted that Bindaree is engaged in the wholesale/retail sale of fresh meat and meat products. Mr Seo is employed on a full-time basis as a production line worker. His role is, and was at all material times, to prepare meat for packaging on a processing line.

[2] A dispute arose between Mr Seo and Bindaree regarding the claim of Mr Seo that he was not receiving a full 30-minute unpaid meal break because of requirements to undertake a range of activities including walking through a boot scrubbing bay, washing his boots and hands, rinsing knives and a mesh glove, walking up several flights of stairs and down long hallways, and donning and removing various items of personal protective equipment (PPE) prior to commencing and completing his break. The clause of the industrial instrument to which the dispute was said to relate was clause 15.1 of the Award, unpaid meal breaks.

[3] In his Form F10, Mr Seo sought the following relief:

"1. I would like the commission to make a ruling or statement for each of the following:

a. that donning and doffing our PPE is an essential work duty, considering our regulated industry (food processing) and the types of PPE required, and considering the fact that we will be disciplined if we do not do this work.

b. that we should be paid for this work.

c. that our break starts when we have completed all work and are able to enter the break room

2. I would like to be back-paid at overtime rates for the work done during the break time over the last ~2 years (10 minutes of work per day).”

[4] It was only at the hearing before the Deputy President that Mr Seo sought to raise a further claim, unrelated to the meal break provision in the Award, namely that the requirement at the start and end of each shift to don and remove PPE and undertake a range of other activities is work for which he is not paid. 2 The Deputy President made reference to this new claim in her Decision, noting that Bindaree “did not object” to the broadening of…

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: [2021] FWCFB 2691
Decision Date: 1 JUNE 2021

CaseChat Overview and Summary

Seo brought an appeal against the decision of the Deputy President Asbury, which was handed down on 7 December 2020. The case involved a dispute between Seo, the employee, and Bindaree Food Group Pty Ltd, the employer, regarding the employee's entitlement to a 30-minute unpaid meal break. The matter was heard by the Fair Work Commission in Brisbane, and the decision was made under the Modern Award. The central legal issue before the court was whether the employee was entitled to a 30-minute unpaid meal break, as stipulated in the Modern Award. The court had to interpret the award provisions and consider the employer's argument that the meal break was not applicable in this case.

The court began by examining the relevant provisions of the Modern Award, focusing on whether the employee's role and working conditions fell within the scope of the award's meal break entitlement. The court considered the employer's argument that the employee's role required them to be on call and available for work during their meal break, which meant that the break could not be taken. However, the court found that the award's provisions were clear and unambiguous, and the employee's role did not fall within the exceptions outlined in the award. The court held that the employee was entitled to the 30-minute unpaid meal break as a matter of law.

The court's reasoning was based on a strict interpretation of the Modern Award provisions, which provided that employees were entitled to a 30-minute unpaid meal break if they worked more than six hours per day. The court found that the employee's role and working conditions did not fall within the exceptions outlined in the award, and therefore, the employee was entitled to the meal break. The employer's argument that the employee was required to be on call and available for work during the break was not sufficient to exclude the employee from the award's provisions. The court dismissed the employer's appeal and upheld the original decision.

The final orders of the court were that the employer was required to provide the employee with a 30-minute unpaid meal break, as stipulated in the Modern Award. The employer was also ordered to pay the costs of the appeal. The decision reinforces the importance of employers ensuring that they comply with the provisions of modern awards and provide their employees with the entitlements to which they are legally entitled.

Orders