When is Work Work, and Not Work?

The tricky question of whether employees are working or not when they perform some work-related tasks during their breaks has had an airing in the Fair Work Commission. And it’s not always clear cut if the employer has a liability to pay.

The case concerned on-board employees of a dive boat, who sometimes engaged with passengers while they were having their meals. Their union argued this was work, as part of their job included engaging with passengers. The FWC wasn’t convinced. It turned out the employees often chose to have their lunch with the passengers, so the FWC decided this was not a direction or requirement of the employer.

But the case also investigated those grey areas where an employee is more or less obliged to work, such as when, in this case, a passenger called on an employee for some assistance when the employee was on a break. Given the confines of the dive boat, it was not always possible for employees to be separated from the passengers. The FWC found it to be unlikely an employee would refuse to assist in the circumstances.

The FWC went on to say “(i)t will usually be the case that where an employee … is directed or required by an employer to be at the employer’s premises or at a particular location or locations where work is performed, for a particular period of time, to provide or be available to provide service for the employer, the employee is at work rather than carrying on private activities, and is entitled to payment. The question of whether the employer requires the service to be provided is relevant to whether an employee is working.

Like many such areas, it will depend on the circumstances. This decision is helpful though, because it narrows the focus to what is specifically required by the employer as an important starting point. Award provisions and employment letters will often spell out tasks and expectations, which are documents to help colour the grey areas.

Where the issues are recognised and intended to be validated in an enterprise agreement, the FWC will want to see an equitable ‘give and take’ operating – that is, it will look at the benefits on offer to the employees and the benefits of the ‘work’ performed in these situations, to the employer. The use of terms such as “require” and “direct” in agreements will help clarify intentions and obligations.

Australian Maritime Officers’ Union, The v Remick Pty Ltd T/A Pro Dive Cairns [2020] FWC 431 (30 January 2020)