//
[101]
[2021] FWCFB 2691
General information, not legal advice.
Fair Work Commission (Full Bench)
2021-06-01
Original judgment source is linked above.
s.604 - Appeal of decision
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.
[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:
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.
that we should be paid for this work.
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 the dispute and that she had dealt with all matters raised by Mr Seo.[3]
[5] Therefore, it is apparent that the dispute ultimately determined by the Deputy President concerned whether the requirement to undertake a range of activities at the beginning and end of each shift, and at the start and finish of the 30-minute unpaid meal break, should be classified as work for the purposes of the payment of wages and overtime under the Award.
[6] The Deputy President stated that Bindaree consented to arbitrating "the dispute" under the dispute resolution procedure in clause 34 of the Award and a hearing took place on 16 September 2020.[4] We understand this to mean that Bindaree consented to the arbitration of the dispute as described in the Form F10 application lodged by Mr Seo and as framed by the Deputy President at the outset of the Decision, that is a dispute about the activities undertaken before and after unpaid meal breaks and whether they are work for which Mr Seo was entitled to be paid.[5] The Deputy President confirmed that this was the dispute that Bindaree consented to have arbitrated by the Commission.[6]
[7] The Deputy President determined the dispute as follows:
"The Respondent submits, and I accept that it pays the Applicant in excess of the minimum award rates and provides him with paid period of ten minutes each day in addition to his unpaid thirty minute meal break with the result that the Applicant receives a meal break of thirty minutes uninterrupted. By virtue of clause 7 of the Applicant's contract of employment, these additional benefits can be set off against any claim he may make for Award entitlements.
I am also of the view that although the additional paid ten minutes was introduced in July 2020, it would not be appropriate to award back pay for the period prior to that date, given my conclusion that the tasks associated with donning and removing personal protective equipment are not work.
For the above reasons, I determine that the time spent by the Applicant donning and removing personal protective equipment - before and after work and before taking a meal break - is not work for which he is entitled to payment under the Meat Industry Award 2010 or his contract of employment.
If my conclusion on this point is wrong, I am also of the view that tasks undertaken by employees associated with donning and removing personal protective equipment at those times, are properly compensated for when the Award and the Applicant's contract of employment are considered. Accordingly, I determine that the activities described by the Applicant in relation to the donning and removal of personal protective equipment are not work for which he is entitled to be paid an amount in addition to the amount he is paid under the Award and his contract of employment."[7]
[8] As put by the Full Bench in Mark Hartley v Technical and Further Education Commission T/A TAFE NSW:
"An appeal under s.604 of the Act is an appeal by way of rehearing, however the Commission's powers on appeal are exercisable only if there is error on the part of the primary decision maker. There is no right to appeal. An appeal may be made only with the permission of the Commission. Subsection 604(2) requires the Commission to grant permission to appeal if it is satisfied that it is in the public interest to do so. Permission may otherwise be granted on discretionary grounds. An appeal cannot succeed in the absence of appealable error. The fact that a member at first instance made an error is not necessarily a sufficient basis to grant permission to appeal."[8]
[9] Clause 14 of the Award sets out the provisions applying to ordinary hours of work and rostering that pertain to Mr Seo:
(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.
(c) The ordinary hours of work for a casual employee must not exceed 38 hours in any week.
(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 hours which may be worked on any day or shift must not exceed 10 hours.
(f) Any hours worked outside the spread of hours listed must be paid at overtime rates.
14.5 Meat retail establishments (including employees of meat processing establishments and meat manufacturing establishments engaged in retail and/or wholesale sales of fresh meat and/or meat products and any ancillary products)
(a) Ordinary hours for these establishments are worked between:
(b) Payment for ordinary hours on weekends will be in accordance with clause 24.3.
14.6 Methods of arranging ordinary working hours
(b) Matters upon which agreement may be reached include:
[10] Clause 15 sets out the provisions pertaining to breaks for employees. The relevant provision is clause 15.1 which reads as follows:
(a) No employee will work for longer than 5 hours without a minimum 30 minute unpaid meal break. Any alternative arrangements between the employer and the employee must be by mutual agreement between the parties.
(b) Any employee called upon to work during meal break will be paid at overtime rates for that period."
[11] There was no particular question framed by the parties or the Deputy President that, when answered, would resolve the dispute. However, it is apparent from the Decision of the Deputy President that the dispute (as expanded at the hearing) was about whether or not the time spent by Mr Seo undertaking a range of activities before and after a shift and prior to commencing and completing his unpaid 30-minute meal break is work for which he is entitled to payment under the Award. The Deputy President found that such activity was not work for which he was entitled to payment. We note that while the Deputy President makes reference in paragraph [64] of the Decision to time spent by Mr Seo undertaking activities "before and after work and before taking a meal break", it is clear from reading the reasons for Decision as a whole that the Deputy President's conclusion in paragraph [64] also applies to time spent by Mr Seo on the relevant activities after taking a meal break.
[12] In making this determination, the Deputy President set out in her consideration the basis for reaching this conclusion. The Deputy President started by setting out the principles she considered relevant:
There is no universally applicable definition of the term "work".
Whether an employee is entitled to payment for activities or tasks or whether those activities or tasks are work depends on a number of matters, including any relevant industrial instruments.
Usually, an employee who 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. A 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 vexed because the employee is put in a position where he or she has no real option but to perform certain duties. There are also cases where activities which would not generally be considered as work, may become so because of the location or the context in which they are undertaken.[9]
[13] The Deputy President then turned to consider the evidence and made the following findings:
The context in which the activities or tasks are undertaken is important and it is relevant is that Mr Seo is working is in a meat processing establishment requiring stringent standards of hygiene.
The PPE worn by Mr Seo is required to protect the product he is producing from contamination but also protects Mr Seo.
The floors of the workplace can become slippery and particular kinds of boots are required.
Boots and clothing can be exposed to meat and meat products.
The environment in which Mr Seo works means that it is not reasonable or desirable that he provide his own clothing or boots.
The mesh glove and cut resistant gloves protect his hands while using a knife.
• Hair and beard nets prevent hair from contaminating a product and from employees being contaminated with product, or their hair being caught in machinery.[10]
[14] The Deputy President concluded that:
"In short, it is reasonable and necessary for the Applicant to be required to wear all the personal protective equipment listed by him in his evidence, as much for his own personal protection and wellbeing as for the maintenance of hygiene standards for the product he is producing."[11]
[15] In not accepting that activities taken in preparation for the meal break is "work", the Deputy President found that:
"The Applicant could not enjoy a meal break wearing boots and clothing which may be covered in meat or meat products. Neither would it be safe or hygienic for him to eat a meal wearing the items of personal protective equipment he is required to remove before entering the meal room. While the removal of the items maintains food safety standards for the Respondent, it also ensures employees can partake of a meal break without having to contend with soiled items of personal protective equipment, including clothing."[12]
[16] Citing her earlier decision in Construction, Forestry, Mining and Energy Union v Peabody Energy Australia PCI Mine Management Pty Ltd,[13] the Deputy President stated that she did not accept, as a general rule, that while donning personal protective equipment before commencing work, an employee is working. [14]
[17] The Deputy President then stated:
"In the present case the employer does not require employees to be at work at a certain time to undertake activities associated with donning personal protective equipment. The employer requires the Applicant to be at work in sufficient time to be ready to work including wearing his personal protective equipment. The donning of personal protective equipment is a reasonable and necessary incident of the employee being prepared to work. Employees are not being briefed or trained or otherwise directed at the time they are undertaking these activities. They are not directed as to the order in which they don personal protective equipment or prevented from undertaking other activities - including engaging with work colleagues - while they are doing so. The personal protective equipment protects the integrity of the employer's product but also the personal safety of the employee wearing it. Furthermore, the employer has the right under the Award to elect to provide laundered clothing to employees rather than paying them an allowance, and it is necessary that they leave such clothing at the workplace which in turn necessitates that they don the clothing before starting work.
It is also reasonable and necessary for employees to remove the personal protective equipment at work before leaving the workplace. It would not benefit either the employer or employees if employees were required to wear soiled clothing home or to carry it home, particularly given the type of soiling that employees would ordinarily encounter in the Respondent's workplace. I am also of the view that if the maximum time donning and removing personal protective equipment is ten minutes, then that is not an unreasonable requirement for employees at the commencement or completion of work. Further, I accept that the employer pays over the Award and has made reasonable attempts to minimise the effects of the requirements associated with donning and removing personal protective equipment on the private time of employees.[15]
[18] In conclusion, the Deputy President determined:
"There may be cases where the personal protective equipment required to be work [sic] by employees is unusually complex or related to a specialised task which is not ordinarily performed, so that while donning and removing such equipment employees could be said to be working. However, the tasks associated with donning and removing personal protective equipment described by the Applicant in the present case are not of this kind. It is also the case that the Applicant [sic] has introduced practices to streamline the pinch points at which employees may be queuing to undertake a particular task, such as at areas where they wash their boots."[16]
[19] The Deputy President also made observations as to the terms of Mr Seo's employment contract and his access to over award payments and the provisions in his contract of employment which provide as follows:
"Unless otherwise expressly stated, the remuneration payable to you under this contract is paid and received in full satisfaction of all remuneration and/or allowances of any kind whatsoever , to which you may be lawfully entitled under the terms of any award or other industrial instrument that may apply to your employment with the Company during the period that this contract remains in force.
Furthermore, in the event that any claim(s) is brought by you or on your behalf for payment of any such remuneration and/or allowance payable under any award or industrial instrument , the whole of the remuneration paid in accordance with the arrangements set out in this letter is intended to be applied in satisfaction of any such claim(s) and all amounts found to be lawfully payable , however they are described, before the Company is required to make any further payment to you in respect of such claim(s)."[17]
[20] As set out earlier, The Deputy President ultimately determined that:
"The Respondent submits, and I accept that it pays the Applicant in excess of the minimum award rates and provides him with paid period of ten minutes each day in addition to his unpaid thirty minute meal break with the result that the Applicant receives a meal break of thirty minutes uninterrupted. By virtue of clause 7 of the Applicant's contract of employment, these additional benefits can be set off against any claim he may make for Award entitlements.
I am also of the view that although the additional paid ten minutes was introduced in July 2020, it would not be appropriate to award back pay for the period prior to that date, given my conclusion that the tasks associated with donning and removing personal protective equipment are not work.
For the above reasons, I determine that the time spent by the Applicant donning and removing personal protective equipment - before and after work and before taking a meal break - is not work for which he is entitled to payment under the Meat Industry Award 2010 or his contract of employment.
If my conclusion on this point is wrong, I am also of the view that tasks undertaken by employees associated with donning and removing personal protective equipment at those times, are properly compensated for when the Award and the Applicant's contract of employment are considered. Accordingly, I determine that the activities described by the Applicant in relation to the donning and removal of personal protective equipment are not work for which he is entitled to be paid an amount in addition to the amount he is paid under the Award and his contract of employment."[18]
[21] Mr Seo's notice of appeal (Form F7) did not include particularised grounds of appeal but referred instead to his submissions. Summarising these submissions, the grounds of appeal appear to be as follows:
That the Decision of the Deputy President was made in error, including factual errors, being guided by irrelevant factors, and failing to take into account material considerations.
The significant factual errors include the Deputy President's finding that "[t]he context is that the Applicant is working in a meat processing establishment" was a mistake of fact as it is a meat retail establishment.
That the context is important because most of the workers who are required to perform these unpaid activities never come into contact with meat, knives or machinery directly, and therefore have little to no benefit from performing any of the activities required.
That the majority of the roles that he is aware of involve handling sealed packages, and generally do not involve handling meat at all.
That he has worked in roles where he has come into contact with meat directly but also in roles where he has not touched meat for long periods.
Therefore, the Deputy President's conclusion that the benefit he receives from performing the activities contrasts the benefit the employer receives by protecting the product from contamination is based on a mistaken fact. Bindaree receives a much more significant benefit than he does, and the majority of the roles that he is aware of receive nearly no benefit at all.
The Deputy President's finding that hair and beard nets prevent employees from having meat product in their hair is incorrect as he shaves his head every day and the hair net is of no benefit to him.
The requirement to take off the white shirt before entering the lunch room is to prevent the product being contaminated to comply with regulatory requirements, and the employer is the only one who benefits from this.
[22] The submissions made by Mr Seo under the heading of "Being guided by irrelevant factors, not following stated principles, and failing to take material considerations into account" may be summarised as follows:
• The Deputy President alludes to the fact that she has a history of favouring employers in similar matters in the past by way of her reference to her decision in Construction, Forestry, Mining and Energy Union v Peabody Energy Australia PCI Mine Management Pty Ltd.[19]
[23] Bindaree submits as follows:
That while much of Mr Seo's case referenced the collective of "we" or "our" in reference to the PPE, no specific evidence was provided as to the work activities of others.
The Deputy President correctly characterised the dispute as being about the nature of "work" in respect of which there is no universally applicable definition, and correctly articulated the test to be applied at paragraphs [49] - [51] of her Decision.
The various findings made by the Deputy President were sufficient to justify the conclusion at paragraph [64] of the Decision that "the time spent by the Applicant donning and removing personal protective equipment - before and after work and before taking a meal break - is not work for which he is entitled to payment under the Meat Industry Award 2010 or his contract of employment."
The only activities of "doffing" PPE referred to by Mr Seo were at 2.1(1)(c)(ii) and (ix) of the Form F10. That is, "We finish our work on the line and we are told to go on our break" and "In the locker room we can remove our white shirt (considered PPE)."
No attempt was made by Mr Seo to distinguish walking time from the other activities and personal hygiene action from other activities. However, in the statement of Todd Newton, Bindaree gave uncontradicted evidence that the walking component was measured at 90 seconds, donning PPE as one minute, and scrubbing large pieces of meat off boots as 10 seconds. The cleaning function is said to be significantly less onerous in this workplace than would be the case of a kill floor or boning room in an abattoir. The donning and doffing of hair nets, beard nets and earplugs was not measured, but would be essentially de minimus, or so small as to be of no significance.
In addition to the clear findings and conclusions of the Deputy President as to the correct characterisation of the donning and doffing of PPE, that waiting for a few moments to perform personal hygiene functions such as washing and drying hands and boots after performing work and before taking a break, cannot be described as "work" for present purposes. Similarly, a walking period of 90 seconds between the production area and the locker room or break area is no more than a usual or typical time required for an employee to take in order to be at their workstation ready to work, and is not "work".
In the event that it is accepted that the activities listed are work, the activities are largely compensated for when Mr Seo's contract of employment and associated additional payments are considered.
While Mr Seo's assertion that they are "required to spend 10 minutes of our break time doing essential work duties" is disputed, even if that were the case, Mr Seo was being paid for that 10-minute period at the time the dispute was lodged because an additional paid time period of 10 minutes free from production work had been added to the 30-minute Award unpaid meal break period since June 2020, before this dispute was lodged, as Mr Seo conceded.
As such, the Decision raises no matter of importance and general application, nor does it deal with a diversity of decisions. It is consistent with principles applied in at least one earlier decision, does not manifest an injustice, is not counterintuitive and does not apply legal principles which are disharmonious when compared with other decisions.
The only ground of appeal that is brought is in paragraph 1.2 of the notice of appeal, namely "The decision that the activities are not 'work'".
[24] Bindaree submits that Mr Seo's submissions which are said to constitute the grounds of the appeal are a mixture of grounds, submissions in support of the grounds, unsupported assertions of fact, and new evidence which was not placed before the Deputy President. Bindaree submits in relation to those matters as follows:
The matter described in paragraph 6 is not a mistake of fact. On a number of different occasions in the Decision (commencing at [2]) the Deputy President referred to the fact that the plant was a "meat retail establishment" under the Award definitions. Read as a whole, the Decision plainly intended to recount the fact that the premises are premises in respect of which meat processing activity occurs. This is entirely consistent with the evidence of both parties in the proceedings (paragraph 2.1 (1) (g) of the Form F10 and paragraph 6 of Mr Seo's submissions on appeal) and the evidence of Mr Newton referred to at [24] of the Decision.
There is no error on the part of the Deputy President in her conclusion that all of the PPE, including boots, clothing, gloves and hairnets were provided for both the protection of the product and the employees.
Paragraphs [34] to [45] of Bindaree's submissions respond to Mr Seo's submissions at pages 9 to 22 and Bindaree submits that none of the matters raised demonstrate error on the part of the Deputy President.
• Bindaree refers to the decision of Ovation New Zealand Ltd v New Zealand Meat Workers and Related Trades Union Inc[20] which was referred to by Mr Seo and set out reasons that decisions can be distinguished from the circumstances here.
[25] The approach of the Full Bench to the determination of an appeal depends on the nature of the decision at first instance. In the present case, the Deputy President was resolving a dispute pursuant to the dispute procedure in clause 34 of the Award. Clause 34.1 states that clause 34 sets out the procedures to be followed if a dispute arises about a matter under this award or in relation to the National Employment Standards. Clause 34.5 allows the parties to agree on the process to be followed by the Commission in dealing with the dispute, including mediation, conciliation and consent arbitration. The parties consented to an arbitration to resolve the dispute.
[26] In arbitrating the dispute, the Commission must act in accordance with the Award (see s 739(5) of the Act). To resolve the dispute, the Deputy President was required to correctly interpret the relevant provisions of the Award. The Full Bench must determine whether the Deputy President's determination of the dispute is correct having regard to the relevant provisions of the Award.
[27] The general approach to the construction of awards was considered in the judgment of French J, as he then was, in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [21] (Wanneroo):
"The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to '...the entire document of which it is a part or to other documents with which there is an association'. It may also include '... ideas that gave rise to an expression in a document from which it has been taken' - Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518 (Burchett J); Australian Municipal, Clerical and Services union v Treasurer of the Commonwealth of Australia [1998] FCA 249; (1998) 80 IR 345 (Marshall J)."[22]
[28] As was observed by Madgwick J in Kucks v CSR Limited [23] a narrow and pedantic approach to interpretation should be avoided, a search of the evident purpose is permissible and meanings which avoid inconvenience or injustice may reasonably be strained for, but:
". . . the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning." [24]
[29] It is apparent that there were two separate disputes that were ultimately agitated for resolution by Mr Seo. The first was the dispute as it was framed in the Form F10. That dispute related to the operation of clause 15.1 of the Award, unpaid meal breaks (the first dispute). Mr Seo asserted in his application that:
"During our break time we are required to do other work (in particular donning and doffing of PPE which is essential to our job, but also other work such as cleaning and sharpening of knives) and we are not allowed to enter the break room or return to the production area until we complete this work."
[30] After setting out the activities undertaken after finishing work on the line, Mr Seo asserts that:
"We can then spend ~20 minutes of our 30-minute break (or recently, due to a change, 30 minutes of our 40-minute break) in the break room or otherwise on our break, because we must spend ~5 minutes each way donning and doffing our PPE. So we are required to spend 10 minutes of our break time doing essential work duties."
[31] The second matter in dispute was evidently only raised by Mr Seo in his submissions filed after the directions for the programming of the matter were issued. That matter involved whether undertaking activities including donning and doffing PPE prior to and after each shift should be regarded as work and remunerated accordingly (the second dispute). We note that the second dispute does not have any connection at all to the operation of clause 15.1 of the Award, the impugned clause in Mr Seo's Form F10.
[32] The first dispute that Mr Seo sought be resolved concerned the correct interpretation of clause 15.1(a) of the Award. Clause 15.1 is in the following terms:
(a) No employee will work for longer than 5 hours without a minimum 30 minute unpaid meal break. Any alternative arrangements between the employer and the employee must be by mutual agreement between the parties.
(b) Any employee called upon to work during meal break will be paid at overtime rates for that period."
[33] The Deputy President examined the activities of donning and doffing PPE and other processes required of Mr Seo in connection with his meal break in order to determine whether they were "work" within the meaning of the Award.
[34] What constitutes "work" or "time worked" within the meaning of an industrial instrument has been considered in a number of different cases. In Minister for Police v WA Police Force Union of Workers,[25] a decision of the Western Australian Industrial Appeal Court, Neville J said (at 993):
"It seems to me that if a worker is instructed by a superior, whom it is his duty to obey, that he must do certain things and must not do certain other things, during a certain period he must, during that period, be on duty and, in the terms of this award, therefore, that time must be time worked."
[35] In that case, involving an award which made no separate provision for stand-by, on-call or waiting allowances, time spent by a police constable on-call where he was required to remain at home, consume no alcohol and be prepared to conduct breathalyser tests when required, was time on duty for the purposes of the overtime provisions.
[36] In another decision of the Western Australian Industrial Appeal Court, Hospital Employees' Industrial Union of Workers, WA v Proprietors of Lee-Downs Nursing Home,[26] Burt CJ addressed the concept of time worked under the relevant award in the following terms:
"In my opinion time is 'time worked' within the meaning of the award if it can be seen that the worker is during the time under consideration doing, whatever it is that he is doing, upon instructions, express or implied given to him by his employer. What he is doing need not involve any physical activity. It may be that he is required to be in a certain place at and during a certain time so that he can act should a certain event happen and in such a case, as it seems to me, the time so spent is 'time worked' whether the event initiating physical activity happens or does not happen. He also serves who only stands and waits."
[37] In that case it was held that time spent overnight by a nursing assistant on nursing home premises under instructions to "report any emergencies which arose relative to the inmates of the home" was "time worked".
[38] In Master Builders' Association of Victoria v Australian Building Construction Employees' and Builders Labourers' Federation,[27] a question arose as to whether time spent by an employee driving a vehicle provided free of charge by his employer from home to work and return was "working time" under the relevant award. The Full Court of the Federal Court comprising Evatt and Northrop JJ said (at 36):
"The true answer is to be found by considering the terms of the contract of employment and the terms of the award providing for payment of wages. The interpretation is sought in circumstances where the employee is required, pursuant to his contract of employment, to drive the vehicle. During other hours of work he performs work admittedly that of a builder's labourer. This must mean that as part of his duties as an employee he is required to drive the vehicle from his home to his place of employment and return on any one day. Put another way, when the employee is driving the vehicle, he is performing a duty required of him by his employer; he is performing an obligation imposed upon him by his contract of employment. Such a man is in our view a builder's labourer within the meaning of the award."
[39] These authorities were considered by French J (as his Honour then was) in Federated Municipal & Shire Council Employees Union of Australia v Shire of Albany:[28]
"While the general principles enunciated in that line of cases indicate criteria for the determination of "time worked" where that expression is used in industrial awards, the decision in any particular case must depend upon the construction of the relevant award, whether it makes specific provision for the activity in question, and the facts of the case."
[40] In Warramunda Village Inc v Pryde,[29] the Full Court of the Federal Court held (Gyles J dissenting) that employees rostered on a "sleepover shift" were engaged in "work" for the purposes of the relevant award (which fixed remuneration by reference to hours worked). The employees were required to live at a hostel and be on call for assistance during the night but were entitled to sleep or do as they wished during the shift unless they were actually called on. Justice Lee said (at [17]-[18]):
"... An employee who attends at the place of employment pursuant to the employer's direction to be at the employer's premises for a period of time and be available to provide service at the premises as required by the employer, is not carrying on private activities but is providing service to the employer. Such an employee is at "work" for the purposes of the 1995 Award and is entitled to be remunerated according to the terms of the Award. (See: Hospital Employees' Industrial Union of Workers, WA v Proprietors of Lee-Downs Nursing Home (1977) 57 WAIG 455 per Burt CJ at 456).
18. In directing an employee to perform a "sleep-over shift", an employer required an employee to attend the employer's place of work for a nominated period to render service as required by the employer. Employees assigned to "sleep-over shifts" were supervisors, whose responsibilities at the place of employment involved more, of course, than "active `stand-up' duty". No doubt proper conduct of the employer's enterprise required the employer to have a supervisor available at the hostel in the course of a night shift. Anticipating that active duty by a supervisor on that shift would be intermittent and infrequent, the employer permitted the supervisor to sleep as opportunity allowed. From the perspective of an employee it made little difference whether a call on a "buzzer" was awaited at the place of work whilst the employee was conscious at a desk or asleep in a bed. How the employer required the employee to render service was a matter for the employer."
[41] Justice Finkelstein rejected (at [31]) the appellant's argument that an employee on a sleepover shift does not perform "work" unless the employee is actively attending to the needs of a patient. This argument by the appellant proceeded on the footing that the word "work" when used in the award should be given its dictionary meaning of "labouring" or "toiling". His Honour observed (at [37]):
"... the words "work" or "worked" when used in provisions such as cl 13 and cl 15 do not bear the meaning assigned to them by the appellant. The authorities show that when such words are used in instruments of the type presently under consideration, what is referred to is an employee who is under the instruction of an employer: the time under instruction is time worked. In the Hospital Employees' Industrial Union of Workers v Proprietors of Lee-Downs Nursing Home (1977) 57 WAIG 455 the question was whether a nurse on night duty who was permitted to sleep nights and be on call was entitled to wages for "time worked in excess of the ordinary time" within the meaning of the Nursing Aides and Nursing Assistants' (Private) Award. The Western Australian Industrial Appeal Court (Burt CJ, Wickham and Wallace JJ), held that the nurse was entitled to her pay. Burt CJ said (at 456):
"In my opinion, once [the magistrate] held that the worker was on the premises pursuant to instructions received from the employer 'to report any emergencies which arose relative to the inmates of the home' it follows that the whole of the time during which she was on the premises pursuant to those instructions was 'time worked' within the meaning of the award. It may be that an emergency seldom arose and it may be that an emergency never arose but that, I think, would make no difference. The worker was not on call in the sense that she could be called upon by the employer to work. She was, I think, under a continual duty to act if called by a patient and she falls into the category of persons who serve while waiting."
[42] In Ovation New Zealand Limited v New Zealand Meat Workers and Related Trades Union Incorporated,[30] a decision of the Employment Court of New Zealand, Judge Corkhill decided that a range of tasks including cleaning gloves, boots, aprons and scabbards and donning and removing protective clothing and equipment at the beginning and end of each shift, and at rest and meal breaks, by employees working in a meat processing plant was "work" for the purposes of s 6 of the Minimum Wage Act 1983 (New Zealand). In so finding, Judge Corkhill made findings of fact as to the process which the employees in that case were required to go through before they could commence their meal break. There are a number of similarities between that process and the process which applies at Bindaree's workplace. The Court of Appeal of New Zealand declined an application for leave to appeal from Judge Corkhill's decision.[31]
[43] Drawing these authorities together, we consider that whether particular activities constitute "work" within the meaning of an industrial instrument depends on the proper construction of the relevant instrument and the facts of the particular case.
[44] In the present case, clause 15.1(a) of the Award requires that, subject to alternative arrangements mutually agreed between relevant parties, an employee be given a 30-minute unpaid meal break prior to completing five hours' work. If an employee is called on to work during their 30-minute meal break, they must be paid at overtime rates (clause 15.1(b)). The evident purpose of a provision such as clause 15.1(a) of the Award is to provide an employee with a period of time in which the employee is "free, not only to eat a meal, but to leave their immediate workplace ... and socialise with other workers elsewhere in the establishment, or even leave the employer's premises altogether on business of their own".[32] Bindaree accepted in the hearing before the Deputy President that its employees are free to leave the work site during their 30-minute unpaid meal break.[33]
[45] Because clause 15.1(b) of the Award deals with a circumstance in which an employee who is on an unpaid meal break may be called on to work during the meal break, it is clear that unless an employee is so called on to work they are not working while they are taking their meal break. That the 30-minute meal break is unpaid also suggests that the employee is off-duty during the meal break.[34] An employee may, of course, choose not to partake in a meal during their 30 minute unpaid meal break, but they are nevertheless entitled to a break from the performance of work for the duration of the meal break.[35]
[46] The ability of an employee to be "called upon to work during [a] meal break" in accordance with clause 15.1(b) of the Award is consistent with the notion of "work" referring to an employee who is under the instruction or direction of their employer, or required by their employer, to do certain things and while they are doing those things they are "working". We consider that to be the proper construction of the word "work" in clause 15.1(a) and (b) of the Award. It follows that an employee is entitled to have a 30-minute unpaid break from such "work" in accordance with clause 15.1(a) of the Award.
[47] Bindaree asserted during the proceedings before the Deputy President that the meal break provision should be interpreted as one which sets the length of the break "free from processing work...".[36]
[48] Bindaree argued that the evident purpose of clause 15.1 in the Award is to provide a 30-minute break away from "productive work" and the penalty in clause 15.1(b) is activated if an employee is called on to continue or resume "productive work". We do not accept this proposition for two reasons.
[49] Firstly, there are no textual indicators we can discern which would support a construction that it is only "productive" work, as opposed to other work the employee is required to undertake, that the employee is to be given a break from.
[50] Secondly, this construction would likely lead to outcomes where some employees would have less than 30 minutes to engage in what would reasonably be considered a break to take a meal (or engage in other activities of their choice) by virtue of the fact that they are required to spend a significant amount of time engaged in the activities described by Mr Seo and required by Bindaree. Other employees who by virtue of their occupation do not need to undertake the activities described by Mr Seo, would have the full benefit of the 30-minute break. There is no indication in the text of the Award or the purpose behind clause 15.1 that such an inequitable outcome was objectively intended when the Award was made. Bindaree contends that those particular circumstances would not occur in relation to meat processing activities and therefore it should not be inferred that clause 15.1 was intended to provide a break for any work-related activity whatsoever. However, this submission ignores that other classifications covered by the Award, such as a Salesperson, would likely not need to engage in the types of activities described by Mr Seo and thus would be more likely to enjoy the full 30-minute break. Also relevant to this point is that clause 15.1 of the Award applies to all employees covered by the Award, unlike provisions such as clause 15.2 which only applies to meat processing establishments.
[51] Accordingly, we consider that the meal break clause should be interpreted as providing a 30-minute break to engage in a meal related activity or an activity of the employee's choice. If an employer requires an employee to undertake substantive tasks or activities before they can commence their 30-minute unpaid meal break in accordance with clause 15.1(a) of the Award, the period of time reasonably required to undertake those tasks or activities is not part of the employee's break and is "work" within the meaning of clause 15.1.
[52] In paragraph [11] of the Decision the Deputy President recounted the evidence given by Mr Seo in relation to a "typical shift" at Bindaree:
"[11] The Applicant outlined a breakdown of a "typical shift" as follows:
(a) I arrive at work ~10-15 minutes before my shift start time.
(b) I walk up to the 3rd floor and get my cut-resistant gloves, white uniform shirt, white uniform pants, hair net & beard net (if necessary), and ear plugs.
(c) I walk to the locker room and start wearing my white uniform shirt and pants, rubber boots, bump camp, hair net, etc. These are part of my work duties and I think I should be table to sign on before doing this, but I must start doing it 5-10 minutes before my ordinary start time.
(d) I then walk down a long hallway, down a flight of stairs, down another long hallway, down another flight of stairs, then line up to wash my rubber boots, wash my hands, enter the production area, and then I can sign in.
(e) We must sign in ~5 minutes before the start of the shift so we have enough time to then wear our gloves etc and be at our stations at our starting time. One time I signed in right on time at the start of my shift (after already spending ~5 minutes wearing PPE, walking, and washing rubber boots etc) and was told by a Line Supervisor (Cam) that we must get over to the line by our shift start time. This was confirmed by the Shift Manager (Duane).
(f) After signing in a few minutes before my shift start time, I then line up to put on nitrile gloves, plastic arm sleeves, plastic apron, and walk to wherever I will be working.
(g) During the shift, we will be on the production floor wearing:
iii. Blue nitrile gloves, plastic arm sleeves, plastic apron
vi. Cotton gloves / cut-resistant gloves, if necessary
(h) We work in a regulated industry (food processing) so wearing these items, and washing the non-disposable ones (such as bump camp & rubber boots), are integral to performing the principal activities of our job.
(i) At some time (usually 7:30pm), 3-4 lines stop at the same time (~8 workers per line) and all of those workers are told to go on our break (recently because of the pandemic situation, lines are being sent on break separately, so there is less congestion).
i. It is the company's policy that the break starts at this point (when we are told to go on our break), and that we must be "back at our stations ready to go" by the end of the meal break (previously 30 minutes, now 40 minutes).
ii. If we take longer than that, our Supervisor will tell us that we are late back from the break. I have been told I was late even though I think I went back early (just not early enough), and I've seen a casual worker sent home because he came back 10 minutes later than everyone else (which in my opinion was on-time).
iii. I clarified this issue with HR Manager Paula, HR Officer Bronwyn, Plant Manager Steve Dennie, Business Manager Chris, Shift Manager Duane, and Line Supervisor Cam, who all told me this is when the breaks start and finish.
(j) After being told to "go on our break", we must then remove our nitrile gloves, plastic arm sleeves, and plastic apron, and throw them into a bin.
(k) We walk to the exit at the front of the production floor where we must walk through a boot scrubbing bay to remove any large pieces of meat from our boots. This is only 1 lane so we must wait for others to stop and scrub their boots. There is a side door where we can take a short-cut, but doing so results in disciplinary action.
(l) We walk into the hand-washing bay where we must wash our hands. There are 8-10 taps, but usually several are broken, and there are 4 hand dryers but it is rare for any more than 2 dryers to be working, so we usually have to line up to dry our hands.
(m) We then walk to the boot-washing bay where we must wash our rubber boots. There are 4 hoses for washing out boots, so we have to line up to use them.
(n) If we use knives, we must rinse our knives and mesh glove.
(o) We then walk up a flight of stairs to the next floor, go through a door, walk down a long hallway, walk up another flight of stairs to the next floor, then walk down another long hallway to reach the locker room.
(p) In the locker room we can then remove our white uniform shirt (and hair net, bump camp, etc), and at this point we are able to enter the break room or otherwise go on our break.
i. It is company policy that wearing our white uniform shirt is not permitted in the break room or the bathroom.
ii. It is company policy that wearing our white shirt, white pants, rubber boots, or bump camp off-site is not permitted.
iii. It is company policy that we must store these items in designated areas (rubber boots on designated hooks and not on the floor, other items in our locker if they are clean, white shirt and pants to be returned to laundry bin at end of shift so they can be laundered in "special food-safe chemicals"), and failing to do so results in disciplinary action and "toolbox talks".
(q) From being told to "go our break" [sic] at the line until arriving in the locker room we have usually spent about 5 minutes doing duties that we are required to do before entering the break room or otherwise going on our break.
(r) If we want to leave the site during our break, we must also remove our white uniform pants and rubber boots, and store them correctly.
(s) For example, when the line stops and we are told to go on our break, if we then walk straight out the front to the building while wearing our nitrile gloves, plastic arm sleeves, plastic apron, rubber boots, white shirt, white pants etc, we would be disciplined.
(t) Even though we have a 30-minute break (now 40 minutes), we must plan to start going down early because we must do the same duties in reverse before entering the production floor, and be back at our station waring nitrile gloves, plastic sleeves & apron, hair net, etc, 30 minutes (now 40 minutes) from when the line stopped.
(u) So really we are doing about 10 minutes of work (about 5 minutes each way) during our break.
(v) 1 reason why it takes so long is the distance between the production floor and the locker room, another reason is that many people must line up to use a small number of facilities such as hand dryer and boot-washing hoses, but the reason why we must perform these duties before entering the break room / production area is because of regulatory requirements and company policies.
(w) At the end of our shift, we are told we can sign off. We must sign off at the current time, and failing to do so results in disciplinary action. But even after signing off we are not free to just walk out of the building. We must still spend 5 minutes doing those same work duties (hand-washing, washing rubber boots, washing knives, washing mesh gloves, putting our white uniform shirt and pants in laundry bins, hanging our boots on designated hooks, disposing of hair nets, beard nets, ear plugs etc in bins, and storing our bump caps in our locker) before we are free to leave the building. Failing to do any of these duties results in disciplinary action. I think we should be able to sign off after doing all of these duties, because they are not optional, are part of our job, and take time to perform."
[53] The activities described in paragraphs [11(j)] to [11(v)] of the Decision relate to the taking of a 30-minute unpaid meal break in accordance with clause 15.1(a) of the Award. We will refer to these activities as the meal break activities.
[54] Although Bindaree disputed Mr Seo's evidence that the meal break activities would reasonably take about five minutes,[37] Bindaree did not dispute that the meal break activities were undertaken by Mr Seo and were required by Bindaree to be undertaken before Mr Seo could enter the locker room or otherwise commence activities of his choice whilst off-duty.
[55] Indeed, the meal break activities are substantive activities which form an essential aspect of Bindaree's business, because absent proper adherence to necessary hygiene procedures and appropriate health and safety practices, Bindaree would not be able to operate its business in the meat industry. For the same reasons, the meal break activities are essential aspects of Mr Seo's responsibilities as a production line worker who prepares meat for packaging on a processing line.
[56] As the Deputy President found, there is no doubt that some of the meal break activities, such as donning and doffing PPE, provided some benefit to Mr Seo as well as to Bindaree, and are a feature of the industry in which the work is conducted. However, this does not detract from the fact that Bindaree required all the meal break activities to be undertaken by Mr Seo before he could prepare or partake in a meal or engage in any other activity of his choice. Mr Seo did not have available to him the choice not to engage in some or all of the meal break activities. This is to be contrasted to many other employees in different workplaces who choose to wash their hands or remove an item of PPE before eating on a meal break. Nor is this a case where it could be seriously contended that the amount of time taken to undertake the meal break activities was so minimal it should be regarded as de minimis. We are not, for example, dealing with a requirement that an employee put on a safety helmet, safety glasses and a hi-vis vest on their way out of the crib room at the end of a meal break.
[57] Because Mr Seo was required by Bindaree to undertake the meal break activities, which were substantive, before he could prepare or partake in a meal or engage in any other activity of his choice, and also after he had partaken in a meal or activity of his choice, we consider that the time reasonably taken to engage in the meal break activities was not part of Mr Seo's 30-minute unpaid meal break in accordance with clause 15.1(a) of the Award. The meal break activities constitute "work" undertaken by Mr Seo within the meaning of clause 15.1 of the Award. The Deputy President's determination that the meal break activities were not part of Mr Seo's "work" and, as a result, Mr Seo did not have less than a 30-minute meal break was, we respectfully conclude, in error.
[58] However, it is apparent on the evidence that from 6 July 2020, and prior to the lodging of the dispute, Bindaree has provided a paid period of 10 minutes each day in addition to Mr Seo's unpaid 30-minute meal break. That is, Mr Seo is in effect permitted to have a 40 minute break from his production work, 10 minutes of which is paid and 30 minutes of which is unpaid. Therefore, since 6 July 2020 Mr Seo has in fact been receiving a 30-minute unpaid meal break. The Deputy President found, correctly and unsurprisingly, that this was the case.
[59] It follows that even though we have respectfully determined that the Deputy President was wrong in her conclusion that the meal break activities were not work, that makes no difference to the outcome for Mr Seo and Bindaree insofar as the first dispute concerns the period from 6 July 2020 onwards. This is because, even accepting the evidence of Mr Seo that the meal break activities take up a total of 10 minutes each meal break time (5 minutes prior to the rest break commencing and 5 minutes after it concludes), the additional 10 minutes paid time break provided to Mr Seo each day since 6 July 2020 covers the claim.[38]
[60] That is not, however, the end of the first dispute. It will be recalled that part of the relief sought by Mr Seo in his Form F10 was back pay "at overtime rates for the work done during the break time over the last ~2 years (10 minutes of work per day)". The additional 10 minutes of paid time per day provided to Mr Seo since 6 July 2020 has no impact on his claim for back pay in the period from the commencement of his employment in September 2018 to 5 July 2020.
[61] The backward-looking aspect of the first dispute was part of the dispute to which the parties consented being arbitrated by the Commission. The Deputy President was exercising a power of private arbitration when she made decisions in relation to it.[39]
[62] The earlier period from the commencement of Mr Seo's employment with Bindaree in September 2018 until 5 July 2020 may conveniently be separated into two parts:
• First, the period from September 2018 until the commencement of Mr Seo's new contract of employment with Bindaree which contains (at clause 7) a set-off provision;[40] and
[63] As to the first period, because the Deputy President determined the dispute on the basis that the meal break activities were not "work" undertaken by Mr Seo within the meaning of clause 15.1 of the Award, no findings were made by the Deputy President as to the terms and conditions on which Mr Seo was employed by Bindaree during that period, nor were any findings made as to the amount of time it took, or ought reasonably have taken, Mr Seo to undertake the meal break activities. Findings will have to be made on at least these issues when the dispute is remitted in order to determine the claim for back pay in the first period.
[64] As to the second period, we agree with the Deputy President's conclusion (at [62]) that clause 7 of Mr Seo's contract of employment can be used to set off the remuneration paid to him under the contract against his claim for entitlements pursuant to clause 15.1 of the Award. However, whether the amount paid to Mr Seo under his contract was sufficient to set off his entitlement to be paid overtime for time worked in undertaking the meal break activities depends on a range of matters, including findings which will need to be made as to the amount of time it took, or ought reasonably have taken, Mr Seo to undertake the meal break activities, and any other Award entitlements which may be owing to Mr Seo in respect of the second period. Findings will have to be made on at least these issues when the dispute is remitted in order to determine the claim for back pay in the second period.
[65] In respect to what we have termed the second dispute, that is whether or not activities including the doffing or donning of PPE before and after shift is work for which Mr Seo is entitled to be remunerated, we are of the view that the second dispute was not within the jurisdiction of the Commission and the Deputy President erred in determining to the contrary.
[66] Firstly, the Commission can only determine matters within the limits of s.739(5) of the Act, which states that the FWC must not make a decision that is inconsistent with the Act, or a fair work instrument that applies to the parties. The dispute settlement clause in the Award provides that a series of steps must be taken before the matter can be referred to the Commission. These steps are mandatory steps. So much is clear from the repeated use of the word "must" in clauses 34.2 and 34.3 and the requirement in clause 34.4 for "all appropriate steps to have been taken under clauses 34.2 and 34.3" of the Award before a party to the dispute may refer it to the Commission. While it is accepted that a dispute may evolve during proceedings in the Commission, we do not accept that the claim for additional payments in respect of work allegedly undertaken before and after a shift can be so characterised. Although such a claim shares the characteristic of involving some of the same activities as the meal break activities, there is no relationship with the key clause in the Award in question, the meal break clause.[41]
[67] Secondly, in order for the Commission to engage in private arbitration there needs to be consent from the parties for the Commission to do so. It is evident that the parties consented to the private arbitration in respect to the dispute about the operation of the meal break clause. However, at its highest, the most that could be said in respect to the second dispute is that Bindaree did not object.[42] It is not apparent from a review of the transcript of the proceedings that Bindaree consented to having the Commission arbitrate the second dispute. While there need not be any great formality to secure consent to the private arbitration, in circumstances such as these where a party has consented to private arbitration on the discreet issue of the interpretation of the meal break clause, something more than complete silence is required to indicate consent to arbitration of a dispute about different provisions of an industrial instrument.
[68] The first dispute, as framed by Mr Seo, was connected to the protection of clause 15.1, meal breaks. The second dispute has no relationship to that clause, it is a completely separate issue. The second dispute is one that Mr Seo could have raised through the dispute procedure to enliven jurisdiction. He did not do so. Mr Seo may still seek to raise the second dispute as a new dispute, and in so doing identify which clauses of the Award are relevant to that dispute, raise the matter with the employer in the manner described in the dispute settlement procedure and ultimately if those discussions are unsuccessful in resolving the dispute, the matter may return to the Commission for resolution in accordance with the dispute procedure.
[69] The only parties to the dispute before the Deputy President were Mr Seo and Bindaree. It follows that the Deputy President's determination was only binding on Mr Seo and Bindaree. Notwithstanding these limitations, the errors we have identified above go to the proper construction of clause 15.1 of the Award and the jurisdiction of the Commission. We consider that these matters are of importance and general application. We are satisfied that the appeal enlivens the public interest.
[70] For the foregoing reasons, in respect to the first dispute, we have determined that, for the period from the commencement of his employment with Bindaree until 5 July 2020, the Deputy President erred in finding that the meal break activities which Mr Seo was required to undertake did not constitute work, with the result that he was provided with a minimum 30-minute unpaid break in accordance with clause 15.1(a) of the Award. We quash that part of the Decision. However, Mr Seo was, as a matter of fact, accessing the full 30-minute unpaid meal break at the time the dispute was lodged by virtue of the fact that Bindaree had, from 6 July 2020, extended the meal break to 40 minutes by virtue of an additional 10 minutes of paid time. Therefore, the Deputy President was correct to determine that Mr Seo has been given his full 30-minute unpaid meal break since 6 July 2020.
[71] There was not the necessary jurisdiction for the Commission to arbitrate the second dispute relating to work allegedly undertaken before and after a shift. Accordingly, we quash that element of the Deputy President's Decision and dismiss the second dispute.
[72] We order that:
(a) Permission to appeal is granted.
(b) The appeal is upheld insofar as it concerns:
(i) the first dispute in respect of the period from the commencement of Mr Seo's employment to 5 July 2020; and
(ii) the second dispute.
(c) The appeal is otherwise dismissed.
(d) The Deputy President's determination is quashed insofar as it concerns:
(i) the first dispute in respect of the period from the commencement of Mr Seo's employment to 5 July 2020; and
(ii) the second dispute.
(e) The matter is remitted to Deputy President Asbury to determine the first dispute in respect of the period from the commencement of Mr Seo's employment to 5 July 2020.
(f) The second dispute is dismissed.
Appellant's written submissions filed 19 January 2021.
Respondent's written submissions dated 12 February 2021.
[1] [2020] FWC 6468 (the Decision)
[8] [2020] FWCFB 3280 at [6].
[20] [2018] NZEmpC 151 (17 December 2018).
[28] [1990] FCA 58; 32 IR 470.
[31] Ovation New Zealand Limited v New Zealand Meat Workers and Related Trades Union Incorporated [2019] NZCA 146
[32] Duncans Holdings Limited v Cross (1997) 76 IR 261 at 263; Durnford v Allen Taylor and Company Limited (1990) 34 IR 423 at 428.
[34] Duncans Holdings Limited v Cross (1997) 76 IR 261 at 264.
[35] Bowker v DP World Melbourne Limited [2014] FWCFB 9227 at [49].
[39] AMWU v ALS Industrial Australia Pty Ltd [2015] FCAFC 123 at [33]- [36]; CFMEU v AIRC [2001] HCA 16; (2001) 203 CLR 645 at [32]; Linfox Australia Pty Ltd v TWU [2013] FCA 659 at [19]- [24]
Printed by authority of the Commonwealth Government Printer
Jay Seo
Bindaree Food Group Pty Ltd [2021] FWCFB 2691
(2006) 153 IR 426
(1966) 66 IR 182
(1981) 54 FLR 358
(1990) 34 IR 423
(1998) 80 IR 345
(2002) 116 FCR 58
(1997) 76 IR 261
(2001) 203 CLR 645