Can you ask staff to turn up before their start time and not pay them? Nov 2022, Fair Work

Case argues ‘pre-commencement tasks’ are ‘customary’ in the workplace

BY Paulinet Tamaray 08 Nov 2022

The Federal Circuit and Family Court of Australia (FCFOA) recently dealt with a case involving an employer who allegedly instructed its workers to start work before their paid working shift. The company claimed it was not underpaying its staff, and that employees were only expected to be ready to start their work during their rostered shift. Such expectations, the employer argued, do not contravene the provision under the Fair Work Act.

Recently, HRD reported on a case where an employee claimed overtime payments for time spent in an employer-provided bus going to work. Now, in a similar issue, could a pre-commencement task before the paid rostered shift be deemed legal absent additional pay?

Background of the case

The employees claimed that from August 2018 until the present, the employer has been directing its workers at the company’s distribution centre to work 15 minutes before their supposed rostered shift.

They further said that the company required them to undertake a series of pre-commencement tasks, including “walking to a materials handling equipment area, locating and then undertaking various safety checks on stock pickers (a forklift type vehicle), driving the said vehicle some distance to a central location.”

The employees also claimed they were “picking up and checking a communication device, recording various things on a sign in sheet,” all before their paid working time. Thus, the employees argued that the employer had failed to pay the part-time hourly rate for their additional working hours.

In its defence, the employer asserted that the pre-commencement tasks of the workers have always been done before the actual work and have already become the custom in the workplace. “The respondent [employer] submitted that the requirement for employees to be at the selection desk ready to begin work at the commencement of the scheduled start time had been consistently applied under both the 2017 agreement and the 2020 agreement,” the court said.

Each of the employer’s witnesses further testified that there were no explicit directions given to employees to attend to work 15 minutes prior to the start of their shift.

The court’s findings

Following the case, the Federal Court favoured the employees and found the employer liable for requiring its workers to commence their job before the rostered shift, without additional pay.

The court also found that there was a clear and implied instruction from the employer that workers needed to arrive at work early to carry out the pre-commencement tasks or else it would lead to a Record of Conversation.

“A consistent failure to comply with the implied direction would lead to disciplinary action being considered by management,” the court said. “Employees were thus required to arrive earlier than the paid commencement time of a shift and required to undertake the pre-commencement tasks in unpaid time or risk the possibility of disciplinary action being taken against them,” it said.

Ultimately, the court ordered the employer to pay compensation for the breach of workplace laws. The terms of this compensation is yet to be determined.