Reminder: When does work start?

As members would be aware, commencing work in the building and construction industry is not always as simple as arriving on site. Employees are often required to complete a range of pre-shift activities before they can begin their substantive duties.

Where an employer requires employees, either expressly or implicitly, to undertake work-related tasks before their scheduled start time, those employees may be entitled to payment for that time.

In Shop, Distributive & Allied Employees’ Association v Aldi Foods Pty Ltd [2022] FedCFamC2G 799, the Court considered whether employees should be paid for time spent completing mandatory pre-shift activities before the commencement of their rostered shifts.

The evidence showed that Aldi expected employees to arrive before their contractual start time and complete a range of activities necessary to commence work, including:

• Locating and conducting safety checks on stock pickers;
• Driving equipment to designated areas; and
• Collecting communication devices and completing sign-in requirements.

These activities took approximately 15 minutes each shift and were an implied expectation of employment. Employees who failed to complete the tasks before their rostered start time could receive a Record of Conversation, with repeated failures potentially leading to disciplinary action.

Aldi argued that the activities formed part of a longstanding workplace practice and that employees were only required to commence work at the start of their rostered shift.

The Court was ultimately required to determine whether the pre-shift activities constituted “work” and, therefore, whether employees should be paid for the time spent performing them. The Court found that the activities were work, relying on several key factors:

• The enterprise agreement did not distinguish pre-shift activities from paid work;
• The activities were not personal or private in nature. Unlike storing personal belongings, changing into a uniform, or putting on PPE, the tasks were performed for work purposes; and
• The activities primarily benefited the employer by ensuring employees were ready to commence productive work immediately at the start of their shift.

Key lessons for employers

This decision serves as an important reminder that employers may be required to pay employees for work-related activities performed outside their contractual hours of work.

Employers should carefully review:

• The hours of work specified in employment contracts and industrial instruments;
• Any activities employees are required to perform before or after their rostered hours; and
• Whether there are express or implied expectations that employees undertake work-related tasks in unpaid time.

Where pre-shift or post-shift activities are necessary for employees to perform their duties and principally benefit the employer, there is a risk that such time may be regarded as compensable work.

If you have any questions about your workplace obligations or how to arrange hours of work, please contact the Workplace Relations Team:

📞 (02) 6175 5900
📧 workplace@mba.org.au