Employment lawyer explores the legal precedent
by Amber Chandler, employment lawyer and employee relations specialist
In workplaces where employees are required to wear a uniform or personal protective equipment (PPE), it is generally understood that employers pay the cost of the uniform and PPE, as well as laundry costs related to the uniform. However, grey areas have arisen in relation to some circumstances.
Under the General Retail Industry Award 2020, the cost of “special clothing” which is defined as “any article of clothing (including uniform, waterproof or other protective clothing) that the employer requires the employee to wear or that it is necessary for the employee to wear” is the responsibility of the employer.
The retail award requires the employer to reimburse the employee for the cost of purchasing special clothing and purchasing replacement clothing as needed because of normal wear and tear, if the employer has not provided the special clothing. In addition, the award provides for payment of a laundry allowance to employees (different rates for full-time and part-time/casual) who are responsible for laundering any special clothing.
Offering employees staff discounts for clothing sold by the employer’s company is not sufficient in circumstances where the employer has made it a requirement for the employee to wear the particular item of clothing. Other modern awards, including the Fast Food Industry Award, Meat Industry Award and the Aged Care Award, have similar provisions. Enterprise agreements may also address the issue.
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Confusion has arisen in cases where the provision of or purchase of the actual PPE items was not an issue, but rather whether an employee is entitled to be paid for time spent donning and removing PPE.
In a very recent case before the Fair Work Commission Jay Seo v Bindaree Food Group Pty Ltd [2020] FWC 6468 (7 December 2020), Deputy President Asbury was required to decide this issue.
The employee worked at a meat processing plant in Queensland, generally working from around 2:00pm until around 10:10pm, Monday to Friday. The issue in dispute was that he said he was not receiving a full 30-minute unpaid meal break, to which he was entitled under the applicable Award, because he had to remove his PPE prior to commencing his break and putting it back on prior to completing his break. He said that this process took around 10 minutes, so that his actual break time taken was only 20 minutes. He sought a ruling from the Commission that removing and donning his PPE was “work” for which he should be paid overtime and that his break time should exclude these activities.
It is interesting to note that the PPE he was required to wear consisted of several items, being:
In addressing the issue, the Deputy President needed to consider whether donning and removing PPE was “work”. She acknowledged that “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, not the least being the manner in which any relevant industrial instrument deals with payment for work and its definition and the employee’s contract of employment.” She accepted that in this case, the activities were preparation for work as opposed to actually starting work.
The Deputy President turned her attention to the applicable relevant industrial instrument which in this case was the Meat Industry Award 2010 which provided for the 30 minute unpaid break. She also noted the employment contract provided the employee with benefits in excess of the minimum award conditions. The contract also contained a watertight clause:
“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).”
Ultimately, the Deputy President held that the employee was not entitled to be paid for the time spend donning and removing the PPE. She commented that 10 minutes was not an unreasonable time frame to don and remove PPE. Of significant importance was the fact he was being paid above the award and the clause in his employment contract prevented him from recovering any more payment in respect of his employment that that he was already receiving.
The fact the employer had only a few months earlier introduced an additional 10 minutes paid break time for its employees also influenced the Fair Work decision that the employee’s application for overtime payment.
However, as we lawyers like to often say: each case turns on its own set of facts. This is merely one situation in which donning and removing PPE was not considered work for which an employee should not be paid. There were individual factors present which may not be replicated in another such application. Deputy President Asbury hinted at other situations where the outcome may be different. She indicated there may be cases where the PPE required “is unusually complex or related to specialised task which is not ordinarily performed“ and may fall within the definition of work.
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Finally, employers must also be careful that their dress codes are not discriminatory. Anti-discrimination legislation makes it unlawful to discriminate against a person in employment if a person is treated unfairly because of a protected characteristic, such as his or her race, sex, age, disability, sexual orientation, gender identity or intersex status.
Thus, when an employer sets out rules about how employees should dress in the workplace, or prescribes a particular uniform for employees, they need to consider whether the dress code singles out some employees for different treatment or disadvantages them because of one of the characteristics above.
Such situations could include if the dress code requires female employees, but not male employees, to wear revealing clothing. Likewise, if the uniform policy requires all employees to wear a particular uniform, but a pregnant employee or an employee with a disability finds it difficult to wear that uniform. In a case where the uniform policy does not make allowance for employees who are pregnant or have a disability to wear a different version of the uniform, this could be considered discriminatory.
