Federal Court to fine Aldi for large scale unpaid duties

Federal Court to fine Aldi for large scale unpaid duties

Yet another large and well-known Australian employer has been found to have underpaid large numbers of workers, in this case, by requiring staff to clock on before their registered start time to undertake ‘pre-work’ duties for which they were not paid. Employers are strongly urged to review their work practices in light of this and similar recent decisions.

In evidence before Justice Douglas Humphreys in the Federal Circuit and Family Court of Australia, it was revealed that retail giant Aldi required staff at their Preston distribution centre in south-west Sydney to perform duties in preparation for the workday, normally amounting to an average of 10 extra minutes per day.

Duties they performed included:

  • Conducting safety checks on stock pickers (similar to a forklift);

  • Driving the stock picker to a central location;

  • Picking up a communications device, pallet wraps and markers;

  • Recording various administrative tasks; and

  • Doing a physical workout and participating in a toolbox talk.

The retail union, the Shop Distributive and Allied Employees Association (SDA), who led the class action against Aldi, are claiming that approximately 4,000 current and former employees are owed up to $10 million as a result of the ruling.

Judge Humphreys rejected Aldi’s submission that employees at the distribution centre were only expected to be ready to commence work at the start of the rostered shift. Although Judge Humphreys was not satisfied that an explicit direction was given that employees were to be at work prior to the commencement time of their shift, he noted “that there was an expectation that employees had to be ready for shift prior to the shift start, which included the pre-commencement tasks listed above. Further, if an employee arrived at the commencement time for their shift without a picker, it would be regarded as unsatisfactory”.

In addition, “… if there was a consistent lateness or not having completed all pre-commencement tasks prior to the nominated time of the shift commencing, it could result in a Record of Conversation being undertaken between Mr Konnecke as the immediate supervisor and the employee.

In summary, Judge Humphreys noted,

The Court is reasonably satisfied, as a fact, that there was a clear implied direction that employees had to arrive early, prior to the shift commencing, in order to undertake the pre-commencement tasks listed above. Failures to comply with that implied direction would lead to a Record of Conversation taking place. A consistent failure to comply with the implied direction would lead to disciplinary action being considered by management. 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”. 

Another key issue addressed by the Court was whether or not the activities the employees engaged in actually constituted work. Judge Humphreys had no doubt that they did, noting,

“… the pre-commencement activities cannot be characterised as private activity in that they do not involve any activities that are of benefit to the employee, such as storing of personal effects, putting on uniforms or PPE. Each of the activities outlined above was solely to the benefit of the employer in that by the time the employee arrived at a designated location for the commencement of shift, all necessary activities for the employees to get immediately to work had been completed. There was no personal benefit to the employee in the activities carried out. Each was to the benefit of the employer. In these circumstances, the Court is satisfied that the activities carried out constitute work”.

Employers should also check the provisions of their industrial instrument. For example, the Manufacturing & Associated Industry and Occupation Award 2020 states, “Any work performed outside the standard hours of work must be paid for at overtime rates. However, any work performed by an employee prior to the spread of hours that is continuous with ordinary hours for the purpose, for example, of getting the plant in a state of readiness for production work, is to be regarded as part of the 38 ordinary hours of work”.

In situations where an employee chooses to arrive at their workplace prior to the start of their shift and sits in the lunchroom reading the newspaper or eating and drinking would not be considered to be working and, therefore, not entitled to payment.

However, prestart plant checks, cleaning amenities, loading trucks, and safety walks would all be regarded as time worked.

Shop, Distributive & Allied Employees’ Association v Aldi Foods Pty Ltd [2022] FedCFamC2G 799 (30 September 2022)

For queries about start and finish times, meal breaks, hours of work, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

Related Articles

Workforce Advisory Pty Ltd ACN 625359980 Phone 1300 925 529, 07 3607 3850 Email Office@workforceadvisory.com.au
Liability limited by a Scheme Approved under Professional Standards Legislation

@Copyright 2018 to 2023 Workforce Advisory Pty Ltd