3 min read

What has been happening in the Fair Work Commission?

Recently, the Fair Work Commission (FWC) has determined whether paid meal breaks count as ordinary hours under an enterprise agreement. In other news, the FWC has stalled on the Deliveroo appeal to wait for the High Court to shed light on what is an independent contractor.

Determining whether paid meal breaks count as ordinary hours of work

A meal break is a break from working ordinary duties during working hours for the purpose of taking a meal. Generally, it is unpaid and does not count as part of ordinary hours of work. During a meal break, employees are 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 on business of their own. It is still unpaid even if the employees may be characterised as being in some sense ‘on call’ during their meal breaks.

A meal break is different to a ‘crib break’ or ‘crib time’. A crib break is a period during which the employee may ‘down tools’ and eat but must remain in the immediate workplace and available in case of any emergency. It is paid time because the employee remains on duty throughout. A crib break taken during the ordinary hours of a shift counts as part of those ordinary hours.

Some awards and enterprise agreements provide for paid meal breaks. The question is whether the time on the breaks is counted as ordinary hours of work. This obviously has implications for calculation of overtime.

This was an issue in Howard v National Patient Transport Pty Ltd (2021). The FWC was required to determine whether a provision in an enterprise agreement entitling ambulance drivers to a paid 30-minute meal break counted as ordinary hours.

The agreement provisions required employees to take the meal at a suitable place determined by the employer and remain available throughout their meal break to respond to a job if required. Despite this, the FWC ruled a paid meal break does not form part of the ordinary hours of work.

Waiting for the High Court to shed light on what is an independent contractor

The FWC is currently dealing with an appeal against a decision by Commissioner Riordan, who ruled that a Deliveroo rider was an employee, not an independent contractor, and therefore entitled to make an unfair dismissal claim (Franco v Deliveroo Australia Pty Ltd (2021)). In light of the High Court’s comments in its 4 August 2021 decision in WorkPac Pty Ltd v Rosatto, the FWC appeal has been put on hold.

The High Court characterised Mr Rosatto’s employment entirely on the express or implied terms of his employment contract. This is at odds with court decisions, including the High Court decision in Hollis v Vabu Pty Ltd (2001), which requires consideration of the ‘totality of the relationship’ between parties in working out whether the relationship is employer/employee or principal/independent contractor. Under this approach, the terms of the contract are important, but not conclusive, of the legal character of the relationship. A worker may still be found to be an employee after regard is had to the nature of the entire relationship, even if the contract to which the worker is party ‘labels’ them as an independent contractor.

In Rosatto, the High Court appeared to suggest that this approach is not appropriate to determine the character of an employment relationship, where there is no reason to doubt that ‘the terms of that relationship are committed comprehensively to the written agreements by which the parties have agreed to be bound’. Almost certainly, the High Court will revisit this comment in the decisions it hands down to determine two appeals (Personnel Contracting and Jamsek) concerning whether a worker is an employee or independent contractor.

The FWC noted the Deliveroo appeal is likely to have significance for the gig sector of the economy and felt it was better to wait for High Court’s decisions in Jamsek and Personnel Contracting to provide authoritative guidance as to these issues.

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