2025 WAIRC 00784
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION
:
2025 WAIRC 00784



CORAM
:
INDUSTRIAL MAGISTRATE C. TSANG



HEARD
:
TUESDAY, 15 APRIL 2025



DELIVERED
:
TUESDAY, 16 SEPTEMBER 2025



FILE NO.
:
M 29 OF 2024



BETWEEN
:
PHILLIP RUSSELL SMITH


CLAIMANT





AND





CITY OF SWAN


RESPONDENT

CatchWords : INDUSTRIAL LAW – Alleged contravention of industrial agreement by the nonpayment of overtime under the incorporated award’s overtime clause – Whether the 15minute morning tea break constitutes ‘work performed at the direction of the employer’ in excess of the claimant’s ordinary weekly hours such as to entitle the claimant to overtime pay
Instruments : Local Government Industry Award 2010
City of Swan – Parks, Facilities and Engineering Enterprise Agreement 2019
Cases referred
to in reasons : Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Ltd [2017] FWCFB 3005
Csomore v Public Service Board of New South Wales (1986) 17 IR 275
Director General, Department of Education v United Voice WA [2013] WASCA 287
Fedec v The Minister for Corrective Services [2017] WAIRC 00828
Federated Municipal and Shire Council Employees Union v Shire of Albany [1990] FCA 60
Gapes v Commercial Bank of Australia Ltd [1980] FCA 26
Hospital Employees’ Industrial Union of Workers, WA v Proprietors of LeeDowns Nursing Home (1977) 57 WAIG 455
Minister for Police v Western Australian Police Force Union of Workers (1969) 49 WAIG 993
Pearson v Fremantle Harbour Trust [1929] HCA 19
Police Association (SA) v Public Service Board (SA) (1983) 5 IR 105
R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday; Ex parte Sullivan [1938] HCA 44
R v Galvin; Ex parte Metal Trades Employers’ Association [1949] HCA 12
United Workers’ Union v Metcash Trading Ltd [2021] FWC 3656
Result : Claim dismissed
Representation:
Claimant : Mr G McCorry (as agent)
Respondent : Ms J Flinn (of counsel)


REASONS FOR DECISION
Background
1 On 14 April 2025, the parties filed their Replacement Agreed Statement, stating that the agreed question to be determined in these proceedings is the following: (emphasis added)
The question to be determined at the trial is whether the Respondent contravened the Parks, Facilities and Engineering Enterprise Agreement 2019 (2019 Agreement). The Claimant’s claim is that the Respondent contravened clause 3 of the 2019 Agreement.
2 Clause 3 of the 2019 Agreement incorporates, amongst other provisions, the overtime clause of the Local Government Industry Award 2010 (2010 Award): (emphasis added)
24.1 Overtime
Unless otherwise provided, overtime means all work performed at the direction of the employer:
(a) in excess of the employee’s ordinary weekly hours as specified in clause 21.1;
3 In essence, the claimant (Mr Smith) claims that during the Claim Period (1 January 2023 to 1 January 2024), Transcript of Proceedings, 24.
the respondent (the City) contravened cl 3 of the 2019 Agreement by failing to pay overtime, arising from the daily 15minute morning tea break. He claims the 15minute morning tea break constituted ‘work performed at the direction of the employer’ under the overtime clause (cl 24.1 at [2] above), in excess of his ‘ordinary weekly hours’.
4 Mr Smith claims the value of the unpaid overtime ($771.70) and seeks an order for the payment of penalties arising from the City’s contravention of the 2019 Agreement.
5 The parties agree that:
(a) The principles to be applied to the construction of the 2019 Agreement are those set out by the Full Bench of the Fair Work Commission in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Ltd [2017] FWCFB 3005 (Berri) [114]. Replacement Agreed Statement [2].

(b) The relevant provisions of the 2019 Agreement and the overtime clause of the 2010 Award (incorporated into the 2019 Agreement by cl 3 of the 2019 Agreement), each have a plain meaning, such that it is unnecessary to consider any surrounding circumstances or extrinsic material, including earlier iterations of the 2019 Agreement and 2010 Award. Transcript of Proceedings, 17, 33–34.

(c) Of the overtime clause, only subclause (a) (at [2] above) is relevant. Claimant’s Further Submissions & Authorities [8]; Transcript of Proceedings, 24.

6 Mr Smith bears the onus of establishing that he was entitled to be paid overtime. Specifically, that he worked ‘in excess of [his] ordinary weekly hours’ of 38 hours a week.
7 Mr Smith argues that he worked 76.5 hours per fortnight, with the half-an-hour in excess of his 76 ordinary fortnightly hours being overtime, because the daily 15minute morning tea break was ‘work performed at the direction of the [City]’.
8 The City argues that the 15-minute morning tea break was not ‘work performed at the direction of the [City]’ and accordingly was not counted in Mr Smith’s ordinary fortnightly hours. Rather, the ‘work performed at the direction of the [City]’ totalled 74.25 hours per fortnight, and Mr Smith was paid as though the ‘work performed at the direction of the [City]’ totalled 76 hours per fortnight.
The evidence
9 On 14 April 2025, the parties filed their Replacement Agreed Statement, agreeing to the following facts:
11. Between 30 October 2019 and 17 November 2024, [Mr Smith’s] employment was covered by the 2019 Agreement. The 2019 Agreement:
(a) was an enterprise agreement made in accordance with sections 186, 187, and 188 of the Fair Work Act 2009 (Cth) by the Fair Work Commission;
(b) became a new State instrument on 1 January 2023 in accordance with section 80BB of the Industrial Relations Act 1979 (WA); and
(c) incorporated the clauses of the [2010 Award] as set out in clause 3 of the 2019 Agreement, including clauses 24.1 and 24.2 of the 2010 Award, as were in place on the date that the 2019 Agreement was approved.
12. Clauses 24.1 and 24.2 of the 2010 Award provided as follows:
24.1 Overtime
Unless otherwise provided, overtime means all work performed at the direction of the employer:
(a) in excess of the employee’s ordinary weekly hours as specified in clause 21.1;
(b) on days other than ordinary working days as specified in clause 21.2; or
(c) in excess of the maximum ordinary hours on any day provided by clause 21.5.
24.2 Payment for overtime
(a) Except as otherwise provided, overtime will be paid at the rate of time and a half for the first two hours and double time thereafter.
(b) Overtime worked from 12 noon on a Saturday and all day on a Sunday will be paid at the rate of double time.
(c) The payment for overtime rates is calculated on the employee’s hourly ordinary time rate.
(d) In computing overtime, each day’s work stands alone.
13. The 2010 Award was amended by the Local Government Industry Award 2020 [2020 Award] from 29 May 2020.
14. Clauses 21.1 and 21.2 of the 2020 Award are stated in the same terms as clauses 24.1 and 24.2 of the 2010 Award.
…
18. Between 2 January 2023 to 3 January 2024 (Claim Period), [Mr Smith]:
(a) was bound by the 2019 Agreement;
(b) was classified as a level 3 in Schedule 1 of the 2019 Agreement;
(e) was required to work an average of 38 ordinary hours per week (not including unpaid meal breaks) in accordance with clause 14.1 of the 2019 Agreement and;
(f) was paid for 76 ordinary hours per fortnight;
(g) worked 8.5 hours on 9 June 2023 in excess of his 76 ordinary hours per fortnight, and was paid for those additional hours the sum of $538.30;
(h) worked a 9-day fortnight in accordance with clause 14.4 of the 2019 Agreement and the section titled ‘hours of work’ in the letter of offer dated 15 April 2016;
(i) worked in accordance with a fortnightly roster. Under that fortnightly roster commencing 2 January 2023, he worked Monday to Thursday in the first week of the fortnightly roster and Monday to Friday in the second week of the fortnightly roster;
(j) was entitled to, and took, a 30 minute unpaid meal break in accordance with clause 15.1 of the 2020 Award;
(k) was entitled to, and took, a 15 minute morning tea break in accordance with his contract of employment; and
(l) the morning tea break of 15 minutes was included in, and was not taken separate from, the 8.5 hours of work each day.
19. During the Claim Period, [Mr Smith’s] roster stated his shifts were 8.5 hours per shift, plus 30 minutes for an unpaid meal break.
…
21. During the Claim Period, [Mr Smith] was required to and submitted a daily time sheet.
22. Neither [Mr Smith’s] letter of offer dated 12 April 2016, the 2019 Agreement, nor the 2020 Award expressly provided an entitlement to employees to take a morning tea break.
23. The entitlement to a 15 minute morning tea (smoko) break is an implied term of [Mr Smith’s] contract of employment.
…
25. During the Claim Period, [Mr Smith] took a 15 minute morning tea break per shift during which period [Mr Smith] was entitled to take by way of his contract of employment. He was not required to, and did not, perform work, during each morning tea break.
…
27. On the first Wednesday of the fortnightly roster, the City’s payroll team deducted 30-minutes from the final entry on the daily time card for each full time Parks Employee, Defined to mean the approximately 154 employees (of an approximate total of 233 employees) who work in the City’s Construction and Maintenance Business Unit that are covered by the [2019 Agreement]: Witness Statement of Matthew Southern [3]–‍[4].
so that the total number of ordinary hours stated to be worked for the purposes of calculating the Parks Employee’s wages is 76 hours per fortnight. Full time Parks Employees are paid for 76 hours of work per fortnight, even though they only perform work for 74.25 hours per fortnight.
10 On 28 January 2025, Mr Smith filed a witness statement, stating:
6. At roughly 9.30am each day we would stop work for a 15-minute rest break or smoko as it is known. The 9.30am break would sometimes be delayed so we could finish a particular job at a site. The leading hand would make this decision.
7. The smoko break would end when the leading hand would either say something like ‘OK let’s go’ or start up a piece of equipment like a chainsaw to begin work again.
8. Lunch was usually at 12.00 noon and was for 30 minutes. The same process was followed to end the lunch break as occurred to end the morning smoko.
…
10. We worked a regular 9-day roster of 8.5 hours per day, Monday to Friday (excluding public holidays and a lunch break of 30 minutes each day), with every second Friday off. The rosters have been in place ever since I began working for the City.
11. Each member of the crew filled out a timesheet each day. The timesheet showed the job number/work order number and the time spent at each job under the Labour hours column. The travelling times between jobs was not listed separately, instead it was divided between the jobs. The crew member who drove the vehicle would add the registration/plant number of the vehicle to their time sheet under the Equipment/Plant hours Plant # column. The daily 30-minute meal break was usually not separately recorded and neither was the 15-minute smoko. As an example, a job may have been recorded from start time 11am to finish time 1pm, but the job was noted as 1.5 hours under the Labour hours column – this indicated that a 30-minute meal break was taken in the period 11am to 1pm. As another example, a job may be noted as start time 10am to finish 12pm, with the next job being recorded as starting at 12:30pm. This indicated a 30-minute lunch break. This was universally done and understood by all crew and supervisors.
12. I signed the daily timesheets each day and the contents of them are true and correct. …
13. The daily timesheets were countersigned by my supervisor when I returned to the depot each day at either the end of my shift or the following morning. The timesheets were handed to the supervisors by either the leading hand or myself, alternatively they were put into the supervisor’s in tray if they were not present.
14. I was paid fortnightly by the City by direct deposit into my bank account and provided with a payslip each fortnight. I was paid the amounts shown on the payslips. As can be seen from the payslips I was paid for 76 hours work each fortnight and not for the 76.5 hours that I was rostered to and did work except on those occasions when I took some form of authorised leave.
11 On 18 February 2025, the City filed a witness statement of Matthew Southern, Manager of Construction and Maintenance, stating:
6. Parks Employees, including [Mr Smith], are required to work an average of 38 hours per week, not including unpaid meal breaks.
7. All full time Parks Employees, including [Mr Smith], are rostered to work 76 hours per fortnight, and are paid for 76 hours per fortnight unless there is approved unpaid leave or overtime hours worked.
8. Parks Employees, including [Mr Smith], are entitled to, and take, a 30-minute unpaid meal break each shift.
9. In addition to a 30-minute unpaid meal break, Parks Employees, including [Mr Smith], are entitled to, and take, a 15-minute morning tea break each shift. The entitlement to a 15-minute morning tea break is not recorded in the [2019 Agreement].
…
18. Despite only being required to work a maximum of 76 ordinary hours per fortnight, Parks Employees record 8.5 hours on their daily time cards, which they complete and submit to their supervisor at the end of each day. Parks Employees record 8.5 hours on their daily time cards each day because Parks Employees are rostered for 9 hours per day (inclusive of a 30minute unpaid meal break each shift). However, full time Parks Employees do not actually work 76.5 hours a fortnight (i.e., 8.5 hours multiplied by 9 days). Parks Employees, including [Mr Smith], perform work for 8 hours and 15 minutes during each 9 hour shift. This is because Parks Employees, including [Mr Smith]:
(a) do not perform any work during their 15-minute morning tea break taken each shift. I regularly observe Parks Employees taking their morning tea breaks at around 9:30am each day. I usually observe Parks Employees sitting together on stools, under trees, or sitting in their trucks using their mobile phones; and
(b) also do not perform any work during their 30 minute meal break taken each shift.
Daily time cards
19. Parks Employees, including [Mr Smith], are required to record and submit a daily time card. …
20. When completing daily time cards, Parks Employees are required to record the time spent at each location against a specific job number or work order number. The purpose is so the City’s labour, plant and equipment can be appropriately internally costed to a particular City asset. This allows the City to track and report expenditure for each of the City’s assets in its financial reports and against the [City’s Construction and Maintenance Business Unit’s (BU’s)] budget.
21. The time cards are provided to the City’s payroll team, who enter the details, including the job numbers or work order numbers, into the City’s payroll system.
22. The unpaid lunch break is recorded on a Park Employee’s daily time card. The unpaid lunch break may be recorded by:
(a) expressly recording 30 minutes for lunch on the daily time card;
(b) omitting 30 minutes between the end of a job and the start of the next job; or
(c) recording a block of time between, for example, 10am – 3:30pm but only recording 5 hours of work and not 5.5 hours.
23. It is irrelevant which method a Parks Employee uses to record their lunch break in the time sheet, so long as payroll can clearly identify that a 30-minute lunch break was taken.
24. The 15-minute morning tea break has historically not been recorded as a break in the Parks Employees’ daily time cards. As a result, the time for each 15-minute morning tea break is charged to a job number or work order number. As the manager of the BU responsible for managing the BU’s budget, this is not of a concern to me, as the tracking of expenditure by the use of job numbers and work order numbers is for estimation purposes only. The internal cost of Parks Employees taking a 15 minute morning tea break each shift against the BU’s budget is not relevant to the BU’s reporting and budgeting.
25. As stated at paragraph 18, Parks Employees record 8.5 hours per day on their daily time cards. On the first Wednesday of the fortnightly roster, the City’s payroll team deduct 30-minutes from the final entry on the daily time card for each full time Parks Employee, so that the total number of ordinary hours stated to be worked for the purposes of calculating the Parks Employee’s wages is 76 hours per fortnight. Full time Parks Employees are paid for 76 hours of work per fortnight, even though they only perform work for 74.25 hours per fortnight.
26. The payroll system does not record the 15-minute morning tea break taken by each Parks Employee during each shift in a fortnightly cycle.
Recording overtime hours
27. If a Parks Employee is required to work overtime, they must record the additional hours on their daily time card, and identify those hours as overtime by including the identifier ‘OT’.
28. When overtime is required to be worked, the Parks Employee’s supervisor will submit an overtime request form to their coordinator for approval. The coordinator will then approve the overtime request and send the overtime request form to the Parks Employee’s manager.
29. All daily time cards submitted by Parks Employees in each fortnightly cycle are collated and sent to payroll by 12pm on the Monday of each pay week. The Parks Employee’s manager will receive a pay report for approval at approximately 4pm on the Tuesday of each pay week.
30. I receive a report outlining the wages to be paid to all employees in the BU each fortnight, including Parks Employees. If overtime hours have been worked by an employee, I ensure that the correct overtime hours are paid by reference to the request for overtime approved by the relevant coordinator. If there are any anomalies, I will make enquiries with the City’s payroll team by 9:30am on the Wednesday of each pay week (i.e., pay day). Once any anomalies are rectified, pays are distributed into the employees’ bank accounts late on Wednesday afternoon. This process also applies to any overtime hours worked by [Mr Smith] (if any).
The parties’ submissions
12 Mr Smith relies on his written submissions filed on 12 March 2025 and 14 April 2025, and submits that:
(a) He was contracted to work 76.5 ordinary hours in each fortnightly period, was rostered to work 76.5 hours per fortnight, completed timesheets reflecting the roster, but was only paid as though he worked 76 ordinary hours per fortnight.
(b) His rostered hours are his hours worked, subject only to the unpaid meal break.
(c) He was rostered to work 8.5 hours per day, across 9 days per fortnight, totalling 76.5 hours.
(d) The 8.5 hours that he was rostered to work each day, includes time spent travelling between sites. Travel time constitutes time worked even though it does not involve his physical exertion, as the only person engaging in physical exertion is the driver of the vehicle transporting the workers from one site to the next during the course of the day.
(e) The halfanhour exceeding 76 ordinary fortnightly hours was ‘work performed at the direction of the [City]’ because:
(i) His contract contained an express directive (the Hours of Work clause) which required him to work an 8.5hour day, over 9 days each fortnight: Exhibit 1: Document 11: Letter of offer – General Hand/Arborist dated 5 September 2022 (Exhibit 1, 312–‍320).

Hours of Work
At present, the [City] operates a 9day fortnight within the Construction and Maintenance and Facilities Management areas. Your days of work will be five days one week and four days the second week, between Monday and Friday. On working days your hours of work will be 6.30am to 3.30pm, or as directed according to operational requirements, with half an hour for lunch.
(ii) The extra half-an-hour is in excess of his contracted ordinary hours, and contracted remuneration for working ordinary hours, of 76 hours per fortnight:
SUBSTANTIVE POSITION
…
Employment Status: Permanent Fulltime …
Hours per fortnight: 76
Remuneration
This role is classified PEF3 in accordance with the [2019 Agreement] and [2010 Award]. The base salary for this classification is $64,387.72 per annum and the leave loading allowance is $866.76 per annum, totalling $65,254.48 per annum.
(iii) The 15minute morning tea break is ‘at the direction of the City’, because the City is directing him to take the break, starting at a particular time and finishing at a particular time.
(iv) The 15minute morning tea break is ‘work performed’, because the City is directing him to do nothing during the break.
(v) He is entitled to overtime pay because ‘work performed’ does not need to involve physical effort. The City directed him to do nothing during the break. It was a lawful direction, and constitutes ‘work performed’, regardless of the effort or lack of effort involved.
(f) The timesheets do not separately record the 15minute morning tea break because they are considered time worked.
13 Mr Smith relies on the following decisions in support of his argument that the 15minute morning tea break counts as time worked:
(a) Pearson v Fremantle Harbour Trust [1929] HCA 19 (Pearson).
(b) R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday; Ex parte Sullivan [1938] HCA 44 (Darling Island).
(c) Minister for Police v Western Australian Police Force Union of Workers (1969) 49 WAIG 993 (Minister for Police).
(d) Hospital Employees’ Industrial Union of Workers, WA v Proprietors of LeeDowns Nursing Home (1977) 57 WAIG 455 (Lee-Downs).
(e) Gapes v Commercial Bank of Australia Ltd [1980] FCA 26 (Gapes).
(f) Csomore v Public Service Board of New South Wales (1986) 17 IR 275 (Csomore).
(g) Federated Municipal and Shire Council Employees Union v Shire of Albany [1990] FCA 60 (Shire of Albany).
14 Mr Smith submits that while he agreed to the facts stated in the Replacement Agreed Statement [25] and [27], his agreement to these facts is to be understood in the context that ‘perform work’ should be construed as the involvement of physical effort: (emphasis added)
25. During the Claim Period, [Mr Smith] took a 15 minute morning tea break per shift during which period [Mr Smith] was entitled to take by way of his contract of employment. He was not required to, and did not, perform work, during each morning tea break.
27. [F]ull time Parks Employees are paid for 76 hours of work per fortnight, even though they only perform work for 74.25 hours per fortnight.
15 Mr Smith submits that to ‘perform work’ means to perform physical labour. He says that he agreed to the facts in the Replacement Agreed Statement [25] and [27] because he agrees that during the 15minute morning tea break, he is not required to, and does not, perform physical labour. Likewise, when he is travelling from one site to another, but is not the driver of the vehicle transporting the workers, he does not perform physical labour.
16 Mr Smith submits that, under the terms of his contract, the City is required to pay him for 76.5 hours per fortnight, even if the City does not require him to perform physical labour during all of those 76.5 hours.
17 The City relies on its written submissions filed on 2 April 2025 and 14 April 2025, and submits that:
(a) The preamble to the overtime clause requires two conditions to be met:
(i) Firstly, that work be performed.
(ii) Secondly, that the work performed is ‘at the direction of the employer’.
(b) The first condition is not met because it is an agreed fact that Parks Employees, which includes Mr Smith, ‘are paid for 76 hours of work per fortnight, even though they only perform work for 74.25 hours per fortnight.’ Replacement Agreed Statement [27].
Therefore, it cannot be the case that Mr Smith worked more than 76 ordinary hours per fortnight.
(c) Overtime must be ‘work performed’. Mr Smith seeks to draw an analogy between his taking of the 15minute morning tea break with an employee being stood down from work at the direction of the employer or agreeing to be oncall or on standby or travelling during work. Those situations are not analogous because the employee in each case is still at the direction of the employer – the employee remains subject to the control of the employer or must be ready, willing and able to work when directed.
(d) There is no evidence that Mr Smith was ready, willing and able to work if directed. It is both an agreed fact, and Mr Smith’s evidence, that he took the 15minute morning tea break each day and he was not required to work and did not work during the break. Witness Statement of Phillip Russell Smith [6]; Replacement Agreed Statement [25].

(e) During the 15minute morning tea break, Mr Smith was not subject to the control of the City and was free to do as he pleased. Such periods do not constitute work performed: R v Galvin; Ex parte Metal Trades Employers’ Association [1949] HCA 12 (Galvin); United Workers’ Union v Metcash Trading Ltd [2021] FWC 3656 (Metcash) [24].
(f) The 15minute morning tea break is the same as the 30minute lunch break in that during the lunch break, Mr Smith is not performing any work and is not at the control of the City. Neither the 15minute morning tea break nor the 30minute lunch break counts as time worked.
(g) The second condition is not met because it is an agreed fact that Mr Smith has an implied contractual entitlement to a 15minute morning tea break, which Mr Smith exercised each shift. Replacement Agreed Statement [23], [25].
As Mr Smith had a contractual entitlement to take the break, the City could not direct him to work during those 15minutes. If the City sought to direct Mr Smith to work, Mr Smith was legally entitled to refuse to work or could sue the City for breach of his employment contract. Arguably, only if the City had given a direction to Mr Smith to perform work during the 15minute break, would the time count towards his ordinary hours of work. There is no evidence that the City directed Mr Smith to work during the 15minute morning tea break.
(h) Further, as the implied contractual entitlement is to take a 15-minute morning tea break, the City is not directing Mr Smith to take the break and not perform work. The City is fulfilling its contractual obligation to provide Mr Smith with a 15minute break. There is no direction. Arguably, the only direction is the time that the break starts, based on operational requirements of the day.
(i) There is nothing in Mr Smith’s contract, whether express or implied, that requires the 15minute morning tea break to be regarded as time worked.
(j) Contrary to Mr Smith’s submission that the contract required the City to pay him for 76.5 hours per fortnight that he was contractually required to work, the contract expressly states Mr Smith’s fortnightly hours as being 76:
SUBSTANTIVE POSITION
…
Employment Status: Permanent Fulltime …
Hours per fortnight: 76
(k) Mr Smith agrees the contract provided that he was ‘to work 76 hours per fortnight’. Claimant’s Further Submissions & Authorities [12(b)].

(l) The reference, ‘[o]n working days your hours of work will be 6.30am to 3.30pm’ in the Hours of Work clause of the contract, refers to the spread of hours in which the 76 ordinary hours of work stipulated on the first page of the contract (at [17(j)] above), must be worked. While the clause is headed ‘Hours of Work’, the reference to the lunch break within the clause (‘[o]n working days your hours of work will be 6.30am to 3.30pm … with half an hour for lunch’), is consistent with the clause referring to the span of hours during which the ordinary hours of work are to be worked.
(m) Further, the span of hours in the clause is indicative. The parties agree that the hours during which ordinary hours are worked varies according to the season. Witness Statement of Matthew Southern [17]; Replacement Agreed Statement [20].

(n) The Hours of Work clause does not refer to Mr Smith’s rostered hours.
(o) Mr Smith was neither contracted to work, nor did he work, 76.5 hours per fortnight.
(p) As outlined by the evidence of Mr Southern, which was undisturbed on crossexamination, the purpose of the timesheets is not to record the employee’s hours of work; it is to record the time spent at each site for internal costing and accounting purposes. There is a different system for the purposes of recording overtime on the timesheet that requires the approval for the working of overtime by the supervisor, coordinator and manager.
Consideration
Principles
18 While the parties agree that the principles to be applied to the construction of the 2019 Agreement are those in Berri (at [5(a)] above), it is the following decisions of the Industrial Appeal Court (IAC) and the Full Bench of the Western Australian Industrial Relations Commission (Full Bench) that are binding on the court:
(a) Director General, Department of Education v United Voice WA [2013] WASCA 287 (Director General); and
(b) Fedec v The Minister for Corrective Services [2017] WAIRC 00828 (Fedec).
19 Director General is an IAC decision delivered on 18 December 2013, in which Pullin J (with Le Miere J agreeing at [117]) outlined the principles for construing an industrial agreement at [18]–‍[20], [22].
20 Director General [18]–[19] is cited in Fedec [23] at [22] below.
21 Director General [20] and [22] states: (citations truncated)
20 The phrase ‘district office’ is ambiguous if considered alone, but it would be wrong to concentrate only on that phrase. The phrase has to be construed in the context of the Agreement read as a whole: Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36. …
22 Allowing for the fact that industrial agreements are not always framed with that careful attention to form and draftsmanship which one expects to find in an Act of Parliament (see [Geo] A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 [(Geo)], 503) …
22 Fedec is a Full Bench decision delivered on 19 September 2017, in which Smith AP and Scott CC outlined the approach to be applied when interpreting an industrial agreement: [21]–‍[23]: (citations truncated)
Interpreting an industrial agreement – general principles of interpretation
21 The approach that is to be applied when interpreting an industrial agreement is well established. This is:
(a) Industrial agreements are usually not drafted with careful attention to form by persons who are experienced in drafting documents that have legal effect.
(b) The task of construction of an industrial agreement is to be approached in a way that allows for a generous construction: City of Wanneroo v Holmes (1989) 30 IR 362 [Holmes].
(c) Industrial agreements are made for industries in light of the customs and working conditions of each industry and must not be interpreted in a vacuum divorced from industrial realities: [Geo]; [Holmes] (378–379) (French J).
22 The general principles that apply to the construction of contracts and other instruments also apply to the construction of an industrial agreement. In Re Harrison; Ex parte Hames [2015] WASC 247, Beech J said [50]–[51]:
The general principles relevant to the proper construction of instruments are well-known. In summary:
(1) the primary duty of the court in construing an instrument is to endeavour to discover the intention of the parties as embodied in the words they have used in the instrument;
(2) it is the objectively ascertained intention of the parties, as it is expressed in the instrument, that matters; not the parties’ subjective intentions. The meaning of the terms of an instrument is to be determined by what a reasonable person would have understood the terms to mean;
(3) the objectively ascertained purpose and objective of the transaction that is the subject of a commercial instrument may be taken into account in construing that instrument. This may invite attention to the genesis of the transaction, its background and context;
(4) the apparent purpose or object of the relevant transaction can be inferred from the express and implied terms of the instrument, and from any admissible evidence of surrounding circumstances;
(5) an instrument should be construed so as to avoid it making commercial nonsense or giving rise to commercial inconvenience. However, it must be borne in mind that business common sense may be a topic on which minds may differ; and
(6) an instrument should be construed as a whole. A construction that makes the various parts of an instrument harmonious is preferable. If possible, each part of an instrument should be construed so as to have some operation (Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7 [35] (French CJ, Hayne, Crennan & Kiefel JJ); Kidd v The State of Western Australia [2014] WASC 99 [122]; Red Hill Iron Ltd v API Management Pty Ltd [2012] WASC 323 [106]–‍[112]; Primewest (Mandurah) Pty Ltd v Ryom Pty Ltd [2014] WASCA 28 [55] (Martin CJ, Pullin & Murphy JJA agreeing)).
These general principles apply in the construction of an industrial agreement ([Director General] [18]–‍[20] (Pullin J, Le Miere J agreeing), [83] (Buss J)). The industrial character and purpose of an industrial agreement is part of the context in which it is to be construed (Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10 [Amcor] [2] (Gleeson CJ and McHugh J); [Director General] [81]; see also [Amcor] (Kirby J), 129–130 (Callinan J)).
23 To these principles, the following observations made by Pullin J in [Director General] [18]–[19] should be added:
The Agreement has to be construed to determine what the intention of the parties was at the time the Agreement was entered into. This has to be determined by ascertaining what a reasonable person would have understood the words of the Agreement to mean taking into account the text, the surrounding circumstances known to the parties and the purpose and object of the transaction: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 [40]; Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 [22].
Surrounding circumstances may only be taken into account if the ordinary meaning of the words used by the parties is ambiguous or susceptible of more than one meaning: Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24, 352; McCourt v Cranston [2012] WASCA 60 [23].
23 Applying Director General and Fedec, the starting point is to ascertain what a reasonable person would have understood the words ‘work performed at the direction of the employer’ in the overtime clause to mean; with the overtime clause to be construed in the context of the 2019 Agreement read as a whole, and with a construction that makes the various parts of the 2019 Agreement harmonious to be preferable.
The meaning of the phrase ‘work performed at the direction of the employer’
24 The overtime clause defines overtime as ‘all work performed at the direction of the employer’ that is in excess of the employee’s ordinary weekly hours.
25 As outlined in the Replacement Agreed Statement [18(k)] (at [9] above), it is an agreed fact that Mr Smith was entitled to, and took, a 15minute morning tea break each day.
26 As outlined at [12(e)(iii)–(v)] above, Mr Smith contends those 15minutes constitute ‘work performed at the direction of the employer’ such as to entitle him to overtime pay because the City directed him to take the 15minute morning tea break at a specific time and to do nothing for the duration of the break, and such a direction (namely, to not perform physical labour) counts as time worked.
27 The overtime clause states that overtime means all ‘work performed at the direction of the employer’ in excess of the employee’s ordinary weekly hours. Therefore, for overtime to be payable, requires the satisfaction of both ‘work performed’ (first requirement) and that the work performed be ‘at the direction of the employer’ (second requirement).
28 The Macquarie Dictionary defines ‘work’ as:
1 exertion directed to produce or accomplish something; labour; toil.
2 that on which exertion or labour is expended; something to be made or done; a task or undertaking.
3 productive or operative activity.
4 manner or quality of working.
…
6 employment; a job, especially that by which on earns a living.
7 material, things, etc., on which one is working, or is to work.
8 the result of exertion, labour, or activity.
9 a product of exertion, labour, or activity.
…
12 a place or establishment for carrying on some form of labour or industry.
…
17 to do work, or labour; exert oneself.
18 to be employed, as for one’s livelihood.
…
20 to act or operate.
29 ‘Performed’ is the past tense of ‘perform’, and the Macquarie Dictionary defines ‘perform’ as:
1 to carry out; execute; do.
2 to go through or execute in due form.
3 to carry into effect; fulfil.
…
8 to fulfil a command, promise, or undertaking.
9 to execute or do something.
…
12 to go through any performance.
30 The Macquarie Dictionary defines ‘direction’ as:
1 the act of directing pointing, aiming, etc.
…
5 guidance; instruction.
6 instructions.
7 order; command.
8 management; control.
9 a directorate.
31 While ‘work’ may refer to ‘employment’ (see definitions 6 and 18 at [28] above), or the place at which work is performed (see definition 12 at [28] above), the overtime clause uses the composite phrase, ‘work performed’.
32 Applying the ordinary meaning of ‘work’ and ‘performed’ at [28]–‍[29] above, I find the composite phrase, ‘work performed’ to mean the exertion, labour or activity that is carried out, executed or done by the employee. Specifically, that the composite phrase, ‘work performed’ means the labour or activity performed or engaged in by the employee.
33 Applying the ordinary meaning of ‘direction’ at [30] above, I find the balance of the overtime clause, requiring the ‘work performed’ be ‘at the direction of the employer’ to mean the work which the employer directed, instructed, or required the employee to perform.
34 It is only the work that the employer requires the employee to perform, in excess of their ordinary weekly hours, that is eligible for overtime pay. The employee is not eligible for overtime pay, even for work in excess of their ordinary weekly hours if the employer does not require the employee to perform that work.
35 For the reasons outlined at [27]–‍[34] above, I find the phrase, ‘work performed at the direction of the employer’ to mean the labour or activity performed by an employee that is required by the employer.
Harmonious construction
36 As stated in Fedec [22] (at [22] above), the 2019 Agreement should be construed as a whole, with a construction that makes the various parts of the 2019 Agreement harmonious to be preferable.
37 Applying Fedec [22], and on review of the 2019 Agreement as a whole, I find the construction of the phrase ‘work performed at the direction of the employer’ at [35] above, is a construction that is harmonious with cls 20.3 and 24 of the 2019 Agreement.
38 Clause 20 of the 2019 Agreement states: (emphasis added)
20. JOB FINISH
20.1 All employees finish at the Depot at the agreed time unless otherwise directed with sufficient time being allowed to complete the washing of vehicles and completion of necessary paperwork.
20.2 No employee will leave the depot prior to the agreed time without the expressed authority from their relevant coordinator.
20.3 If employees do not have sufficient work to keep them fully occupied until their finishing time, then they should notify their supervisor who will arrange additional duties to fill this time.
39 As outlined at [38] above, cl 20.3 provides that ‘work’ involves an employee being ‘occupied’ and involves the performance of ‘duties’. This is harmonious with the phrase ‘work performed’ having the meaning at [32] above.
40 Clause 24 of the 2019 Agreement states: (emphasis added)
24. PROJECT COMPLETION
24.1 From time to time the City is faced with the additional cost of returning to a job for a minimal amount of time because of knock off arrangements. Employees who believe that the project can be completed with an additional hour of work, may after consultation with the supervisor elect to finish the project with selfauthorised overtime to a maximum of one hour only. On occasions when this does not suit all the members transport may be arranged for employees to return to the depot providing that occupational health and safety requirements are complied with.
41 As outlined at [40] above, cl 24.1 provides that ‘hour of work’ involves an employee undertaking what is necessary to ‘finish the project’. The clause provides that overtime to a maximum of one hour is payable if an employee performs an ‘hour of work’ to ‘finish the project’. The phrase ‘hour of work’ in cl 24.1 clearly provides for the employee performing labour for an hour. This is harmonious with the phrase ‘work performed’ having the meaning at [32] above.
Application of the construction of ‘work performed at the direction of the employer’
42 As outlined at [26] above, Mr Smith contends that during the 15minute morning tea break the City directed him to ‘do nothing’, a direction he followed.
43 Given my finding at [32] above, that ‘work performed’ in the overtime clause requires the employee to have engaged in ‘activity’, I find Mr Smith’s contention that a period of ‘inactivity’ (at [42] above) constitutes ‘work performed’ under the overtime clause to be unsustainable.
44 Accordingly, I find that Mr Smith has not established that the 15minute morning tea break meets the first requirement of the overtime clause at [27] above, of constituting ‘work performed’.
45 As outlined at [12(e)(iii)–‍(iv)] above, Mr Smith argues that the City directed him to take the 15minute morning tea break. As outlined at [17(h)] above, the City argues that it did not direct Mr Smith to take the 15minute morning tea break, but was providing him with the 15minute morning tea break in fulfillment of its contractual obligation.
46 Given my findings at [44] above, that Mr Smith has not established the first requirement of the overtime clause, it is unnecessary to determine whether the City directed Mr Smith to take the 15minute morning tea break in accordance with the second requirement of the overtime clause at [27] above.
47 As outlined in the Replacement Agreed Statement [22]–[23] (at [9] above), it is an agreed fact that Mr Smith’s entitlement to the 15minute morning tea break was an implied term of his contract. As outlined at [1] above, the agreed question to be determined is whether Mr Smith had an entitlement to overtime pay pursuant to the overtime clause in the 2010 Award, as incorporated into the 2019 Agreement by cl 3 of the 2019 Agreement. Accordingly, it is unnecessary to deal with the parties’ arguments regarding the contract, specifically their arguments regarding the construction of the ‘Hours of Work’ clause.
48 Furthermore, it is unnecessary to deal with the parties’ arguments regarding the content of, and purpose for, Mr Smith’s timesheets.
Decisions relied upon by Mr Smith that a rest break can be ‘time worked’
49 As outlined at [13] above, Mr Smith relies on the following decisions in support of his argument that the 15minute morning tea break counts as time worked:
(a) Pearson.
(b) Darling Island.
(c) Minister for Police.
(d) Lee-Downs.
(e) Gapes.
(f) Csomore.
(g) Shire of Albany.
50 For the reasons that follow, I find that these decisions do not support Mr Smith’s claim.
51 Pearson is a High Court of Australia decision, delivered on 10 September 1929, in which a harbour worker claimed compensation under the Workers’ Compensation Act 1912–‍1924 (WA), in respect of injuries sustained as a result of an accident arising in the course of his employment.
52 Knox CJ, Rich and Dixon JJ said in Pearson, 329–‍330:
We think that the result of these authorities is to show that the words ‘arising in the course of the employment’ describe a condition which is satisfied if the accident happens while the workman is doing something in the exercise of his functions although it is no more than an adjunct to or an incident of his service.
Upon the facts of this case the workman (the appellant) was going from one part of his employer’s premises to another during hours of labour for which he was paid and when he was bound to obey his employer’s lawful commands, and he was doing so for the purpose of more conveniently supplying to a gang of men that which the employer habitually provided, generally as a matter of statutory obligation, sometimes without that compulsion, but in like case. The convenience served was not only that of the gang because it facilitated the supply of water, a thing which the respondent was bound to do when work was ‘at a ship’ and which it did in the same way although the ship was not yet, or no longer was, alongside.
53 Pearson involves the proper construction of the phrase ‘arising in the course of the employment’ in the context of workers’ compensation legislation. Pearson does not involve a consideration of whether the time during which an employee is taking a break could constitute time worked for the purposes of determining an entitlement to payment.
54 Darling Island is a High Court of Australia decision, delivered on 1 September 1938, in which two members of the Waterside Workers’ Federation were directed to place 35 bars of lead into slings, refused, and were charged with committing a breach of the award, which contained a clause stating, ‘any refusal to carry out the reasonable instructions of the employer or his representative as to the quantity or weight of cargo to be placed in slings … shall be deemed to be a breach of this award by the individual workman concerned’.
55 In separate reasons, Latham CJ, Rich, Starke and Dixon JJ, each found that the instruction to load 35 bars of lead into slings was reasonable, and therefore the employees were in breach of the award by only loading 30 bars into the slings.
56 Dixon J said in Darling Island, 622–‍623: (references omitted)
[W]hen the award was framed, the expression ‘reasonable instructions’ was adopted in describing the employees’ duty to obey. But what is reasonable is not to be determined, so to speak, in vacuo. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case an award, governing the relationship, supply considerations by which the determination of what is reasonable must be controlled. When an employee objects that an order, if fulfilled, would expose him to risk, he must establish a case of substantial danger outside the contemplation of the contract of service...
But I think that, upon a proper understanding of the award, a finding that the instruction was unreasonable could not be sustained. The rejected medical opinion could have made no difference in the result. It could not do so because it provides considerations which under the terms of the award should primarily be addressed to a board of reference, and because medical disapproval could not overcome the effect, upon such a question, of the fact that the instruction following a longstanding practice, a practice, moreover, supported by the result of the previous board of reference.
57 Darling Island involves the proper construction of the phrase ‘reasonable instructions’ in the context of a case where the issue for determination was whether the employees were rightly convicted for breaching a provision of the award imposing an obligation on employees to comply with a reasonable instruction of the employer regarding the quantity or weight of cargo to be placed in slings. Darling Island does not involve a consideration of whether the time during which an employee is taking a break could constitute time worked for the purposes of determining an entitlement to payment.
58 Minister for Police is an IAC decision delivered on 21 November 1969, involving the proper construction of cl 19(1) of the Police Award 1965, that ‘[a]ll time worked in excess of eighty (80) hours per fortnight shall be regarded as overtime.’
59 Burt J (with Wickham J agreeing at 993) said in Minister for Police, 993:
I think the outcome of the appeal really turns entirely upon the proper construction of clause 19(1) of the award and to the circumstances of the case. So in the end it really comes down to a question as to whether a policeman who is rostered in the way this particular policeman was – whether the time during which that state of affairs is operating is time worked within the meaning of clause 19(1).
As soon as one sees that throughout that period he is subject to continual command of the employer, if I can refer to the commissioner in that way, or to the Honourable the Minister in that way, to stay at home and to abstain from doing certain things and to be ready to work in a more extensive manner should he be called upon, I think one is compelled to say that that period is time worked within the meaning of clause 19(1) of the award. That is the finding that the learned magistrate came to and in my opinion, he was correct and the appeal should be dismissed.
60 Minister for Police involved a police officer who was directed to stay at home and to abstain from doing certain things to ensure readiness for immediate recall to duty. The IAC held that such period, in the context of the Police Award 1965 which made no separate provision for standby, oncall or waiting allowances, constituted time worked because the officer was subject to the continual command of the employer.
61 Minister for Police does not support Mr Smith’s argument because the period of time under consideration in that case was effectively an on-call period, and oncall periods involve ongoing employerimposed restrictions to ensure readiness to perform work. This is not analogous to the 15minute morning tea break; I accept the respondent’s submissions at [17(d)–‍(g)] above, that during the 15minute morning tea break, Mr Smith was not restricted or required to be available to perform work.
62 Lee-Downs is an IAC decision delivered on 27 April 1977, involving the proper construction of cl 8(1) of the Nursing Aides and Nursing Assistants’ (Private) Award, that ‘[a]ll time worked in excess of the ordinary hours as prescribed in clause 7 hereof shall be paid’ at overtime rates.
63 Burt CJ (with Wallace J agreeing at 457) said in Lee-Downs, 456:
[T]he worker was on the premises pursuant to instructions received from the employer ‘to report any emergencies which arose relative to the inmates of the home’ it follows that the whole of the time during which she was on the premises pursuant to those instruction was ‘time worked’ within the meaning of the award. It may be that an emergency seldom arose and it may be that an emergency never arose but that, I think, would make no difference. The worker was not on call in the sense that she could be called upon by the employer to work. She was, I think, under a continual duty to act if called by a patient and she falls into the category of persons who serve while waiting. I would allow this appeal.
64 LeeDowns involved nursing assistants of a nursing home requested to sleep on the premises, with the object of reporting any emergency that arose relative to the inmates of the home. The IAC held that the period under consideration constituted time worked because the nursing assistants were doing what they were doing upon instructions given by their employer.
65 LeeDowns does not support Mr Smith’s argument because during the period of time under consideration in that case, the employees were under a continual duty to act. This is not analogous to the 15minute morning tea break; I accept the respondent’s submissions at [17(d)–‍(g)] above, that during the 15minute morning tea break, Mr Smith was not under a duty to act. On the contrary, Mr Smith agrees that during the 15minute morning tea break, the City directed him to do nothing (see [12(e)(iv)–‍(v)] above).
66 Gapes is a Federal Court of Australia (FCA) decision, delivered on 13 March 1980, involving the proper construction of cl 12(c) of the Bank Officials’ (Federal) (1963) Award, entitling the bank to make deduction in accordance with a formula in respect of every hour or part of an hour that an employee ‘has been absent from duty without the consent of the Bank during the period in respect of which the salary is paid’. Mr Gapes refused to perform certain of his duties as an accountant, in conformity with an industrial campaign which was being waged by the Australian Bank Employees’ Union. While the bank initially directed Mr Gapes to cease work, it subsequently waived this direction and Mr Gapes worked in his job for the three days for which the bank refused to pay Mr Gapes his salary.
67 Smither and Evatt JJ said in Gapes, 4, 7:
The award may specify whether the employee’s remuneration shall be earned hourly, weekly or otherwise and whether that remuneration is payable periodically as part of a salary in a particular classification of employment. In cases of the latter kind the obligation to pay salary as and when it is expressed to be payable could be made conditional on performance of all the duties of an employee in the relevant classification of employment or it may be created subject to no such condition. In this case it is impossible to find any factor by reference to which the obligation to pay salary, being expressed absolutely, may be construed as subject to an implication that the obligation to pay is conditional on the duties of the employment being performed to some lesser or greater degree…
The critical issue between the parties was therefore whether, according to the terms of the award properly construed, there was created an unconditional obligation to pay on the date specified for payment, the fortnightly component of salary falling due under the award in respect of the fortnight during part of which the employee was in default in respect of performance of part of his duties. In our opinion the award properly construed did create an unconditional obligation to pay the fortnightly component on the date provided in the award for payment thereof.
Whether when an employee refuses to perform a significant part of his duties and the employer rejects performance of the remaining part of the duties and excludes the employee from rendering such part performance, the state of employment upon which the relevant obligations under the award depend, has come to an end or is suspended is a question that does not arise here. … [I]n this case the employer did not reject part performance. Accordingly the state of employment upon which the obligations of the award depended continued at all times.
68 Gapes involved an award clause that entitled Mr Gapes to receive his annual salary on a fortnightly basis. The FCA held that the bank’s obligation to pay Mr Gapes the fortnightly component of his annual salary was absolute; the FCA found no provision in the award making the obligation to pay Mr Gapes the fortnightly component of his annual salary conditional on him performing his duties in full. The FCA found that the award clause entitling the bank to make deduction for every hour or part hour an employee is absent from duty could not be relied upon by the bank as Mr Gapes was not absent from duty.
69 Gapes does not assist Mr Smith. Firstly, Gapes does not involve an employee seeking payment for a period of inactivity. Mr Gapes was not performing no duties; rather he was performing his duties but not the full scope of duties because of an industrial campaign. Secondly, unlike the award in Gapes, which required Mr Gapes to be paid an annual salary divisible by the fortnightly frequency for payment, the 2019 Agreement provides for Mr Smith to be paid an annual base salary rate, divided by 52 and then divided by 38 to obtain the base salary hourly rate, which Mr Smith is to be paid for each ordinary hour worked by him. Mr Smith is not claiming an entitlement to his annual salary for working his ordinary weekly hours of 38 hours a week. Rather, Mr Smith is claiming overtime, under an overtime clause which expressly imposes a condition on the payment of overtime, namely that it is only payable where the employee performs work at the direction of the employer in excess of the employee’s ordinary weekly hours of 38 hours a week.
70 Csomore is a Supreme Court of New South Wales decision, delivered on 4 November 1986, involving two public service officers who, in conformity with a ban imposed by the Public Service Association of New South Wales (Association) on the processing of cheques received in government offices and the issuing of receipts, as part of the industrial campaign waged by the Association, declined to carry out instructions given to them designed to ensure that a full range of work was carried out. The defendant did not pay the public service officers for the days when they failed to carry out work assigned to them, relying on the ‘no work, no pay’ principle, and the public service officers instituted the proceedings to recover the pay withheld.
71 Rogers J said in Csomore, 284-285:
The facts in Gapes provide the crucial point of difference. In that case, the bank accepted the work that was in fact carried out by the plaintiff …
Here, the plaintiffs were told not to work and that their work would not be accepted unless they carried out the full range of duties. Neither the statute nor the award has the effect of foisting upon the employer the obligation to accept a willingness on the part of the employee to perform some of the duties but not others. The employer is entitled to reject the offer of partial service and insist on the full range of duties being performed. It is not for the employee to make a choice of what he or she will do and not do. The employer may, of course, waive the entitlement to reject part performance, may accept the work done. It is difficult to know with what greater clarity the defendant could have signalled its refusal to accept part performance. …
In my view, the plaintiffs are not entitled to the salary claimed.
72 Csomore does not assist Mr Smith. The issue for determination in Csomore was whether the employees were entitled to the payment of salary, notwithstanding their refusal to carry out a portion of their duties. Rogers J held that, an employer is not obliged to accept an employee’s part performance of their duties; an employer may waive the requirement for the employee to perform their full duties, or they may insist on the employee performing their full duties and refuse to accept part performance. In the latter situation, Rogers J held that the employee would not be entitled to payment of their salary. Rather than assisting Mr Smith, Csomore supports the argument that even if an employee performs work, if the work that they perform is not the full scope of their duties and the employer does not waive the requirement for the employee to perform the full scope of their duties, the employee is not entitled to payment for the work performed.
73 Shire of Albany is a FCA decision, delivered on 7 March 1990, involving the proper construction of the Municipal Employees (Western Australia) Award 1982, and whether employees are entitled to be paid overtime rates for time spent after the conclusion of ordinary work hours travelling from site to depot.
74 In Shire of Albany, the parties agreed that employees cease work at the site at 4:30pm, following which they travel back to the work depot in a vehicle belonging to the Shire. French J was satisfied that the return to the work depot from site in the Shire’s vehicle is ‘an incident of the instruction requiring such travel to the site at the beginning of the day’, and in that sense, was undertaken pursuant to the original instruction; such that cl 27 ‘Fares and Travelling Time’ applied to the travel: Shire of Albany, 4, 13–14.
75 French J said in Shire of Albany, 15, 17:
But cl.27 taken as a whole assumes a distinction between time engaged in travelling in or in connection with work on the one hand and time worked on the other. It does not exclude the possibility that an employee’s travel may be his work. A driver engaged to deliver spare parts or personnel from depot to job site, would if covered by the Award, be working while travelling. Whether travel is also work outside the category of travel addressed by cl.27 must be a question of fact according to the circumstances of the case. On the agreed facts however the travelling in issue in this case was of the class contemplated by cl.27 and was not work for the purposes of the overtime provisions of the Award.
A number of decisions were cited in argument relating to the scope of work activities and the concept of ‘time worked’ for the purpose of calculating remuneration under industrial awards. …
While the general principles enunciated in that line of cases indicate criteria for the determination of ‘time worked’ where that expression is used in industrial awards, the decision in any particular case must depend upon the construction of the relevant award, whether it makes specific provision for the activity in question, and the facts of the case. None of these ‘oncall’ authorities, in my view weigh against the conclusion that cl.27 of the Municipal Employees (Western Australia) Award 1982 covers the travelling time which is the subject of these proceedings.
76 French J said in Shire of Albany, 19:
Subsequently in Police Association (SA) v Public Service Board (SA) (1983) 5 IR 105 [(SA Police)], Russell J in the Industrial Court of South Australia held that time spent by a police officer travelling from one place of duty to another at the direction of a superior officer was ‘time worked’ for the purpose of the Police Officers Award and attracted overtime rates where it extended beyond ordinary hours as defined in the award. No reference was made in the judgment to any equivalent of cl.27 and in my respectful opinion, his Honour was clearly correct in characterising the travel time which was an integral part of the performance of the officer’s duties as time worked for purposes of the award.
In this case cl.27 requires a distinction to be drawn between a class of travel that is travel between home and site and between site and site for the purpose of performing work at the site on the one hand, and travel which is also work on the other. For the reasons already expressed I am satisfied that the travel undertaken in this case fell into the first category.
77 Shire of Albany does not support Mr Smith’s argument because it affirms that whether travel time constitutes ‘time worked’ will depend upon the construction of the relevant industrial instrument, whether the instrument contains a provision for travel, and the facts of the case.
78 French J found that pursuant to the award and facts under consideration in Shire of Albany, that the travel time was not time worked, but time to which cl 27 ‘Fares and Travelling Time’ applied.
79 French J notes that in the decision of SA Police, the applicable award did not contain a provision for travel, and in that case the time spent by a police officer travelling from one place of duty to another at the direction of a superior officer, was time worked, because the travel time was an integral part of the performance of the officer’s duties: Shire of Albany, 19.
80 Mr Smith submits that the time he spends travelling from one job to another counts as time worked because it is an integral part of his rostered work. Transcript of Proceedings, 38.

81 However, when asked how the analogy could be drawn between Mr Smith’s travel time and the 15minute morning tea break, Mr Smith’s agent said: Transcript of Proceedings, 39.

McCORRY, MR: We’re not saying that the rest break is integral to the work. What we’re saying is that the meaning of perform work is not limited to physical exertion. Perform work means to do whatever you are required to do by the employer in accordance with the terms of the contract of employment and that includes not working when the employer directs.
82 Absent any submissions that the 15minute morning tea break was an integral part of the performance of Mr Smith’s duties, analogous to the travel time under consideration in SA Police as cited in Shire of Albany, I do not consider that Shire of Albany assists Mr Smith.
83 The decisions at [49] above, discussed at [51]–‍[82] above, involve scenarios where the time an employee spends oncall or on standby or travelling might count as time worked, because of the employer’s control or because what the employee is doing in that time is an integral part of the performance of the employee’s duties.
84 On the contrary, and as contended by the parties’ at [12(e)(iv)–‍(v)], [14]–[15] and [17(d)–‍(e)] above, all of which I accept, during the 15minute morning tea break, Mr Smith is relieved of all duties, performs no work, and faces no restrictions beyond the break’s start time and duration.
85 Accordingly, these decisions do not assist Mr Smith’s argument that the 15minute morning tea break should count as time worked.
Decisions relied upon by the City that a rest break is not ‘time worked’
86 As outlined at [17(e)] above, the City relies on Galvin and Metcash.
87 Galvin is a High Court of Australia decision, delivered on 27 April 1949, in which the issue for determination was whether the insertion of a new provision into an award allowing a tea break of 15minutes two hours after the usual starting time is an alteration of the standard hours of work in an industry, in circumstances where s 13 of the Commonwealth Conciliation and Arbitration Act 19041947 provides that, ‘[a] conciliation commissioner shall not be empowered to make an order or award altering: – (a) the standard hours of work in an industry…’.
88 The High Court said in Galvin, 447: (emphasis added)
During a non-working period, the employees are not subject to the control of the employer in relation to the work for doing which they are employed. An hour during which no work is to be done cannot be called an hour of work. So also a shorter period during which no work is to be done is not part of ‘hours of work.’ Thus a luncheon interval is not a period of work. If an award prescribed that working hours should be from 8 a.m. to 5 p.m. with one hour for lunch, there would be eight hours of work. If the award were altered so as to provide that the working hours should be from 8 a.m. to 5 p.m. with seventyfive minutes for lunch or with fortyfive minutes only for lunch, the hours of work would be altered. No distinction can be drawn between such a case and the alteration of an award by providing a new teabreak of fifteen minutes or by abolishing an existing teabreak of fifteen minutes. In either case the hours of work would be altered.
89 As outlined at [88] above, Galvin states that a non-working period is a period where the employee is not subject to the control of the employer in relation to the work they were employed to do. During a nonworking period, no work is done, and therefore that period of nonworking is not part of the employee’s ‘hours of work’. Accordingly, a luncheon interval is ‘not a period of work’ but a nonworking period.
90 Metcash is a decision of Deputy President Mansini of the Fair Work Commission (FWC) delivered on 29 June 2021, where the parties agreed that the question for the FWC to determine was whether the employees are entitled to be paid an afternoon shift allowance pursuant to cl 8 of the Metcash IGA Distribution Victoria Enterprise Agreement 2019 (Metcash Agreement), in circumstances where cl 8 defined ‘Afternoon Shift’ as meaning any shift finishing after 6:00pm and at or before 1:00am, except where employees on dayshift work in accordance with cl 6. Clause 6.1.2 provides that the ordinary hours of work for day workers are 38hours per week ‘to be worked’ between 6:00am and 7:30pm.
91 In Metcash, the employees’ shifts commenced at 9:45am and concluded at 7:45pm. During each shift, employees were entitled to a 30minute unpaid meal break and two paid rest breaks of 15 minutes’ duration. The second 15minute rest break was taken from 7:30pm to 7:45pm, with employees leaving (or commencing to leave) Metcash’s Laverton Distribution Centre at 7:30pm.
92 The two 15minute rest breaks were provided by cl 20 of the Metcash Agreement, which expressed them to be a ‘paid’ entitlement to a ‘break’, with the second 15minute paid break to occur ‘at the end of the ordinary hours of work for the day’, which the FWC found, in Metcash [23]:
[23] In my view, the words ‘at the end of’ designate the point in time at which the break is to be taken and neither this expression, nor anything in the express drafting of [cl 20 of the Metcash Agreement], provides that these breaks are to be regarded as work or time worked for the purposes of the shiftwork provisions or otherwise.
93 The FWC cited Galvin, and said in Metcash [24]–[25]: (footnote omitted)
[24] The general legal principle was enunciated by the High Court of Australia in [Galvin] as follows:
During a non-working period, the employees are not subject to the control of the employer in relation to the work for doing which they are employed. An hour during which no work is to be done cannot be called an hour of work. So also a shorter period during which no work is to be done is not part of ‘hours of work’. Thus a luncheon interval is not a period of work. […]
[25] The parties properly acknowledged that an enterprise agreement may be struck to reflect a different intention and so this principle only takes matters so far. …
94 The FWC said in Metcash [28]–‍[30]:
[28] I accept that, other than perhaps the exception of overtime (subject to the specific provisions of [cl 11 – Overtime), the Metcash Agreement] does not contemplate financial penalty for or indeed permit work to be required to be performed during the second paid 15 minute break and it does not logically follow that a time in which work is prohibited would be regarded as time worked or work.
[29] There is also some textual support for the proposition that payment is not necessarily indicative of the calculation of working time and in this respect Metcash’s contentions about clause 22 (Waiting Time) are persuasive.
[30] Finally, there was some conjecture in oral submissions about the purpose and use of the 5 minute down time from 1925 to 1930 but it was not disputed that Affected Employees are released from duty and either depart or commence departing the workplace from 1930 hours (other than where there is a separate request to work overtime, which is outside the scope of this dispute). This fact is crucial in the context of the words of [the Metcash Agreement]. No Affected Employee is required or directed to perform any ordinary hours of work after 1930 hours. No Affected Employee does perform work after 1930 (other than overtime). Whilst the shift might be scheduled to finish at 1945, when viewed in context, the time from 1930 to 1945 [cannot] be considered time worked or work as there is no performance of any work or even attendance in the workplace during this time.
95 The FWC concluded (Metcash [33]–‍[34]) that the second 15minute paid rest break is not time worked, such as to entitle employees to payment of the afternoon shift allowance pursuant to cl 8 of the Metcash Agreement.
96 As outlined at [87]–‍[89] above, Galvin states that a period during which an employee is not subject to the control of the employer, is a nonworking period. Accordingly, a luncheon interval or rest break constitutes a nonworking period.
97 As outlined at [90]‍–‍[95] above, ‍Metcash states that the second 15minute rest break, a period during which an employee is not required or directed to perform any work and does not perform work, does not qualify as time worked under the Metcash Agreement. This is the case even where the rest break is a paid entitlement.
98 Collectively, the decisions at [49] above, involve scenarios of employerimposed restrictions or integral duties, which are absent in Mr Smith’s case.
99 Instead, the 15minute morning tea break aligns with a nonworking period, or a period during which an employee is not required to and does not perform any work such that the period does not qualify as time worked: Galvin; Metcash.
Conclusion
100 For the preceding reasons, I am not persuaded that Mr Smith has discharged the onus on him to establish his claim that the daily 15minute morning tea break constitutes ‘work performed at the direction of the employer’ pursuant to the overtime clause of the 2010 Award, as incorporated into the 2019 Agreement by cl 3 of the 2019 Agreement.
101 As I am not persuaded that the 15minute morning tea break counts as time worked, I find that Mr Smith worked 74.25 hours per fortnight (see Replacement Agreed Statement [27] at [9] above), and not in excess of his ordinary hours of 76 hours per fortnight, such as to entitle him to overtime pay.
102 Therefore, I find that Mr Smith has not established his claim for overtime pay.
103 Accordingly, Mr Smith’s claim will be dismissed.





C. TSANG
INDUSTRIAL MAGISTRATE