This extract from a Fair Work Commission decision makes it clear that not every single act which is required to be performed by an employee to perform his or her job attracts an entitlement to a payment of remuneration.
“We do not accept the ANMF’s submission that the Commissioner’s conclusion, with which we agree for the reasons stated above, was ‘counterintuitive’. Not every incident of employment duty attracts an entitlement to payment under the applicable industrial instrument. Employment will often involve minor and incidental duties being required to be performed outside of working hours without payment, such as making or answering occasional telephone calls about work attendance and rostering matters or dressing in uniforms required to be worn by the employer. In the case of nursing staff, there is usually an explicit or implicit requirement to take the steps necessary to maintain professional registration outside of working hours, but this does not attract any separate entitlement to payment either under the Nurses Award 2020 or under the Agreement (as the Commissioner observed at [141]). Here, where undertaking a RAT takes a few minutes at best and may be undertaken at home at a time of the employee’s choosing, it does not appear to us to be surprising that the Agreement provides for no applicable entitlement to payment. [35] We emphasise that the conclusion we have reached pertains to the specific circumstances described in paragraph [28]. As the Commissioner found in Jeta Gardens, undertaking a RAT in accordance with the employer’s direction in different circumstances may lead to a different conclusion being reached. We also observe that it would be open for the parties to negotiate a specific payment for undertaking a RAT in a future enterprise agreement.”
Appeal by Australian Nursing and Midwifery Federation v Johnson Stenner Aged Care Pty Limited t/a New Auckland Place [2023] FWCFB 162 delivered 19 September 2023 per Hatcher J, Easton DP and Roberts DP