Dr Rebecca Millar is a forensic mental health nurse and lawyer and is in the nursing program in the school of Health and Biomedical Sciences at RMIT

Whilst nurses need to be ready to start work from their start time, recent case law has explored what ‘starting work’ means, discovering that many of the start work rules and processes put in place by employers are not always substantiated by law. Specific controversy surrounds the concept of pre-shift (or sometimes post shift) tasks and what should constitute paid work.

Although it would be great to be paid for work from the moment we jump into our cars or onto the tram, travel time isn’t generally considered a paid work task. However, this concept was scrutinised in the matter of Frank Sheehan v Theiss Pty Ltd.

Employees of Theiss were routinely required to catch a company bus from their specific location of work to the break huts that were 20 minutes away on unpaid time. There are many contexts where similar travel is required within a workplace setting in nursing, such as high secure nursing environments, which may have layers of entries for employees to navigate before reaching their specific work location.

Aside from travel as a pre-shift activity, tasks such as checking on stock and other administrative tasks have been considered work activities by the Fair Work Commission 2018 and the Federal Circuit Court in 2022, in SDA v Aldi Foods Pty Ltd [2022]. Employees were routinely required to undertake such tasks, with the company arguing that those tasks were always completed prior to starting work and so were not considered paid tasks. The premise of Aldi’s argument for pre-shift tasks was the need for employees to be ready to commence work at the start of their rostered shift, including the completion of activities in order to be ‘shift ready’. Representing employees, SDA argued that these tasks constituted work and therefore should be on paid time. Aldi’s counterargument was that they would often let their employees leave their shifts early once the tasks were completed, effectively saying that the time was made up at the end of the shift. The cross claim was dismissed on the basis that there was no evidence of employees leaving early and even they were leaving early, there was no legal basis for an offset argument. We have all worked in that workplace or for that in-charge nurse who won’t let you leave until the exact minute of your shift or will find other tasks to be completed, regardless of the time that you started work.

Similar pre-shift tasks have been identified in healthcare contexts, with nursing homes that required Covid tests prior to commencing a shift also having been embroiled in similar arguments. In two recent Australian cases, nurses argued that they start work at the point of attending the site for antigen testing prior to starting their shift. In deciding the case, the court held that pre-shift activities were set out in their workplace agreement, finding that onsite antigen testing should be considered part of their ‘’work’’ and therefore undertaken on paid work time (see Australian Nursing and Midwifery Federation v Johnson Stenner Aged Care Pty Limited T/A New Auckland Place (21 April 2023) and Australian Nursing and Midwifery Federation (145V) v Jeta Gardens (QLD) Pty Ltd T/A Jeta Gardens [2022] FWC 3039 (16 November 2022)).

So when is work ‘work’? Principles emerging from recent case law requires consideration of several points:

• Is the activity solely to the benefit of the employer and with no personal benefit to the employee?
• Are the tasks ‘work’?
• Was there a direction by the employer to attend prior to the shift starting to complete those tasks? (Even in the absence of a direction request, directions can be implied by way of the threat of disciplinary action if the tasks aren’t undertaken prior to the shift start time).
• Is the phrase, “that’s the way it has always been’’ used?

An employer’s failure to consider whether pre-work tasks are legal can result in costly applications for back payment and potentially, in limited circumstances, additional compensation claims. In the case of Aldi, this resulted in millions of dollars of backpay. Whilst getting dressed into scrubs or driving around to find a car park may not be considered work, tasks such as collecting keys, Covid testing or arriving at a site within a site, or even switching on lights and computers, may warrant further consideration.