100320537

WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATE’S COURT

PARTIES COLIN ROBERTS, MITCHELL IAN CHOPPING, DARRELL VINCENT HARRISON

CLAIMANTS

 -v-

 MIDLAND BRICK COMPANY PTY LTD

RESPONDENT

CORAM MAGISTRATE G CICCHINI IM

DATE THURSDAY, 4 DECEMBER 2003

CLAIM NO/S M 166 OF 2002, M 167 OF 2002, M 169 OF 2002

CITATION NO. 2003 WAIRC 10245

_______________________________________________________________________________ 

Representation

Claimant  Mr T Kucera (of Counsel) of The Construction, Forestry, Mining and Energy Union of Workers

Respondent Mr A Power (of Counsel) and with him Mr R Curry (of Counsel) instructed by Messrs Mallesons Stephen Jaques

_______________________________________________________________________________

Reasons for Decision

The Claims

1         On 10 May 2002 the Claimants filed their respective claims alleging breaches by the Respondent of the Brick Manufacturing Award 1979 (the Award).  Each of Mr Roberts and Mr Chopping allege that as a consequence of the breaches that they have been underpaid $21,079.63, whereas Mr Harrison alleges he has been underpaid $20,602.08.

2         On 9 August 2002 the Claimants filed their amended Particulars of Claim.  The amended Particulars detail the basis for the claims, which in essence are, in each instance, that the Respondent has breached clause 9(4) of the Award for each pay week commencing the fortnight ending 20 May 1996 to the fortnight ending 29 December 1997 inclusive.  In that regard the Claimants alleged there was an express or, in the alternative, an implied requirement that they be present for duty for the whole of the shift for every shift worked except for those shifts occurring on maintenance days.  In so far as the allegation is that there was an express requirement, the Claimants say that the Respondent’s agents Ron Caruso and Tim Tipping communicated the same.  In so far as the allegation relates to an implied requirement, the Claimants rely on the fact that their respective supervisors, team leaders and managers failed to advise them to take a break, unlike the situation in other sections of the Respondent’s operation.  Further it is alleged that by virtue of the way the Respondent conducted its manufacturing operations that there was an implied requirement that the Claimants not take a meal break.  The Claimants also allege that the machinery used in the manufacture of bricks, which they operated, could not be turned off and that the Claimants were required to remain at their machines without a meal break because there was not sufficient staff to facilitate the taking of meal breaks.

3         The Claimants allege that as a result of the way that the Respondent operated its brick manufacturing process that they did not have a meal break at all and as a consequence they are entitled to be paid penalty rates for the entirety of the balance of each shift worked exceeding five and a half hours.

Responses

4         The Respondent denies that it has breached clause 9(4) of the Award as alleged or at all.  In that regard it denies that the Claimants were during the relevant period expressly or impliedly required to be present on duty for the whole of their shift without a meal break.  The Respondent also contends that it was not required to advise the Claimants of the time that they should take a break.  Further, and in the alternative, the Respondent denies that it impliedly required the Claimants not to take a break by failing to advise them to take a break.

5         The Respondent says that it adopted a “flexible break system” due to its requirement to maintain a continuous operation of machinery in the area in which the Claimants worked.  The system facilitated the requirements of both the Respondent and its employees, including the Claimants.  Employees were granted the responsibility and flexibility of leaving their workstation unattended or to be relieved for the purpose of taking breaks, including meal breaks, whenever they wanted.  Those working at Brick Machine 4 could not take their lunch breaks together as only one or two workstations could remain unattended for any significant period.  The Respondent says that there were generally a sufficient number of employees to cover for the employees taking breaks.  In that regard the Respondent contends that the shift supervisor was also able to relieve the Claimants for the purpose of taking meal breaks.  The Respondent also points out that not only were facilities provided away from the workstations for the taking of meal breaks but that they were utilised by the Claimants.  It is contended that the Claimants took meal breaks during the relevant shifts and that the continuous operation of machinery did not impede the Claimants’ ability to take meal breaks.

6         The Respondent acknowledges that the Claimants’ situation with respect to the taking of meal breaks differed from other employees employed by it.  It says that in that regard different practices applied to different sections of the workplace.  They differed dependant upon either or both operational or other considerations.  By way of example, maintenance days represented an exception to the operational requirements for continuous operation of machinery and enabled the taking of meal breaks at a common time.

7         The Respondent denies that the Claimants were required for duty for the entirety of their shifts including their usual meal breaks.  It accordingly denies that the Claimants are entitled to penalty rates for working without a meal break for beyond five and a half hours from commencement of their respective shifts.

8         Finally the Respondent points out that some of the claims are entirely without merit as it is quite evident from the available records that the Claimants in such instances were absent from work either on account of being on annual leave or being on sick leave.

Award Provisions

9         The Claimants allege a breach of subclause (4) of clause 9 of the Award entitled “Overtime” which provides:

(4) When a worker is required for duty during his usual meal time and his meal time is thereby postponed for more than one hour he shall be paid at overtime rates until he is able to take his meal time.

10     The Claimant contends that clause 16 should also be relevantly considered in giving effect to clause 9(4).  Clause 16 states:

16. - MEAL INTERVAL

(1) Not less than thirty minutes nor more than one hour shall be allowed for a meal each day.

(2) No worker shall be compelled to work for more than five and a half hours without a break for a meal.

(3)   When a worker is required for duty during any meal time whereby his meal time is postponed for more than one hour he shall be paid at overtime rates until he gets his meal.

Description of the Workplace and Duties of the Claimants

The Brick Manufacturing Process

11     At all material times each Claimant performed work within the Respondent’s Brick Machine 4 situated within the section that comprises the Kilns 7 and 8 building.  The brick machine consists of four distinct but integrated sections used to produce green bricks for removal to the kilns for drying.  The four sections comprise the following:

1)     Brick Machine (sometimes referred to as the extruder machine).

2)     Claytex Machine.

3)     Setter Machine

4)     Transfer Cars

12     The Brick Machine 4 process for brick manufacture consists of using clay transported by conveyor belt from bins situated outside the building to the mixer which forms part of the brick machine situated within the building.  The clay is then mixed with liquid additives.  The resultant mix is then forced forward and falls down a vacuum tower into the extruder.  The raw material is then pushed out through a die box, which shapes the clay into a column.  The column then runs on rollers to the Claytex area where additives are applied in the case of a production run requiring the additives.  It suffices to say in that regard that certain “face bricks” require additives, whereas other bricks such as “commons” or “maxi bricks” do not.  The additives are located in bins and the nature and extent of the application of the additives in slurry form, if any, is dependant upon the type of brick being made.  Generally speaking the additives consist of varying types of substances including sawdust.  The column then moves forward from the Claytex area to the slug cutter which cuts the column to set lengths.  The lengths depend upon the brick size and type then in production.  The cut portion of the column is referred to as a slug.  The slug is usually about two to three metres long.  Each slug then continues on conveyor belts in groups of three.  They travel along a series of conveyors to the slat conveyor.  At that point the slugs are moved at right angles from the conveyor, pushed across by an arm to the wire frame.  The slugs are then pushed through the wire frame, which cuts them into brick sizes.  The wire frame is sometimes referred to as the cutter frame.  The bricks then move to the inverter, which inverts the bricks so that they sit face to face.  That is done in order to stop the additives being blown off in the drying process.  Not all bricks are inverted but most face bricks are.  After the inverting process the bricks are pushed onto the spreader table.  The spreader table is the place where bricks are spread apart to form a pattern for the setter head to pick up.  A hydraulically operated pick-up head then picks up the bricks.  The head operates by an injection of air being forced into the head, which causes the head to hold the bricks.  The bricks are then lifted and taken across to the transfer car (sometimes called the kiln car).  The air holding the bricks is then suddenly evacuated so that the bricks remain on the kiln car.  Each tier of the kiln car is loaded in a two-stage process.  The first head of bricks is loaded onto the kiln car at its farthest point from the setter machine control panel.  The second head is then loaded on the kiln car at its closest point to the setter machine control panel.  That process completes the partial loading of the kiln car.  The process then continues with the next kiln car.  Each full kiln car is actually loaded in a complementary two-stage process.  Initially only the bottom third of the kiln car is loaded.  The partially loaded kiln car then goes off on tracks to the pre-drier.  Once pre-dried, it returns to have a second tier of bricks loaded on it for eventual removal to the kilns.  Pre-drying only dries part of the car.  The reason for pre-drying is to stop the weight of extra layers of bricks compressing the bottom layer of bricks.  In that way the green bricks become hard and able to support the top layers of bricks.  The loading process operates in a continual alternate setting pattern by which an empty car is partially set followed by the setting and completion of a pre-dried car.  The process is one of loading an empty car followed by a partially set car followed by an empty car followed by a partially set car and so on.  The partially set car is taken for pre-drying.  The full set car is taken to be kiln dried.  Sometimes, prior to being taken to the kiln for drying, the fully loaded cars are held on holding lines on the transfer tracks.  Indeed there are two tracks dedicated for holding.  There are also a number of other tracks dedicated to various other functions including loading, storage, pre-drying, drying, and car repair.

Operators

13     At the material times there were four operators appointed to work within Brick Machine 4. Each operator was appointed to perform a dedicated function.  The operators were multi-skilled and able to operate each of the sections within that brick machine.  There was a requirement for each section of the brick machine to be manned with the only exception being that the extruder machine could in appropriate circumstances be remotely controlled from the control panel at the setter machine.

14     In addition to the four operators who worked as a team, the shift supervisor was also in attendance overseeing the operation and was well able to man any of the stations if required.  Additionally a fitter was also on duty to take care of any maintenance or breakdown problems that might occur during the shift.  The operators worked a twelve hour shift commencing at either 7.00 am or 7.00 pm depending upon the type of shift worked.  A typical roster would consist of starting on Monday and continuing on Tuesday worked as day shifts.  Wednesday and Thursday would be taken off with the Friday, Saturday and Sunday night shift being worked.  Monday and Tuesday would then be taken off and so on.

15     Colin Roberts and Mitchell Chopping worked together as part of one team whilst Darrell Harrison worked with another team.  The teams were encouraged to meet production targets and were paid bonuses for production above those targets within the requisite quality guidelines.  A production programme governed the nature of the operators’ duties.  There was a continual production process with operators from one shift handing over to the operators of the next shift with the hand over process taking in the order of five to ten minutes.  Any particular difficulties occurring during any shift might impact on the next shift.  Accordingly all difficulties were recorded in a production log particularly for the benefit of the next shift.

16     In order to gain an appreciation of the actual duties of the operators it is important to review the respective duties of those working on their respective sections.

Brick Machine (or Extruder) Operator

17     The brick machine operator controls its functions from the instrumentation panel situated in the immediate vicinity of the extruder.  He monitors the production program and is responsible for product changes.  Sometimes the production program is revised at the direction of the supervisor.  His duties include checking the vacuum tower through a glass-viewing panel to ensure that materials within the tower do not build up.  A build-up in the extruder tower might result if the augers, which have the function of pushing the clay forward, become worn.  Indeed even with new augers clay, sometimes builds up.  If a build-up occurs then a back-flow of clay is caused resulting in the process being interrupted.  Accordingly regular checking is imperative and is conducted every hour.  The operator also monitors a screen image of the box feeder, which is situated halfway between the extruder and the clay bins situated outside the building.  The aim is to ensure that the box feeder does not overflow and for that reason it also needs to be regularly monitored.  The monitoring of the box feeder can take an aggregate of up to two or three hours per day.

18     Other duties of the brick machine operator include the procurement of replacement dies, cores and cut face blades for those damaged or worn out in the manufacturing process.  The die is the instrument through which the clay column if forced.  The core punctures holes into the column so that the bricks are cored.  The cut face blade takes away the smooth surface from the column so as to produce a roughened texture to the face of the brick.  The worn cut face blades are replaced several times during a shift.  They are also replaced when there is a production change.  The replacement of the blades takes an average of about ten minutes to perform but can take as long as half an hour.  Another responsibility falling upon the operator is that of setting up a spare door.  There are two interchangeable hinged doors that cover the extruder pipe.  One is in use whilst the other remains prepared to be swung into position.  As the door is swung open the reset door takes its place.  The opened door is then reset.  Its configuration depends entirely upon the product being manufactured.  The resetting process entails the replacement of the faceplate, the setting of the die box and ensuring that the core is centralised.  The door resetting process might take up to forty minutes to complete and would occur two or three times a shift.

19     The operator is also responsible for controlling the moisture content of the column by controlling the mix and feed rate.  The moisture control is continuously monitored.  Sometimes the column needs to be hardened by reducing the moisture content.  That takes about five minutes.  The hardness of the column is gauged by the use of a penetrometer.  The operator may also need to polish the core and die in order to produce a shiny finish.  Polishing, which takes about twenty minutes, occurs two or three times each shift. 

20     Another function that the brick machine operator has is the resetting of the metal detector located in the conveyor coming from the bins.  The metal detector is designed to prevent loose bolts, nuts, bits of metal plating or other metal particles emanating from the bin from getting into the clay in the brick making process.  If metal is detected a siren goes off and the conveyor stops.  The metal needs to be found and recovered.  Thereafter the process is reset.  That occurs at least twice per shift.

21     The aforementioned constitutes an overview of the tasks carried out by the brick machine (extruder) operator.  It is to be appreciated that the aforementioned is not an exhaustive list of the duties of that operator.

Claytex Operator

22     The Claytex machine operator begins his shift by consulting with the operator from the previous shift.  The time taken in that regard is very much dependant upon whether additives are being used at the time.  Some bricks, being mainly the internal bricks such as Commons, Fast Wall, Maxi Brick and Longreach, do not require additives.  It is his duty to check on the production program to ascertain the type of brick to be produced during the shift.

23     When face bricks are in production the operator’s main function is one of monitoring the additives being applied to the column and making any necessary adjustments thereto.  That is an ongoing requirement that occurs quite regularly.  When not performing that function the operator is required to carry out other tasks such as procuring bulk bags for the mixing of materials.  He is also required to prepare drums of slurry or glaze to be sprayed onto the face bricks.  The mixing of such materials varies dependant upon the mix.  Slurries take in the order of about fifteen to twenty minutes to prepare and are used at the rate of two to three drums per hour.  Accordingly during any shift when additives are being applied an amount of twenty four to thirty drums of slurry would be used.  It is acknowledged however that additives are applied to less than fifty percent of the entire production.

24     Another of the operator’s duties is that of checking the sawdust hopper.  That occurs three times per shift and takes about ten minutes to perform.  The operator is also responsible for filling the sawdust hopper by use of a bobcat.  The feeding of the sawdust through screens by use of the bobcat is done about twelve times per shift and takes in each instance in the order of ten minutes to complete.  The screens need to be cleared of any bark or debris.  That occurs about eight to twelve times per shift and takes about ten minutes in each instance.  During any breaks the operator engages in general cleaning including the cleaning of sawdust screens.  If internal bricks are being made and there is no need for Claytex application then the operator attends to other duties such as cleaning up any mess outside caused by the use of a bobcat or loader and returning reclaimed clay to the clay shed.  As part of his general cleaning duties he also cleans up any mess around the slurry-mixing tank.  When the operator is not engaged in additives application he is required to clean up under the brick machine.  The length of time taken in performing that task is very much dependant upon the particular product under production.

25     This overview of the Claytex operator’s duties is by no means exhaustive and is simply designed to assist in the consideration of the types of duties performed.

Setter Operator

26     Each shift commences with a handing over from the previous shift’s operator.  That takes about five minutes.  Following that the setter operator is required to check the production program so as to acquaint himself with what will be required during the shift.  Part of the setter operator’s duties includes the monitoring of brick size.  He does that by taking sample bricks, measuring and weighing the same.  That is done about eight times per shift taking an average of about ten minutes to complete.  He is also required to monitor the quality control of the Claytex application and inform the Claytex operator of any difficulties in that regard.  Also included in his duties is the monitoring of the track conveyor that conveys the slugs to the setter machine.  That sometimes runs out of alignment causing a hold up in production.  In such circumstances the fitter is called to realign the conveyor.  However, if the fitter is busy or is otherwise not available, the setter machine operator carries out that function.

27     Another function of the setter operator is to write out tickets for the transfer cars.  The tickets are placed on the transfer cars as they travel along by the side of the setter machine.  The ticket details the brick type then in production, the batch number and the car number.  If there is any problem with the quality of the bricks, the nature of the problem is recorded on a separate coloured ticket and placed on the car.  The ticket follows the car through the process.

28     Another of the operator’s duties is to push in the top row of bricks on a fully set kiln car.  That is done in order to stabilize the bricks so as to avoid the bricks falling over in the kiln.  That is done in the case of all bricks except modular bricks, which are more intrinsically stable.  The process of pushing in bricks is carried out up to eighteen times per shift.  It takes about a couple of minutes on each occasion.  An output of about fifteen kiln cars per shift was more typical for the “Shift 1 Team” which included Mr Roberts and Mr Chopping.  The record production claimed for any shift was twenty-one cars.

29     The kiln cars over which the setter operator has control travel along the tracks pulled by “dogs”.  Sometimes the process fails in that a car does not come up.  Sometimes a car over-runs.  In each instance it is the setter machine operator’s responsibility to sort it out so that the cars can be appropriately set.  In extreme cases the bobcat needs to be utilised in order to push the car back to its correct position.  The setter operator is also required to maintain a written log detailing the time that the car started, the time it finished and any problems experienced with it, including details as to down time.  That process enables a complete production record to be kept.

30     Other responsibilities of the setter operator relate to the adjustment of the brick cutting process and include the adjustment of the markers on the pre-groove rubbers.  When the slug is cut and moves onto the slat conveyor it is pre-grooved before it goes through the wire frame.  Essentially the pre-groove rollers mark the slug as to where the wires should cut them.  Adjustment is necessary to ensure that the bricks are cut where marked; otherwise it results in the bricks being flawed.  The operator also has the responsibility for the clearing of “off-cut chutes” if they are blocked.  The chutes can block up to eight times a shift, but on average it occurs about four times per shift.  It usually takes two to three minutes to clear.  If the chute is badly jammed it can take up to five or six minutes to clear.

31     Another duty that the setter operator performs and which is peculiar to the manufacture of Florentine Specials is that he is required to turn the bricks over on the setter table.  Florentines were at the material times produced for two weeks, every two months, which included a run of Specials within that period.  Special bricks include bricks with a splayed face, which by virtue of their shape does not allow the inverter to pick them up.  They have to be manually turned over.  That process of manually turning the bricks takes about an hour.  Either the extruder operator or the Claytex operator usually assists the setter operator in turning over the bricks.

32     Again the aforementioned is not intended to provide an exhaustive list of the operator’s duties.

Transfer Cars Operator

33     The transfer cars operation, which facilitates the movement of bricks on kiln cars, requires a significant amount of human intervention.  It is the responsibility of the transfer cars operator to ensure that the transfer car moves along the designated track, for holding, pre-drying or removal to the kiln.  The operator has to ensure the efficient transportation of product on the cars.  Holding lines 1 and 2 did not, at the material times, have dog haulage facilities.  The cars had to be pushed further up the line or to the front of the line by the operator using a bobcat.

34     Apart from his own duties the transfer cars operator often assists the setter operator in pushing in the top row of bricks on the kiln cars.  Another of his responsibilities when doing the maxi brick run requires him to leave the transfer cars so that he can attend empty cars in order to line their bottoms with plastic so as to stop moisture being sucked up and thereby preventing losses in the bottom layer of bricks.

35     At times when the transfer cars are not moving, the operator helps out other operators in their jobs.

Operation Generally

36     It suffices to say that the operators are multi-skilled, and when able, do leave their particular station in order to help out other operators.  That of course is dependant upon circumstance, but generally speaking it is the Claytex operator and the transfer cars operator who have the greatest amount of disposable time available which enables them to help out their colleagues.

37     An appreciation of the production process and the duties of the operators are essential in the consideration of the issues in this matter.  With the benefit of such an appreciation I will now turn to address the testimony given in this matter.

Witnesses

38     Each Claimant, namely Colin Roberts, Mitchell Chopping and Darrell Harrison gave evidence.  They also called their former supervisor David Green, their work colleague Paul McGlinn and union representative Rod Reynolds to give evidence in support of their case.

39     The Respondent called Craig Yerbury who at the material time was Mr Roberts and Mr Chopping’s shift supervisor.  Also called on behalf of the Respondent was Olivier Girardin who at the material time was its Works Manager.  Mr Girardin is familiar with the duties of the operators and has had first hand experience in that regard.  He worked as a machine operator when he first started in 1981.  Other witnesses called by the Respondent included its Payroll Officer Mark Radford, its Shift Supervisor Steven Stribley, its Production Manager Graeme Marshall, its former Operations Manager Vincenzo Scarvaci, and Timothy Tipping who, at the material times, was the Respondent’s Production Manager.

Evidence

Colin Malcolm Roberts

40     The Respondent currently employs Mr Roberts as a production operator.  He first commenced work with Midland Brick in 1994.  He was initially engaged through a labour hire company.  After about seven or eight months Graeme Marshall offered him permanent employment with the Respondent to work at Brick Machine 4.  Prior to his moving to that area he had worked in another section of the Respondent’s production plant.  Whilst working within that other section he usually worked a ten-hour day punctuated by both a morning tea and lunch break.  Upon being appointed to his permanent position the paymaster informed him that he would be working a twelve-hour shift from 7.00 am to 7.00 pm on day shift and 7.00 pm to 7.00 am on night shift.  His immediate superiors were, at that time, Paul Moyle and Tim Tipping.

41     Mr Roberts testified that he was required to learn the necessary skills to enable him to operate each of the four areas within the section.  He started off on the transfer cars and then moved to the setter.  Thereafter he moved onto the brick machine followed by the Claytex machine.

42     Mr Roberts testified that there were about five different sorts of bricks manufactured in the Kilns 7 and 8 area.  They included internal bricks, slim bricks for export, modular face bricks and pavers.  He described the functions of each of the operators and the process involved in the manufacture of those bricks.  He testified that all four operators were required to run the manufacturing process.  He described the transfer cars operator’s job as the easiest and the setter’s job as the most difficult.  He said trainees would usually start working in the transfer cars operation and then move through the various operations.  Once fully trained the operators rotated between the four workstations.

43     Mr Roberts said that he continued to work at Brick Machine 4 until 1998 when he went to Whiteman’s in order to commission the new Kiln 10.   During the period May 1996 to December 1997, and whilst he worked at Brick Machine 4, Craig Yerbury and David Green supervised him.  Mr Roberts testified that his first job within that area was to operate the transfer cars.  He did that for seven shifts over a fortnight before moving on.  He said that he did not take breaks when he worked on the transfer cars.  Indeed nobody stopped for breaks.  Thereafter he trained as a setter operator.  He described the setter as being complex to learn.  Whilst working at the setter he never took a break because the machine needed to be monitored at all times.  Consequently he had to eat at the machine.  Mr Roberts testified that he initially queried the lack of a meal break with Mr Moyle, his then supervisor, early on in his employment.  However he did not address the issue again until about late 1995 when an Enterprise Bargaining Agreement (EBA) was then being considered.  Mr Roberts said that given that the draft EBA provided for a half hour meal break to be taken after five and a half hours he took the opportunity to raise the issue of meal breaks with Mr Tipping.  In that regard Mr Tipping is alleged to have told him:

“We pay you for 12 hours, you will work for 12 hours.”

    (Transcript page 18)

44     When Mr Roberts continued in his query Mr Tipping is alleged to have responded:

“We pay you for the meal break, you will work through the meal break.  If you don’t like it, you know where the gate is.”

    (Transcript page 18)

45     Thereafter Mr Roberts did not raise the issue again as he saw it as being a futile exercise.

46     Mr Roberts said that if he wanted to eat during the shift he would eat whilst close to the workstation.  There was an urn, fridge and microwave near the setter to facilitate meal preparations.  He said that even taking a toilet break was problematic, particularly when working on the brick machine.  It was difficult to leave the machine unattended.  Supervisors did not provide relief coverage.  In essence, Mr Roberts testified that the operators did not have breaks.  In that regard he denied that a “flexible break system” was in place.  He said that the only time that a lunch break was sometimes taken was on a maintenance day when the plant was shut down for regular routine maintenance.  On those days the fitters would work on the machinery and the operators were only expected to assist the fitters and to clean up.  Maintenance days occurred twice per week with each shift experiencing a maintenance day each fortnight.  Although there were no scheduled meal breaks on maintenance days, meal breaks could be slotted in.  Even then the operators were challenged about taking a meal break.

47     Mr Roberts acknowledged that operators were paid production bonuses for the manufacture of an amount in excess of a targeted number of bricks measured in car lots produced each shift.  In that regard he denied working through the lunch break in order to increase production so as to meet the criteria for bonus payments.  He said that the failure to take meal breaks had nothing to do with productivity issues.  He said that operators were expected to eat at their machines because management did not like turning the machines off.  Turning the machines off led to delay and loss of production.  The aim was to keep the machines running constantly each day of the year subject to routine maintenance shut downs.

48     When cross-examined Mr Roberts maintained that for each of the shifts worked during the relevant period he worked a twelve-hour shift without a break.  He agreed that the requirement to work during the lunch break was not reduced to writing.  Further he also agreed that a written complaint was never made about his inability and that of the other operators to take a lunch break.  He maintained that he was verbally instructed by Mr Tipping not to take a lunch break.  He said any denial of that by Mr Tipping would be a lie.  He was particularly questioned about his recollection as to how and when Mr Tipping made his statement.  In that regard he said that the statement was made after a meeting held in late 1995 to discuss an EBA.  Mr Tipping made the comment to Mr Roberts in the presence of Mitchell Chopping.  Mr Roberts said that he accepted the situation because he wanted to keep his job.  He denied the suggestion that he fabricated evidence on the issue.

49     Mr Roberts conceded under cross-examination that the process with respect to commencement and cessation of a shift was informal.  He agreed that there was no clocking on or off and, further, there was no formal recording of start and finish times.  He also conceded that the manufacturing process was such that, at times, the plant was able to run without the need for human intervention.  He maintained, however, that the machines had to be monitored at all times.  He said it was not correct to say that operators had spare time on their hands that could be utilised for helping colleagues.  They could only do that if they stopped monitoring their machines.  In any event the setter machine operator could not, at any stage, leave his position, as the setter machine required constant manning.  It was suggested to him that the operators could relieve each other in order to facilitate the taking of breaks however that was denied by Mr Roberts.  He reiterated, “We didn’t take breaks”.  He said the only form of break taken was a toilet break.  He further denied that there was plenty of opportunity to take breaks from the machines.  He said on occasions the supervisor might assist if an operator had to go to a medical appointment, for example, but not otherwise.  The supervisors did not assist to facilitate the taking of meal breaks.

50     Mr Roberts was challenged on his evidence and it was put to him that his time was not continuously dedicated to his job.  In that regard it was suggested to him that he had taken a television in to work so that he could watch the motorcycle racing.  Although agreeing that he took a television in to work with him so that he could watch the motorcycle racing, he said that the reality was that he did not and could not sit down and watch the races.  He only caught a glimpse of the races.

51     Mr Roberts testified that he always had his meal at the machines and that he never was able to eat his meal in the lunchroom.  He did, however, concede that it was possible to leave the work premises in order to obtain meals.  That was most often done on night shifts.  Meals were sometimes obtained from Alfred’s Kitchen in Guildford.  He also agreed that barbecues were sometimes held on Sunday shifts.  In that regard he said that the food was cooked up by employees on other shifts and then taken to the operators at their workstations, who proceeded to eat their meals at their stations.  He denied eating away from the workstation.

52     Another line of cross-examination related to the issue of the need to have a full complement of four operators to run Brick Machine 4.  In that regard Mr Roberts conceded that a shift might well from time to time be short of operators on account of annual leave, sick leave or absences on workers compensation.  He agreed that on occasions three rather than four operators manned the machines.  That, he agreed, could go on for several days or even longer.  He agreed that when internal bricks were being produced, three operators could easily maintain production.  He said however that that could not be achieved when “Florentine Limestone” bricks were in production.

53     Mr Roberts was also questioned about maintenance days.  In that regard he conceded that the plant would typically shut down for five to six hours whilst maintenance was carried out.  He agreed that each operator would assist the fitter, clean up and/or assist others.  After the clean up had finished a meal break would be taken.  In those circumstances an hour-long lunch break would be taken.

54     Finally it was put to Mr Roberts that the alleged conversation with Mr Moyle which occurred in March or April of 1995 when he was told that he had to man the machine at all times and eat at the machine did not occur.  His response was that it did.

55     In re-examination Mr Roberts reaffirmed that he and the operators were unable to take breaks:

“… Because we had to continuously monitor the process.  There was some instances when things weren't going very well that you never even got to eat your lunch at your machine, and sometimes you took it home after your 12 hour break, unopened, you never had a chance to eat it.  The pressure was always on for tonnage, that was the catch cry of the place.  Tonnage, tonnage, tonnage”.

    (Transcript page 121)

David Grant Green

56     The Respondent formerly employed Mr Green for a period of about eighteen and a half years commencing in 1984.  In about 1987 or 1988 he started working at Brick Machine 4 after having worked in various other areas of the Respondent’s operation.  Whilst at Brick Machine 4 he performed the duties of a brick machine operator, setter operator, Claytex operator and transfer cars operator.  He remained within that section for about five years before moving to the kilns area.  He then went backwards and forwards between the kilns and Brick Machine 4, often in a relieving capacity.  In 1996 he started supervising in a relief capacity.  He continued in that role for a little over two years.  In 1998, as a result of restructuring, he became a “packaging supervisor” covering all areas of Midland Brick and Whiteman’s Kiln 10 area.  For a period of about six months he had the dual roles of packaging and production supervisor.  He, at various times, supervised each of the Claimants and indeed was a relief shift supervisor during part of the material period.

57     Mr Green testified that Colin Roberts, Mitchell Chopping and Paul McGlinn and one other worked as the Shift 1 team.  Mr Harrison was a member of the Shift 2 team.  He described the functions of each operator.  Thereafter he was taken to address the issue of whether any breaks were taken by the operators working under his supervision.  In that regard he was asked:

“Did you direct employees on when to take breaks? --- No.

And why not? --- Because just we work 12 hours and we did 12 hours.  There’s --- no one ever had a break.”

    (Transcript page 235)

58     He said that by the term “break”, he meant break away from the machine.  He went on to say that no one took breaks:

“… Because to keep the machine running; it was just the way life was; you keep that machine running, no ifs no buts no maybes.”

    (Transcript page 236)

59     Mr Green testified that any delay, which caused the kiln to shut down, would result in a “mega dollar” problem.  Accordingly the emphasis was one of ensuring a continuous process that never resulted in kiln shut down.  As a consequence no one ever had a smoko break.  Mr Tipping, who was his immediate superior, was simply concerned at keeping the machines going.  There was never any discussion about breaks.  They did not have breaks because that was “just the way life was” (Transcript page 236).  He said although in theory a flexible break system was in operation, the available manpower did not permit its operation.

60     He further testified also that although it was preferable to have four operators running Brick Machine 4, it was possible for it to be done with only three operators.  In those circumstances the operators would “run around like chooks with their heads cut off to cover up the extra gap” (Transcript page 237).

61     Mr Green acknowledged in his evidence in chief that production incentives were in place and received by operators, however, he denied that they worked through their breaks in order to achieve those production bonuses.  He said, in that regard, that there were no breaks to work through.  The only conceivable breaks taken were toilet breaks. When he was supervising he had occasion to cover for operators if they needed to go to the toilet, but that was about it. 

62     With respect to the issue of taking breaks on maintenance days, Mr Green testified that only occasionally could that be done.  Generally the operators were required to clean up and take part in consultative meetings in the smoko hut during which various issues were discussed including matters appertaining to safety.

63     When cross-examined, Mr Green conceded that during the material period he was competing with Mr Yerbury for the position of Shift 1 supervisor.  Each had a six-month stint in that position and was attempting to impress Mr Tipping that he was the right man for the job.  As it turned out Mr Yerbury was successful.  Mr Green agreed that the result was a source of great disappointment for him as he saw himself as the better man for the job.  Apart from that disappointment he also suffered further disappointment in May of 2001 when he was demoted two levels from the position of “production packaging supervisor” to machine operator.  That was done for disciplinary reasons.  Consequently Mr Green took legal action against the Respondent, which was eventually settled by the parties.

64     Mr Green was next cross-examined about his knowledge of the “flexible break system”.  In that regard he reaffirmed its existence but said he could not recall speaking to anyone else about it.  He only assumed that others had knowledge of it.

65     Mr Green was next taken to consider the role of each operator.  More particularly he made comment concerning the amount of time that each operator needed to man his station.  He dealt firstly with the extruder operator.  He said that the extruder machine had to be kept under observation for the whole of the twelve-hour shift.  In that regard, he refuted the contention put to him that he was lying.  Secondly with respect to the Claytex operation, he proffered the view that that was the busiest job in the process and that similarly it was necessary for the operator to man the machine for the full twelve hours.  Thirdly he pointed out that the setter operator also needed to keep his machine under constant observation, as was the case also with the transfer cars operator.  Consequently no one had breaks.  Only very short interludes were taken in order to go to the toilet and make coffee but that was about it.  He also reaffirmed that there was not even the opportunity to take breaks on maintenance days.  Notwithstanding that, he conceded that there were times when the machines operated without human intervention and they could, and did, operate without them being monitored.  Mr Green denied that the reason why he did not direct the operators to take a meal break was because that there was no need, particularly given that they had plenty of time within which to take breaks.

66     Mr Green was questioned whether any reduction in the number of operators from four to three had an impact on production.  In that regard he said that it inevitably did.  He denied its impact was dependant upon the type of bricks then in production. 

67     Finally Mr Green refuted the proposition that he has tailored his evidence against the interests of the Respondent because he has an “axe to grind”.

Paul Anthony McGlinn

68     Mr McGlinn is thirty-one years of age and is currently employed by the Respondent as a machine operator.  He commenced in that role in 1994.  Prior to that he worked as a de-hacker for a year and previous to that as a brick packer.  Whilst working as a packer he was able to take meal breaks.

69     Mr McGlinn testified that when he was undergoing his induction for the de-hacker job at Kilns 7 and 8 he enquired about his lunch break.  He said that his then supervisor, Mr Jim Heaton, informed him:

“We don’t get a smoko room break down here.  If there’s cars on the line, we don’t stop”.

    (Transcript page 132)

70     He also queried the situation with his leading hand, David Moon, who confirmed that the workers in that section did not receive meal breaks.

71     After a year of working as a de-hacker he moved on to be a machine operator.  He was initially trained as a transfer cars operator and thereafter as a setter operator.  Mr Yerbury trained him.  When Mr McGlinn asked him about “smoko”, Mr Yerbury is alleged to have responded:

“We don’t shut down for smoko here”.

    (Transcript page 133)

72     Mr McGlinn subsequently went on to be trained in the operation of the Claytex machine and brick machine.

73     Mr McGlinn testified that he never took a break when operating the various machines forming Brick Machine 4.  He said it was virtually impossible to take a break given all of the duties he had to perform.  All of the operations required constant monitoring.  He contended that it was a fallacy to suggest that there were sufficient operators to enable breaks to be taken.  If breaks were taken there would be an inevitable reduction in production, which was not acceptable to management who constantly hounded them about keeping up production.  He said that it was not until 2002 that he was informed that he was to have a smoko break even if it resulted in reduced production.

74     He went on to describe in some detail, the various duties of each operator.  It was his evidence that the minimum manning requirement for the operation of Brick Machine 4 is four.  If someone were off sick or away for some other reason, an attempt would be made to find a replacement operator however if that could not be achieved, the process would still continue but that would inevitably result in a slowdown in production. 

75     Mr McGlinn testified however that he was able to take meal breaks on days that routine maintenance took place.  It was his evidence that when Mr Yerbury was supervising he made sure that meal breaks were taken on maintenance days.

76     When cross-examined Mr McGlinn conceded that Mr Moon’s position could have been not that he could not take a meal break but rather that the meal breaks varied and could not be taken at set times.

77     Further Mr McGlinn conceded under cross-examination that it was not always the case that working with one less operator would necessarily affect production.  He said that production was very much dependant upon the skill level of the operators and the type of brick then in production.  He agreed that in many instances the process and output could continue normally even if the complement of operators were one short.  However later in cross-examination he clarified his position on the issue by saying that although production in such circumstances could be maintained it could not be done with safety.

78     Mr McGlinn denied being relieved by Mr Yerbury so that he could take breaks.  He did, however, concede that other operators relieved him so that he could go to the toilet.

79     Mr McGlinn was questioned about the need to constantly remain at Brick Machine 4.  In that regard he conceded that there were occasions when one of the crew would leave the site and obtain meals and bring them back.  He said that in those instances meals would be picked up from Alfred’s Kitchen or other places.  He agreed that he was one of the persons who would on occasions leave the site to do that.  He said that in order to do that he would stock up the machine with sufficient materials in order to allow him to go.  That would usually see him through.  He was unaware if his colleagues attended to his machine or not during his absence.  He also agreed that the machines could be left to run on their own thereby giving opportunities for operators to leave the machines to do something else.  He also agreed it was not accurate to say that the workstations required constant monitoring by their respective operators.  Indeed he agreed that in certain circumstances an operator could be away from his station for between forty and sixty minutes.  There were also periods when there was nothing to do at the machines.  Although conceding that he had time to take a break he said that he never took a meal break.  Mr McGlinn also conceded that it was possible to take a break outside the Kilns 7 and 8 building and indeed completely off site provided that he informed his supervisor of his whereabouts.

80     Mr McGlinn denied that he attended barbecues during the Sunday shift saying that the cooked food was taken to his workstation.

81     It was put to Mr McGlinn that Mr Roberts brought in a television set so that he could watch the motorcycle races.  In that regard he could recall the television set being brought in but could not recall what Mr Roberts watched.  He agreed that on occasions he read a novel, listened to the radio and engaged in chat with his colleagues.

82     Finally Mr McGlinn confirmed that he has a similar claim to that of the Claimants on foot in this jurisdiction.

Mitchell Ian Chopping

83     Mr Chopping is aged forty years and is currently employed by the Respondent as an acting team leader.  He commenced working with the Respondent on 27 April 1989.  He started as stick machine operator and thereafter in about February 1994 moved to Brick Machine 4.  He continues to work in that area.  When he first went to Brick Machine 4 he used to work an eight-hour shift but later that changed to a twelve-hour shift.

84     Mr Chopping said that Brick Machine 4 operates twenty-four hours per day every day of the year.  He described the function of each station and the duties of each operator.  He said that as a consequence of the requirements placed on operators there was no opportunity for breaks to be taken.  When he first started working in the de-hacker area within Kilns 7 and 8, which was prior to his move to Brick Machine 4, he was informed that no one got breaks.  Consequently he did not take breaks.  That entrenched view that no one took breaks followed him to the adjoining Brick Machine 4.  Mr Yerbury, who trained Mr Chopping, did not take breaks and accordingly Mr Chopping proceeded on the basis that breaks were not taken.  Indeed Mr Chopping’s view was so firmly held that when he instructed others in the job he advised them that meal breaks were not to be taken because they were not allowed.

85     Mr Chopping was next taken to describe what occurred on maintenance days.  It suffices to say in that regard that although he agreed that a lunch break could be taken on those days, he nevertheless said the operator’s ability to take a break was always subject to his routine duties having priority.  Often he would have to leave his lunch break so that he could attend to his duties.

86     Mr Chopping was next taken to testify about an incident involving Mr Tipping in about April or May 1996 when Mr Chopping had cause to complain to him about the unrelenting nature of the job.  The unrelenting pressure of work resulted from a staff shortage, which was consequential to the unexpected accidental off-site death of a work colleague.  He said that Mr Tipping told him in that regard:

“It's a 12-hour day.  You get paid for 12 hours.  Just do your job.”

    (Transcript page 184)

87     Mr Chopping testified that he complained on several occasions about his inability to take breaks.  He said that if he wanted to eat he would simply eat his meal at the machines.  If he wanted to go to the toilet he might leave his machine temporarily but if working on the setter machine and he was busy and there was no one else to help him out he would just go around the corner and “have a leak”.  Mr Chopping said that he has never heard of a flexible break system.

88     Mr Chopping testified that it was not until June 2002 that Mr Marshall instructed him that he should take a meal break.

89     When cross-examined Mr Chopping was complimentary in his description of his supervisor, Mr Yerbury.  He said that Mr Yerbury was a meticulous person who was not so much concerned with the quantity of output but rather the quality of it.  He was also concerned with safety issues and stuck up for the guys on the shift even if that made him unpopular with management.  Having said that he implied that Mr Yerbury would nevertheless tailor his evidence in order to achieve an outcome which best suited his own position with the Respondent.

90     Mr Chopping made it clear under cross-examination that it was not the case that operators had considerable free time.  He reaffirmed that each operator’s job entailed constant monitoring and involvement.  He reaffirmed also that meal breaks were not taken and that he had never taken a break except to go to the toilet.  He was never relieved on the machines except for the purpose of taking toilet breaks.  Notwithstanding that he agreed that there were times when the operators went off site to buy food.  All that was required in that regard was that the supervisor be advised at the time of leaving and return.  It was also conceded by him that there were times when Brick Machine 4 was only manned by three operators rather than four.

91     Mr Chopping was also asked whether Mr Roberts ever brought a television set into work.  He said that he had.

92     With respect to the barbecues, which were held on the Sunday shifts Mr Chopping said that Fred, the fitter, would cook the meat, which would then be taken back to the operators.  It was his evidence that no operator other than the transfer cars operator had the opportunity to stand near the barbeque whilst the meat was cooked.  Even the transfer cars operator’s opportunity was limited.  He denied that he himself would stand around watching the meat being cooked.

93     Mr Chopping was cross-examined about the meeting between Mr Moyle and himself during which the issue of taking breaks was discussed.  In that regard Mr Chopping readily conceded that he could not recall the date of the meeting.  He agreed that he did not take any notes.  He also agreed that he cannot now recall the exact words used.  Further he agreed with Counsel that Mr Moyle and Mr Tipping may well have been pointing out that the operators did not get fixed breaks at fixed times except where the machines stop for routine maintenance.

94     The cross-examination of Mr Chopping revealed him to be quite argumentative.

Darrell Vincent Harrison

95     The Respondent currently employs Mr Harrison who is forty-two years of age.  He works on the Respondent’s Brick Machine 4 as machine operator.  He secured permanent employment with the Respondent in 1995 after having worked for the Respondent as a contractor engaged by Skilled Engineering.

96     Mr Harrison testified that he is competent in operating each of the four machines, which comprise Brick Machine 4.  He currently works as a team member of Shift 4.  He is a past member of the Shift 2 team.  The move from one team to the other has been non-consequential in that his work has always remained the same.  It has simply meant that he has worked with different personnel.

97     Mr Harrison testified that no one had a break from his station.  Meals were always eaten at the workstation.  Sometimes even the act of eating of a meal would be interrupted by the requirement to immediately attend to duties.  It was his evidence that each of the machines needed to be constantly monitored.  They could never remain unattended.

98     He testified that it was not until June 2002 that he heard Graham Marshall, his production manager, tell Mr Chopping:

“As of now you must have a half an hour meal break”.

    (Transcript page 258)

99     When cross-examined Mr Harrison agreed that the Brick Machine 4 operation could run with a crew of three rather than four.  He said that the diminution of available crewmembers might result in lower production but that was not always the case.  The determinative factor was the type of brick in production.

100  Mr Harrison conceded that during the material period operators would relieve each other for the purpose of going to the toilet and other reasons.  He agreed that on one occasion he left his workstation to go to the front gate to collect a pizza.

101  He said that no one on his shift ever left the premises in order to go and collect food off-site without first obtaining the supervisor’s approval.  However operators did go off-site for that purpose with the supervisor’s approval.

102  Mr Harrison admitted that when things were running well there was ample time for him to leave his workstation to make a cup of tea or coffee or have a chat.  He maintained, however, that he never took meal breaks except on maintenance days.

Rodney Patrick Eric Reynolds

103  Mr Reynolds is a wage claims officer employed by the Construction, Forestry, Mining and Energy Union of Workers and was responsible for the preparation of the underpayment schedules with respect to each Claimant’s claim.  He testified as to his methodology in calculating the claims by reference to clause 9(2) of the Award.

104  Mr Reynolds conceded in his evidence in chief that he failed, in his calculations, to make allowance for the fact that the Claimants had meals on maintenance days.  He said that he was not aware at the time of making his calculations that meal breaks were taken on maintenance days.

105  When cross-examined Mr Reynolds admitted that his calculations contain certain errors such as claims for payment of penalty rates for periods when the Claimants were away for various reasons including holidays.

Craig James Yerbury

106  Mr Yerbury is and was at all material times an employee of the Respondent.  He has been an employee of the Respondent for a total period of about eleven and a half years.  He commenced his employment with the Respondent as a Claytex operator within the Brick Machine 4 operation and worked in the capacity of an operator for about eighteen months prior to leaving the Respondent’s employment to work for another employer.  He worked for the other employer for about four years before returning to the Respondent on 12 March 1993.  At that time he regained the position of machine operator at Brick Machine 4.  He subsequently worked in each of Brick Machine 4’s sections namely, extruder, Claytex and setter machines as well as the transfer cars.  He was eventually promoted to the position of relief shift supervisor in 1995.  At that time he became responsible for Brick Machine 4, which also encompassed Kilns 7 and 8 including the de-hacker 1 and 2 areas.  Mr Yerbury explained that the de-hackers role is to unload the fired bricks at the packaging end and make them into packs of relevant size products.  In 1997 he was offered the position of full time shift supervisor. Mr Yerbury remained a shift supervisor until February of 1999 at which time a restructure took place with the result being that there were four brick machine supervisors appointed to supervise the site including all brick machine and packaging areas.  There is no need to discuss Mr Yerbury’s evidence concerning his new role.

107  Mr Yerbury testified that whilst working as a supervisor he necessarily was always in contact with and around operators.  He consulted with them as to who operated the various machines and from time to time when required also relieved them.  He said that schedulers predetermined the operators’ daily tasks.  They worked in accordance with a schedule which was prepared having regard to a number of considerations including stock levels, demand, forecast trends and the like.  He said that the highest demand was for an internal utility brick called the “Maxi brick”.  He also testified that in order to maintain continuity it was essential that the plant ran smoothly thereby enabling compliance with the scheduling program.  In that regard records were kept of both production levels and down time so that the schedulers could accurately monitor production.

108  During the relevant period between May 1996 and 30 April 1997 Mr Yerbury was the supervisor of the Shift 1 team.  For part of that period he shared that role with David Green.  He supervised the crew for about twelve months of that period with Mr Green supervising the rest.  He said that during the relevant period the mainstays of the Shift 1 team were Colin Roberts, Mitchell Chopping and Paul McGlinn.  Others came and went as the fourth party of the team.  They were only part of the entire shift crew for Kilns 7 and 8.  The total compliment was eleven comprising the four operators on Brick Machine 4, a tunnel kiln operator, a kiln car decker, four de-hacker operators and a forklift operator.

109  Within the Brick Machine 4 operation the operators rotated from station to station except when training was taking place, in which case the operator would remain at a particular station until fully trained.  Mr Yerbury went on to describe the function of each section and the operator controlling it.  He said that the extruder machine did not need to be continuously manned.  Indeed it could be left unmanned for periods ranging between half an hour and one and a half hours.  Although the machine needed to be monitored, it did not require constant monitoring.  Monitoring was essential only when new augers or lining were in place or, alternatively, when they had become worn.  It was possible to monitor the extruder operation from the setter panel, which had remote control capabilities.  Further the brick machine operator would often keep an eye on the Claytex area whilst the Claytex operator was doing other things.  Similarly the Claytex operator was not required to be constantly monitoring his machine.  Once the process had begun and was functioning properly he could leave his area to assist in cleaning up under the brick machine, assisting the kiln car decker or the transfer cars operator.  He could also relieve the extruder operator if needed.  The Claytex operator was in the best position to assist others because quite often additives were not required in the particular manufacturing process, thereby significantly reducing the Claytex operator’s involvement.  He also described the other operators’ functions.  His comprehensive review of each operator’s functions need not be recited.  It suffices to say that his evidence suggests that operators were not constantly required at their workstations and that they were in a position to be relieved for the purpose of taking a break.  He testified that he was in a position to relieve and did, in fact, relieve machine operators.  In that regard he said that the operators took breaks when they wanted.  The arrangement for the taking of breaks was informal.  Breaks were permitted at any time and there was no restriction on the taking of breaks.

110  Whilst Mr Yerbury supervised the Shift 1 team he saw Mr Roberts and Mr Chopping taking breaks.  He recalled seeing each of them in the smoko room.  He recalls eating with Mr Chopping.  He recalls seeing Mr Roberts heating up his meal in the smoko room.  Mr Yerbury also confirmed that on occasions operators left the site to go and pick up food.  It was usually Mr McGlinn who did that.  He estimated that Mr McGlinn would leave the site at least four times a month.  Alternatively the shift fitter, Fred Elsasser, would be sent.  Sometimes two or three operators would sit around the setter machine and have their meals together to keep the setter operator company.  They did not work whilst having their meals.

111  With respect to the Sunday barbecues Mr Yerbury agreed that more often than not it would be Fred Elsasser who would cook.  However on occasions Mitchell Chopping or Paul McGlinn would do the cooking.  Mr Roberts was never seen cooking.  Often the operators, with the exception of the setter operator, would just stand around the barbecue watching the meat being cooked and thereafter eat the same.  He said that they would gather around the barbecue about fifty per cent of the time.  Mr Yerbury testified that the operators would usually remain around the barbecue for about half an hour.  The setter operator would always be looked after and relieved so that he could have a meal.  Someone would usually take a meal back up to the setter operator and on occasions they would have their meals together.  The operators would return to their workstations at their own leisure having regard to their own particular situation.

112  Mr Yerbury said that he never received any complaints about operators being unable to take a meal break, but conceded that on rare occasions, because of the production circumstances, the operators would not have been able to take a break.  That occurred when there was a break down or when troubleshooting was required.  On maintenance days operators were permitted to take an extended break.  On occasions they took breaks of between forty-five minutes to an hour.  Mr Yerbury said that on occasions he found Mr McGlinn to be asleep in the lunchroom when it was time to restart after the maintenance break.  After lunch, toolbox meetings would be held in order to discuss issues of concern.  There was never any mention at those meetings that there was a concern about the operators’ inability to take breaks.  Mr Yerbury testified that he was not aware of any communication, whether verbal or written, which in effect required that operators not take meal breaks.  He said that meal breaks could be taken.  Indeed Brick Machine 4 could operate with a crew of three or even two.  In fact there were occasions when all four stations were run single-handedly for periods of up to two hours.

113  Mr Yerbury was asked whether he recalled saying to Mr McGlinn; “We don’t shut down for smoko here” to which he replied,” No.” (Transcript page 442)  He conceded, however, that he might have said that to him in another context when he may have said,

“Because the machines aren’t shut down for smoko.  We take a flexible break system.”

    (Transcript page 443)

114  Mr Yerbury, in reference to documentary evidence, confirmed that the operation often continued with a complement of crew of less than four.  Operators would not be replaced when one would go on annual leave or otherwise was away for other reasons.

115  Mr Yerbury described his relationship with Mr Roberts and Mr Chopping as good.  On the occasions that he had the duty of supervising Mr Harrison he experienced no problems at all.

116  When cross-examined Mr Yerbury reaffirmed that it was possible for Brick Machine 4 to run with one operator for a period of up to two and a half hours.  He also agreed under cross-examination that the “flexible break system” was not at all publicised by the Respondent.  He also accepted that the “flexible break system” was not known as such.

117  Mr Yerbury reaffirmed under cross-examination that he saw each of Mr Roberts and Mr Chopping taking meal breaks.  He could not, however, recall the length of their breaks or whether their entire break was taken within the smoko room.  He also agreed that he saw operators eating at their workstations.  Mr Yerbury said that the evidence of Mr Green, Mr Roberts, Mr Chopping and Mr McGlinn that they were not able to take meal breaks is simply not true.  Indeed he said that he took breaks with them.

118  The cross-examination of Mr Yerbury resulted in the reaffirmation of the evidence that he gave in chief.  He was not shaken at all in the process.

Olivier Francois Girardin

119  Mr Girardin is currently based in Brisbane and is employed by Boral Ltd being the Respondent’s parent company.  He worked for the Respondent between 1981 and 2001.  His first job with the Respondent was that of a setter operator within Brick Machine 4.  In 1986 Mr Girardin was promoted to the position of Plant Manager, which made him responsible for all production areas within the Respondent’s operation.  Much of his work in that regard entailed walking around the plant, meeting and talking with the workers and supervisors.  All of his direct subordinates from the various kiln areas reported to him.  They included Tim Tipping who was the manager of the Kilns 7 and 8 complex. Mr Girardin in turn reported directly to the Operations Manager, Vincent Scarvaci.

120  Mr Girardin explained that the twelve-hour shift was introduced in early 1990.  He said that it proved to be very popular because it had a number of advantages for both the workers and the Respondent.  Mr Girardin testified that operators were during their shifts able to leave their workstations for the purpose of taking breaks, including meal breaks.  He said that the flexible meal break system was always in operation and had been in operation at the time that he started working for the Respondent in 1981.  It continued to operate so as to enable operators to take breaks when convenient having regard to the continuous production process.  The process required the machines to operate continuously except for when they were turned off during routine maintenance periods.

121  Mr Girardin testified that if an operator wanted a break and there was a need for his machine to be attended that he would call upon one of his colleagues, the fitter or the supervisor to cover for him.  He could otherwise leave the machine unattended.  He could do that when he wanted and did not need the shift supervisor’s permission to do so.  He said that it was not the case that the machinery had to be continuously manned.  In fact the significant changes made to the machinery in 1996/1997 made the whole process less labour intensive.  He said the more experienced the operator, the greater the likelihood that the operator was on top of his job, allowing for the process to continue without interruption and enabling a greater amount of time that could be utilised for other purposes, including meal breaks.  That was the situation across each of the four operations within Brick Machine 4.  Mr Girardin also told the Court that the process could be managed by a complement of three operators, and even two for short periods.  In one or two instances he ran the plant single-handedly for periods of up to half an hour.  He conceded, however, that that situation was not typical.

122  Mr Girardin said that he was not aware, until relatively recently, of complaints by operators concerning their inability to take meal breaks.  He said that there had been ample opportunity to complain.  There were regular occupational health and safety meetings during which such issues could have been brought up but it was never raised.  He said he received no complaints from Mr Roberts about meal breaks notwithstanding that he had received complaints from him about other issues.  Similarly Mr Chopping also did not complain about not being able to take meal breaks.  That was so notwithstanding that they had a particularly good relationship and it would have been quite easy for Mr Chopping to speak to him about the matter.  The same was the case with Mr Harrison.

123  Mr Girardin said that he did not see any instruction issued by anyone else nor did he issue any instruction or policy that forbade the taking of meal breaks.  He was not aware of any express direction given by Mr Tipping or others that the operators should work through their meal breaks.

124  Mr Girardin said that given that the Respondent paid for the meal breaks he would not have expected that the meal break in each instance would be any longer than thirty minutes.  However there was no strict policing of the length of meal breaks taken.  He agreed that the process was informal and there was no method of recording the start and finish times of meal breaks taken.

125  When re-examined Mr Girardin reaffirmed that the Respondent was not so much concerned with how and when the operators took meal breaks but rather to ensure that the whole process continued without disruption.

Mark Stephen Radford

126  The Respondent employs Mr Radford as its “payroll specialist”.  The payroll records relating to Mr Roberts, Mr Chopping and Mr Harrison were introduced into evidence through Mr Radford.

127  Mr Radford’s evidence disclosed that each Claimant had, during the material period, as part of their pay, received payment of overtime, which comprised a component of their pay for working a twelve-hour shift.  Indeed they were paid a total of 1.14 hours at double time.  It became evident therefore, given Mr Radford’s evidence, that the Claimants are claiming penalty rates for periods for which they have already received penalty rates.  Other discrepancies highlighted by Mr Radford’s evidence include the fact that part of the claims are for penalty rates for periods when the Claimants were on annual leave, sick leave or workers compensation.

128  I do not otherwise propose to recite Mr Radford’s evidence.  The cross-examination of Mr Radford was uneventful.

Steven Jay Stribley

129  The Respondent employs Mr Stribley as a shift supervisor.  He has held that position since 1997.  He has been an employee of the Respondent since 1987.  Mr Stribley initially started working in the Respondent’s yard as a labourer and then moved on to brick making.  He worked as a de-hacker for four to five years within the Kilns 7 and 8 complex prior to moving to work as a machine operator on Brick Machine 4.  In 1996/1997 he became a shift supervisor.

130  During the material period Mr Stribley supervised Shift 4.  He said that his shift was the most productive of all the shifts.  He said that Shifts 1 and 3 were the least productive.  He testified that the way in which operators carry out their work has changed little from the material times to the present.  Each of Mr Roberts, Mr Chopping and Mr Harrison, together with Andrew Potter, have all come under his supervision as part of the Shift 4 team.  That of course has occurred subsequent to the material period.

131  Mr Stribley testified that all the Shift 4 operators took breaks.  He said in that regard that they took breaks; “For coffees, for meal breaks, for anything. (Transcript page 607)

132  He said by “anything” he meant; “Going down the shop … (t)o get smokes, to get some lunch.” (Transcript page 608)

133  Mr Stribley went on describe each operator’s ability to take a break in light of his duties.  In that regard he said that if an extruder operator wanted a meal break either the transfer cars operator or the Claytex operator could quite easily relieve him.  Indeed there were occasions when he did not need a relief.  He said that the extruder machine did not need to be manned for the whole twelve hours because once the machine had been set up it could be left unattended for an hour to an hour and a half.  He said that operators would leave the extruder unattended to have a meal break.  Whilst the extruder operator was absent the setter operator and/or the Claytex operator would keep an eye on his machine.

134  Similarly the Claytex operator was not required to monitor the Claytex machine for the entire twelve hours.  That was the case even when the most difficult bricks to produce were being manufactured.  He said that the Claytex operator’s work could be structured so as to facilitate the taking of a meal break.  In such circumstances, if the operator wanted a meal break he would simply tell the extruder operator that he would be going to have a meal break.  He said the only time that the Claytex operator could not leave his machine unattended was when “Restoration Reds” or “Florentine Limestone Bricks” were being produced in which case a relief was usually organised.

135  Mr Stribley testified that the setter machine needed to be manned for the full twelve hours of the shift.  The setter operator would however be relieved by another team member so that he could take his meal break.  Who relieved him was very much dependant upon the type of brick then in production and of course the particular circumstances then prevailing.  Similarly the transfer cars operator would also be relieved so that he could have his meal.

136  Mr Stribley testified that there was slack built into the operation to facilitate the taking of meal breaks, annual leave, sick leave and other absences.  He said that the transfer cars operator had so much time on his hands that he would often sit and talk with the setter operator or alternatively play cards or yahtzee with him.  He said that such activities did not interfere with the operator’s ability to man the setter.  In such circumstances the setter operator was still able to control the process and oversee the operation.  The machine continued to run and at those times no human intervention was required.

137  Mr Stribley testified that meal breaks were usually taken for half an hour except in the case of maintenance days when they would be of an hour’s duration.  He said that it was entirely up to the individual operator to decide when to take a meal break.  There were no hard and fast rules as to how, where and when the meal breaks were taken. The flexible break arrangement did not have a particular label.  Employees were told:

“You can have it when you want it”.

    (Transcript page 619)

138  Mr Stribley also testified that during induction new employees were informed about the flexible meal breaks.  They would be told:

“…there's no set times there;  you can have it whenever you feel hungry, to have your lunch.”

    (Transcript page 616)

139  Mr Stribley further testified that he worked alongside David Green as a shift supervisor.  He said Mr Green took breaks when working as a shift supervisor.  He said that he recalled Mr Green going off-site to the shop to get his lunch.  On those occasions he would eat his meal down at the park across the road from the Respondent’s plant.  He recalled a particular incident when Mr Green went to the park to have his lunch and had accidentally reversed his “Ute” into a tree.

140  Mr Stribley testified that the full complement of operators were only necessary at critical times during production such as times when “specials” that could not be inverted needed to be turned over and also at times when there was a product change.

141  He also went on to testify that he never heard any complaints about an inability to take lunch breaks.  He said that operators had ample opportunity to raise complaints of that nature during safety meetings.  He said Mr Roberts, Mr Harrison and Mr Chopping never made complaints to him about not being able to take lunch breaks during the period that he supervised them.

142  Finally, Mr Stribley informed the Court that he could not recall the argument alleged to have occurred on 8 June 2002 to which Mr Chopping referred in his evidence.

143  When cross-examined Mr Stribley agreed that his evidence was almost entirely based on his experience with the Shift 4 team.  He agreed that he was unable to comment about what happened on other shifts during the material period.  He said that at the material times he was answerable to Tim Tipping who oversaw the area.  However Mr Tipping did not usually work on weekends or at night and would only be available on weekends or public holidays if he was rostered as the duty manager.  That occurred about once every second month.  Accordingly Mr Tipping’s ability to monitor what was happening on the shifts was somewhat limited.

144  Mr Stribley confirmed under cross-examination that he did not instruct the operators as to when to take their breaks.  He said that the decision as to when to take their breaks was made by the operators entirely at their own discretion.  It was pointed out to Mr Stribley that on occasions operators did work through breaks.  He agreed and surmised that that was because they otherwise had plenty of breaks during their shifts.

145  Mr Stribley also reaffirmed that the setter machine could not be left unattended for more then ten to fifteen minutes at the most.  He said that any suggestion that the setter machine could not be left unattended at all was simply not true.

146  Mr Stribley was also asked about whether the operators ever had their meals together in the smoko room.  He said in that regard that when the machines were not running due to break down or maintenance three or four operators would join together.  Whilst the machines were running two operators, sometimes three would have their meals together in the smoko room.  He reaffirmed that in some circumstances one operator could be left alone to run the whole process but for no more than a couple of hours at a time.  He conceded however that that did not happen very often.  He also agreed that the best safe practice would usually require two operators to be working at the same time.

147  Mr Stribley reaffirmed under cross-examination that the operators on Shift 4 had breaks whenever they wanted and that they all knew that was the case.  He said that the operators on his shift had quite a few breaks during each shift.  Those breaks were usually for a half an hour or more.

Graeme Walter Marshall

148  Mr Marshall is the Respondent’s Production Manager.  The Respondent has in various capacities employed him since 1985.  He is currently responsible for overseeing all green brick manufacturing including scheduling, planning, making and firing of the product.  At the material times he was Production Manager of Kilns 1 to 6.  In that capacity he had the responsibility to prepare and crush clay for all brick machines on site including Brick Machine 4.

149  He testified that Mr Harrison formerly worked in the areas for which he had responsibility but transferred to Kilns 7 and 8 on 28 April 1997.

150  Mr Marshall testified that he had knowledge of the “flexible meal break system” which enabled the “guys (to) … sort out amongst themselves when and how they would take their meal breaks” (Transcript page 657).

151  Mr Marshall next went to describe the manufacturing process employed on Brick Machines 1 and 2. He also addressed issues concerning breaks taken by operators who worked at those machines.  That evidence does not particularly assist in my consideration of the matter and accordingly I will not review it.  It suffices to say in that regard that Mr Marshall’s experience in other areas of the Respondent’s plant is of little relevance in this matter.

152  Mr Marshall was next taken to give evidence about the meeting that occurred on 27 June 2002 in which he told all present that they should take meal breaks.  He said that that was said in the context of his being aware of these and other claims against the Respondent.  He raised the issue because he never wanted it to be said that he expected people to work through a meal break.  He said in that regard:

“ … And I just wanted it documented, and these people told that if they could not organise a flexible meal break, with the permission of their supervisor they had my permission to shut the machine down.”

    (Transcript page 669)

153  He said that when he first heard about these and similar claims he went into a state of “disbelief”.  Asked why, he said:

“It never entered my mind that anybody working a 12 hour shift, for whatever reason, would not have a meal break.”

    (Transcript page 670)

154  Prior to the claims being made he had never heard anyone complain about not having their meal breaks.

155  When cross-examined Mr Marshall confirmed that he had no knowledge of what happened at Brick Machine 4 during the relevant period.  As to his edict in June 2002 he said he wanted the operators to understand that he did not expect them to run the machines without meal breaks.

Vincenzo Scarvaci

156  Mr Scarvaci is currently employed by BGC Australia as General Manager of Block Pave and Clay Brick Operations.  His employer is a competitor of the Respondent.  The Respondent formerly employed Mr Scarvaci for a period of about twenty-three years from November 1978 until 19 August 2002.  He started off in the laboratory as a chemist and eventually was promoted to the position of Operations Manager.  He was the Operations Manager during the material period.  He was responsible for all aspects of production including budgets, expenditure, safety and industrial relations.  Mr Girardin, Mr Tipping, Mr Marshall and other managers all reported to him.  Apart from the production managers, engineering and purchasing managers also reported to him.  In essence he had ultimate responsibility.

157  Mr Scarvaci said that he was initially opposed to the introduction of the twelve-hour roster because he was concerned that it may be too demanding upon the employees.  However following a trial of the roster he agreed to its implementation upon being assured that it did not place any unnecessary strain upon the Respondent’s employees.  He said that the introduction of the twelve-hour shift brought no tangible benefits for the company but brought certain advantages for employees.

158  Mr Scarvaci testified that breaks taken during the twelve-hour shifts were paid breaks.  Employees were paid for the entire period that they were at work.  He said that it was left to the employees to sort it out amongst themselves as to when breaks were taken.  He would have expected at least three major breaks to be taken during a twelve-hour shift with the first comprising ten minutes, the second twenty minutes, and the third fifteen minutes.

159  Mr Scarvaci testified that during the material period the setter machine in Brick Machine 4 was the least reliable piece of equipment in that part of the plant.  The Kilns 7 and 8 plant was critically important to the production output required.  Accordingly there was an emphasis upon that machine running smoothly.  The emphasis was on that machine running continually and all unnecessary stoppages being avoided.  He said that at the material times the issue of when operators took their meal breaks was of no concern, as it was never raised as an issue.  He testified that the whole operation ran informally.  Operators were not required to clock on or off at the start and finish of their shifts and further were not required to clock off when they stopped for any reason.

160  Mr Scarvaci told the Court that the need for kilns to run continuously was imperative as it could take up to two weeks for the kiln to get back up to an optimum level.  Each time the kilns stopped the bricks in the kilns would be put at risk as would several hours of production, which followed.

161  Mr Scarvaci informed the Court that Brick Machine 4’s complement comprised four shifts of four operators each with a supervisor.  Each team would be required to cover for absences on leave, long service leave and other absences.

162  He next addressed the functions of each operator.  He said that the extruder operator, once having started the process, could leave the machine.  In that regard he said that there were remote facilities available on the setter machine, which enabled the setter operator to intervene if necessary.  The essential tasks of the extruder operator would only take about an hour or an hour and a half of the twelve-hour shift.  Similarly the Claytex operator could leave his machine after having filled the hoppers.  He just needed to check the process from time to time.  Only some ten to thirty per cent of the operator’s time needed to be spent on the Claytex machine.  Indeed only thirty to forty per cent of the bricks produced needed additives in any event.  However the setter operator’s involvement was critical.  He was expected to be at his machine to check on the product and react if there was any problem with the additives or with the clay column.  So far as the transfer cars operator was concerned, only ten to fifteen per cent of his time would involve the operation of machinery.  Accordingly in view of the time available to them there was an expectation on the part of the Respondent that all operators would assist other operators when necessary.  There was in all the circumstances sufficient time available to enable a colleague to be released for the purpose of taking a meal break.  He said that he witnessed that relief process in operation.  He said that he often saw operators going off and having their meal (Transcript page 702).  He also said that during the material period he saw that operators had sufficient spare time available so as to enable them to read newspapers and/or books.

163  Mr Scarvaci said there were regular consultative committee meetings held when general issues of concern could be raised in discussion.  At no stage during those meetings or at any other times prior to the institution of these proceedings was the alleged inability to take meal breaks ever raised.  He said if the operators could not take their meal breaks he would have expected them to be knocking on his door in regards to what would have been in his view an intolerable work situation.  However that did not happen.

164  When cross-examination Mr Scarvaci conceded that it would not have been permissible to leave the setter machine for any extended period.  Indeed he said that leaving the machine unattended for periods of about half an hour would have been in contravention of operational and safety guidelines.  He agreed that it was expected that setter operators be at or around their machine at all times.

165  Furthermore he told the Court under cross-examination that Brick Machine 4 operated at about eighty per cent efficiency.  He said that the machine was broken down for about twenty per cent of the time.  At those times operators were not required to man their machines.

166  Mr Scarvaci was next asked about how often he saw operators take a meal break.  In that regard he said he saw it happen quite often.

167  Mr Scarvaci also told the Court that he was confident that all supervisors were aware that operators were entitled to a paid meal break.  He said that,

“(he) was there often enough to see evidence that they (the operators) were taking breaks; and no one complained so (he) concluded that they were (taking breaks).”

    (Transcript page 718).

168  He said that there was ample opportunity to take a break.  If the operators chose not to take a break then they chose not to take a break, however, they were never precluded from taking a break.  The fact that they sometimes ate near the setter machine was not a problem.  He had witnessed operators having meals, sometimes in the smoko room and at other times near the machines.  He conceded however that he took no particular note of or interest in the particular circumstance of the meal break.  The matter was simply never an issue for him (Transcript page 724).

169  When cross-examined Mr Scarvaci reaffirmed his earlier evidence that it was feasible for only one operator to safely run the entire production process at Brick Machine 4 provided however that it was only for a short period of time.

170  Finally he said that the operators could have had an uninterrupted thirty-minute meal break on each shift if they chose to do so.

Timothy Peter Tipping

171  Mr Tipping is currently employed by the Respondent as its Packaging Manager.  He commenced working for the Respondent in 1978 or 1979 as a brick packer.  In 1996 he was appointed Production Manager for Kilns 7 and 8.  He was Production Manager between 1996 and 1999.  Prior to that time he worked as a machine operator within Brick Machine 4.  He carried out all the different tasks in each of the different sections therein.  He has also held a number of other positions between 1999 and 2001 until such time as he was appointed to his current position.  His responsibilities in the past have included ensuring that his supervisors were carrying out their tasks correctly.  He said he used to walk around the plant each day to monitor what was happening.

172  Mr Tipping was asked to testify, based on his experience, concerning the role of each operator, and in particular the amount of time that each operator needed to be at his machine.  In that regard he said that the extruder operator would, on average, be required to be at his machine for about thirty per cent of the time.  He would otherwise be relieving other operators, cleaning up his area and other areas, and assisting others with their duties.  So far as the Claytex operator is concerned, he said that additives were only applied to about forty per cent of total production. As a consequence the Claytex operator was only required at his station for about fifty per cent of the time.

173  Mr Tipping went on to testify that operators could take a break whenever they wanted.  There was no need to obtain permission in order to take a meal break.  Furthermore, more than one break per shift could be taken.  He said that he was never concerned with how many breaks were taken.  Meal breaks were never in issue.  He said that in his twenty-five years with the Respondent he has never seen or heard of a directive, which required the operators to work through their shift without taking a break for meals or refreshments.  He said further that whilst engaged in his managerial position he has never told anyone not to take a meal break.  He said that he could not recall telling Mr Harrison, Mr Roberts or Mr Chopping in December 1995 or January 1996 that they were to work through their whole shift without taking a break for meals or refreshments.

174  He said that he never received any complaints about operators not being able to take meal breaks.  He said he encouraged dialogue with employees and would have expected to hear about a problem if there was one.  Further there were consultative meetings during which matters of concern to employees were raised.  The issue of an inability to take a meal break was never raised at those meetings.

175  When cross-examined Mr Tipping reaffirmed that the operators could effectively choose when they took their meal break.  He agreed that they were not directed to take their meal breaks.  Further he accepted that operators sometimes ate at their machines. Further he confirmed under cross-examination that there was no method of recording when meal breaks were taken or for how long they were taken.

176  Mr Tipping said that he could not recall ever telling Mr Roberts in 1995 with respect to the issue of meal breaks:

“We pay you for 12 hours, you will work for 12 hours.”

177  Further he denied ever saying to Mr Roberts:

“We pay you for the meal break, you will work through the meal break.”

178  He also denied saying:

“If you don’t like it, you know where the gate is.”

179  In re-examination Mr Tipping said that he could not recall, in his time with the Respondent, ever telling an employee:

“Look, there’s the gate.”

Evaluation of the Evidence

180  The evidence given in this matter on all contentious issues sits in two camps, diametrically opposed.  There is critical dispute in respect of a myriad of different factual matters.  Those disputes on such critical issues can only be resolved upon my proper assessment of the credibility and reliability of witnesses.  However the evidence given by Mr Reynolds and that given by Mr Radford is not subject to my assessment of credit.  In each instance the question is simply one of whether their evidence can be said to be reliable.  In all other instances both credit and reliability are necessarily considered.

181  The basis for the Claimants’ claims, albeit with slightly differing emphasis in each instance, is that they, during each twelve-hour shift, excepting maintenance days, worked without taking or being permitted to take a meal break.

182  Each of the Claimants and the witnesses called by them, with the exception of Mr Reynolds, testified concerning matters that occurred between 6 May 1996 and 29 December 1997, being the relevant period.  The same is to be said about the witnesses called by the Respondent, with the exception of Mr Radford.  It is axiomatic therefore given that the events occurred a long time ago that an assessment must be made about the witnesses’ ability to recall events that occurred about six years ago or more.  Accordingly in those circumstances the issue is one of reliability rather than credibility.

183  In assessing the evidence as it is before me it is quite apparent that much of the evidence given by the Claimants and the witnesses called by them suffer from internal inconsistency on critical issues such as whether the Claimants had time to take a meal break.  In most instances the strong position put forward in chief in that example that breaks were never taken was resiled from when subjected to cross-examination.  That can be said of each of the Claimants, Mr Green and Mr McGlinn.  I intend to cite a few examples reflecting such internal inconsistency.  It will be unnecessary to detail an exhaustive list of internally inconsistent evidence.  All references to the transcript hereunder used in highlighting such inconsistencies are made with respect to the Court’s copy of the same, which I understand differs in numbering from the copies in the hands of the Respondent’s representatives.

Internal Inconsistencies

Mr Roberts

184  Mr Roberts gave internally inconsistent evidence about manning levels.  In chief he said there was a minimum requirement of four operators (Transcript pages 11 and 21) but when cross-examined (Transcript page 108) he conceded that in certain circumstances production could be maintained with a manning level of three.  He also gave inconsistent evidence concerning assisting other operators.  In chief he testified that operators would not, as a general rule, assist other operators except when the setter was down (Transcript page 42).  However when cross-examined he agreed with respect to a number of different examples put him that other operators helped out as part of a team (see specific examples - Transcript pages 91 to 98).  There were also examples of inconsistency within cross-examination such as the one that relates to the production levels.  Initially Mr Roberts said that the Shift 1 team produced eighteen cars per shift, but then resiled to concede that usually fifteen cars per shift were produced (Transcript pages 81 and 82).

Mr Chopping

185  Mr Chopping gave inconsistent evidence within his evidence in chief concerning being relieved on the setter so that he could take a toilet break on the one hand and not being able to be relieved resulting in him urinating on the shed on the other hand (Transcript page 185).  There was inconsistency in his evidence on issues relating to the requirement to assist the fitter (Transcript page 214).

Mr Harrison

186  The internal inconsistency in Mr Harrison’s evidence is exemplified by his testimony that no one had a break on the one hand when compared to his admissions on the other that the operators left the work site to collect food (Transcript pages 256 and 274).  Another example is his evidence concerning operators not collecting food from the front gate as opposed to his admission that he left his station to collect a pizza from the front gate (Transcript page 272).

Mr Green

187  Mr Green gave inconsistent evidence concerning the change over of operators.  At Transcript page 250 he said that the outgoing operator sometimes left before the oncoming operator arrived, thereby leaving the machine unattended however on page 251 of the transcript he said , “you waited till your relief got there”.

Mr McGlinn

188  Mr McGlinn’s evidence was the most striking for its internal inconsistency.  By way of example, he testified that he was unable to take a break except to go to the toilet but then conceded leaving the work site to go and collect food (Transcript pages 152 to 154).  That is the most striking example of a number of inconsistencies within his evidence.

External Inconsistencies

189  A review of the evidence reveals a number of inconsistencies between the evidence given by the Claimants in each instance and the witnesses called by them.  The following examples illustrate the inconsistencies and are not meant to represent an exhaustive list of inconsistencies.

Mr Robert’s Evidence Compared to Other Witnesses Called by the Claimants

190  Mr Roberts testified that the process needed to be monitored at all times whereas Mr Green testified that the machines operated without being monitored (Transcript pages 118, 119 and 250).  He also testified that he was able to sometimes manage to squeeze in a break on maintenance days (Transcript page 20) compared with the evidence of Mr McGlinn who said that maintenance days were easy (Transcript page 133), Mr Chopping who said as a rule operators had breaks on maintenance days (Transcript page 183) and Mr Harrison who said there was plenty of opportunity to take a break on maintenance days (Transcript page 284).

Mr Chopping’s Evidence Compared to Other Witnesses Called by the Claimants

191  Mr Chopping’s evidence concerning the fitter requiring the operator’s assistance is inconsistent with what Mr Harrison had to say on the issue, being that the operator was not always required to assist the fitter (Transcript pages 206 and 285).

Mr Green’s and Mr Harrison’s Evidence Compared to Other Witnesses Called by the Claimants

192  Mr Green’s evidence concerning there being no opportunity or limited opportunity to have breaks on maintenance days (Transcript page 238) sits in contrast with Mr McGlinn’s, Mr Chopping’s and Mr Harrison’s evidence on the issue (Transcript pages 133,183 and 284).  It is axiomatic that Mr Harrison’s evidence in that regard is also inconsistent with Mr Green’s.

193  Mr Green’s evidence that the Claytex operator had the busiest job (Transcript page 246) is inconsistent with evidence given by Mr Roberts, Mr McGlinn and Mr Chopping.

Mr McGlinn’s Evidence Compared to Other Witnesses Called by the Claimants

194  Mr McGlinn testified that Mr Yerbury was prepared to allow unsafe practices (Transcript page 152) whereas Mr Chopping testified that Mr Yerbury was focused on “occupational health and safety” (Transcript page 196).

195  Having reviewed specific instances of inconsistency in the evidence of the Claimants and their witnesses I move on to consider whether their evidence can be considered reliable.  In my view the evidence of Mr Roberts, Mr Chopping, Mr Harrison, Mr Green and Mr McGlinn on critical issues is to be considered unreliable.  In each instance they tended to remember specific details of matters, including conversations, which assisted their claims yet could not recall other matters not critical to their claims.  I find it difficult to accept that any of them who professed to recall conversations in specific terms are accurate in their recollections.  Quite frankly it appears to be all too convenient.

196  Apart from their own evidence, the Claimants rely on the evidence of Mr McGlinn, Mr Green and Mr Reynolds.  It is noted that Mr McGlinn has his own claim on foot relating to the very same issue in dispute.  Mr Green on the other hand parted with the Respondent on less than amicable terms.  Given the history of the issues between him and the Respondent there can be little doubt that his evidence is imbued by bitterness.  So far as Mr Reynolds is concerned it is obvious that his evidence lacks reliability.  I say that because there are certain self evident errors that were made in the preparation of the schedules of claim.  They include, the failure to account for maintenance days with respect to which it is conceded meal breaks were taken, the incorrect assumption that the Claimants did not receive overtime rates when in fact each Claimant received 1.14 hours of overtime for each twelve-hour shift and the fact that the claims relate to periods when the Claimants were off work for various reasons.  Quite frankly the Claimants’ case concerning their calculated entitlements is nothing short of a mess.

197  The witnesses called by the Respondent gave generally credible evidence.  It is noted that each of Mr Yerbury, Mr Girardin, Mr Stribley, Mr Marshall, Mr Scarvaci and Mr Tipping gave evidence based upon their own experiences as operators and managers.  Having said that it is to be noted that Mr Stribley did not, at the material times, work with the Shift 1 team.  His evidence therefore is entirely based on his experiences with his own shift.  Mr Marshall’s evidence is of a similar nature.  To some extent Mr Scarvaci’s evidence on the role of operators during the relevant period was also very much generalised and non-specific to Shift 1.  Further it is noted that there are some internal inconsistencies in the evidence given by Mr Scarvaci concerning the number and length of the meal breaks.  He gave evidence in chief that his expectation was that operators would have three breaks during the shift being of ten minutes, twenty minutes and fifteen minutes duration (Transcript page 691).  Under cross-examination however he said that breaks taken were far in excess of thirty minutes.  Further his evidence concerning his expectation that three structured breaks would be taken sits at odds with the evidence of Mr Tipping on the issue.

198  Mr Yerbury, Mr Girardin and Mr Stribley were particularly impressive witnesses.  Their evidence was, in my view, credible.  Mr Tipping came across as somewhat defensive in approach but having said that, I have no particular reason to disbelieve him or otherwise reject his evidence.  Mr Chopping made comment about Mr Yerbury’s credibility but by the same token was suggestive of the fact that Mr Yerbury would tailor his evidence to suit his own ambitions.  I found it difficult to reconcile those two positions because they appear, to me, to be in conflict.

199  Having reviewed the evidence and assessed the witnesses I now move to determine whether the claims have been proved.

Onus and Standard of Proof

200  The Claimants in each instance bear the onus of proving their respective claims on the balance of probabilities.  It is trite to say that the Respondent has no obligation upon it other than to meet the evidentiary burden placed on it by virtue of matters raised in evidence by the Claimants and their witnesses.

The Law

201  The claims in each instance are brought pursuant to clause 9(4) of the Award relating to “Overtime” which provides:

“When a worker is required for duty during his usual meal time and his meal time is thereby postponed for more than one hour he shall be paid at overtime rates until he is able to take his meal time.”

202  The Claimant argues that the provision must be read with clause 16 of the Award, which provides:

16. - MEAL INTERVAL

(1) Not less than thirty minutes nor more than one hour shall be allowed for a meal each day.

(2) No worker shall be compelled to work for more than five and a half hours without a break for a meal.

(3) When a worker is required for duty during any meal time whereby his meal time is postponed for more than one hour he shall be paid at overtime rates until he gets his meal.

203  The Respondent argues against the two provisions being read together saying that although similar clauses 9(4) and 16(3) are different in that the expression “his usual meal time” is used in clause 9(4) whereas “any meal time” is used in clause 16(3).  It is argued in that regard that the provisions have been deliberately drafted that way because they are intended to serve a different purpose and to perform a different function.  Accordingly clause 16 should not be used as an aid to the construction of clause 9(4).

204  The Respondent’s counsel argues at paragraphs 13 and 14 of his written submissions dated 28 July 2003 that:

13. An employee's usual meal time (which includes both day and night 12 hour shifts), may not be within 5½ hours of the commencement of such a shift.  For example, an employee commencing a 12 hour shift at 7.00 pm may have had his evening meal before commencing work and may not choose to have his next meal until the early hours of the morning.  If that was his usual meal time and it was not postponed for more than 1 hour, there would be no requirement to pay overtime rates under sub-clause 9(4) of the Award.  Arguably, in those circumstances, there might be a breach of sub-clause 16(2), entitling a payment under sub-clause 16(3).  As previously indicated, the claimants have decided not to and have not made any claim alleging a breach of sub-clause 16(2) of the Award.

14. Moreover, if sub-clause 9(4) of the Award was intended to be read subject to any overriding requirements under clause 16 of the Award:

(a)   there would be no need for sub-clause 9(4), because the concept of an employee's usual meal time would come within the meaning of the expression any meal time in sub-clause 16(3) ; and

(b)   it would have been very straightforward for any draftsman, even one without legal training, to have made such an intention clear by expressing sub-clause 9(4) as being subject to clause 16 .

The very existence of sub-clause 16(3) and the absence of any attempt to make any connection between sub-clause 9(4) and subclause 16(3) is a clear indication that the latter should not be used as an aid to construing the meaning and effect of the former.

205  That argument has a degree of attraction.  Indeed it seems almost incomprehensible as to why both provisions would otherwise be included within the Award.  On the face of it, clause 9(4) would seemingly be superfluous if one were to accept the Claimants’ construction of the provision.  However I do not think it is superfluous because I take the view that clause 16 is intended for a different purpose.  Clause 16(1) provides:

“Not less than thirty minutes nor more than one hour shall be allowed for a meal each day.”

     (my emphasis added)

206  It could be construed therefore that the provision relates only to non-shift employees who work during the day, whereas clause 9(4) has application to shift workers and others not only working during the day.  Hence the deliberate use of the words “usual meal time” which implies discretion as to when the meal break is taken as opposed to the structured circumstance provided by clause 16.

207  I accordingly find myself in general agreement with the submissions made by the Respondent with respect to the construction of the provision.  I accept the provisions, when read as a whole and given their common sense meaning, (See Norwest Beef Industries Ltd and Anor v AMIEU (1984) 64 WAIG 2124 at 2133) result in the conclusion that the provisions were aimed at different situations and are intended to perform different purposes.

208  It follows therefore that the Claimants are required to prove the following:

1. What their respective usual meal times were in the period 6 May 1996 to 29 December 1997;

2. That their usual meal time was postponed for more than one hour because in each instance they were required for duty; and

3. That each of them “was required for duty” during their usual mealtime.

Conclusions

209  The issue of the Claimants’ “usual meal time” is of critical importance.  In each instance they need to establish what their usual meal times were.  However there is simply no evidence going to that issue.  It is obvious from the evidence as a whole and, in particular from the evidence of Mr McGlinn and Mr Stribley that the times when meals were taken could and did vary significantly.  Given the state of the evidence it is impossible to arrive at any conclusion as what the usual meal time was for each Claimant for each day of the relevant period.

210  The Claimants rely on the allegation of express requirements made that they work through their usual mealtime.  The alleged express requirements were alleged to have been made by Mr Tipping to Mr Roberts and Mr Chopping in December 1995, by Mr Ron Caruso to Mr Chopping in May or June 1989, by Mr Tipping to Mr Chopping in April or May 1996, by Mr Moyle to Mr Roberts in about March or April 1995, by Jim Heaton to Mr McGlinn in early 1993, by Mr Moon to Mr McGlinn in 1993 or 1994, and by Mr Tipping and Mr Moyle to Mr Chopping in June 1996.  It is also alleged that Mr Marshall following the material period has also made express requirements.

211  The Respondent’s witnesses Mr Yerbury, Mr Girardin, Mr Stribley, Mr Scarvaci and Mr Tipping denied that express requirements were made that the Claimants work their entire shift without a meal break.  It suffices to say that I do not accept the evidence of Mr Roberts, Mr Chopping and Mr McGlinn in that regard.  It runs contrary to the evidence given by Mr Yerbury, who was a most impressive witness, to the effect that meal breaks were taken.  I formed the view that each of Mr Roberts and Mr Chopping structured their evidence in such a way as to best suit their claims.  Mr McGlinn was, on the other hand, so inconsistent in his testimony that it is difficult to accept his evidence in support of the Claimants’ case on this issue and indeed on other issues.

212  Further, and in the alternative, the Claimants rely on an implied requirement of their employer that they be present for duty during their usual meal break.  Mr Roberts in particular maintained that there was no meal breaks taken because the production circumstances simply did not permit the taking of the same.  The evidence of Mr Chopping, Mr Harrison and Mr Green on that issue was in similar vein.  However the evidence given by Mr Yerbury, Mr Girardin, Mr Stribley, Mr Marshall, Mr Scarvaci and Mr Tipping, which I prefer, enables the conclusion to be reached that there was a flexible meal break system in operation during the relevant period.  I accept their evidence that the systems that operated during the relevant period facilitated the operators relieving each other for the purpose of taking breaks including meal breaks.  I also accept; based on the evidence of Mr Yerbury, Mr Girardin and Mr Stribley that in some instances and from time to time supervisors relieved operators so that the operators could take meal breaks.  In any event the Claimants in their own testimony accept having taken meal breaks on maintenance days.

213  The evidence overwhelmingly supports a finding that operators including the Claimants were not required to remain at their stations throughout their shifts.  Further it also supports the finding that they were not required to work for the entirety of their twelve-hour shift.  Such findings are made upon my acceptance of Mr Yerbury’s evidence in preference to other evidence on the issue that stands in dispute with his.  Indeed Mr Stribley, whom I also consider to be an impressive witness, supports Mr Yerbury’s evidence.  Although Mr Stribley’s evidence does not relate to Shift 1, I am nevertheless satisfied that it is demonstrative of what occurred on Shift 1.  The testimony given by Mr Stribley, Mr Yerbury, Mr Girardin, Mr Scarvaci, and Mr Tipping demonstrate such a high degree of commonality of approach between the different shifts that Mr Stribley’s evidence ought to be accepted as being indicative of what occurred across all shifts.  Indeed the fact that there was commonality in approach is established when a comparison is made between the evidence of Mr Yerbury and that of Mr Stribley.  Mr Harrison’s testimony also supports that.  It is the case therefore that the manufacturing process, the duties of operators and the systems employed was consistent from shift team to shift team.  Accordingly I find that the extruder operator, the Claytex operator and the transfer cars operator were not always required to operate their machines for the whole shift and accordingly had spare time to assist others and to take breaks.  Further I accept and find that the operators were not, with the exception of the setter operator, required to continuously monitor the machines.  In fact the machines did, on occasions, run smoothly and without the need for human intervention.  Indeed the whole process was aimed at maintaining production and whether or not the operators were working was only relevant in that context.  Indeed I accept that operators including the Claimants by way of a flexible arrangement took breaks.  In those circumstances there was no need for the Claimants to be instructed to take breaks.  The staffing levels were more than adequate to enable operators to take such breaks.

214  The fact that the Claimants had meal breaks, in my view, is almost undeniable having regard to the evidence of Mr Yerbury and in the light of admissions made.  Having said that I accept that there is some evidence by way of admission to prove that on occasions operators did work through their meal breaks.  However that occurred very occasionally when the production circumstances required it.  In any event those specific instances have not been identified to the extent required to enable the Claimants’ claims to be made out for those particular rare instances.  However, in general terms, the claims simply do not sit comfortably with admissions made, such as, that operators often left the work site in order to purchase food from external outlets.  The Claimants had opportunities to take meal breaks and did in fact do so.  It follows that the Claimants have not made out their contention that their meal breaks were postponed for more than one hour, thereby entitling them to overtime payments.

215  The conclusions that I have reached apply equally to each Claimant, including Mr Harrison, notwithstanding that most of the evidence coming from the Respondent’s witnesses was particular to the Shift 1 team.  In that regard the evidence given by Mr Girardin in particular traverses Mr Harrison’s evidence and permits the finding that the processes for Mr Harrison’s shift and indeed other shifts, with respect to meal breaks, were the same.

216  Finally even if I am wrong in my construction of the Award provisions and it could be said that clause 9(4) needs to be construed by reference to clause 16 of the Award, the evidence does not, for the reasons previously given, in any event support the allegation that each Claimant was compelled to work for more than five and a half hours without a meal break.  Accordingly, even on the best possible construction of the Award so far as the Claimants are concerned, the claims cannot be made out.

217  Overall I find it extremely difficult to be persuaded that the alleged failure to provide a meal break during a twelve-hour shift was just simply accepted by the Claimants as a fait accompli.  I would have thought that such an unfair and intolerable situation would have necessarily resulted in ongoing comment and complaint.  However the issue of meal breaks was never a contentious issue.  Indeed I accept Mr Scarvaci’s evidence that it was not an issue at all.  In my view that explains why there has been such an extraordinary delay in bringing these proceedings.

218  What I fear has happened in these matters is that the Claimants have, in concluding that they did not receive a structured meal break, failed to recognise that they took breaks to have their meals at a time which was convenient and best suited them.  In each instance how and when they took their meal breaks resulted from their own decision rather than any compulsion or necessity thrust upon them by the Respondent.  The failure to have a structured meal break as envisaged by clause 16 of the Award did not derogate from the fact that they had meal breaks.  Given that they had meal breaks at their own convenience undermines their ability to succeed in these matters.

219  The Claimants have not discharged the onus of proof, which rests with them, and each claim should accordingly be dismissed.

G Cicchini

Industrial Magistrate

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