WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

PARTIES TRANSPORT WORKERS' UNION OF AUSTRALIA

CLAIMANT

-v-

Twentieth Superpace Nominees Pty Ltd t/as SCT Logistics

RESPONDENT

CORAM INDUSTRIAL MAGISTRATE G. CICCHINI

HEARD Monday, 7 December 2009, Tuesday, 8 December 2009, Wednesday, 9 December 2009, Thursday, 10 December 2009

DELIVERED Wednesday, 3 March 2010

CLAIM NO. M 8 OF 2009, M 9 OF 2009, M 10 OF 2009

CITATION NO. 2010 WAIRC 00110

CatchWords Alleged breach of clause 19.4.2 of the SCT, Forrestfield WA Agreement 1999, clause 19.4.2 of the SCT Logistics Perth WA Agreement 2003; and clause 19.4.2 of the SCT Logistics Perth WA Agreement 2006; Allegation that three of the Claimant’s members employed by the Respondent were unable to take lunchbreaks; Claim for overtime payments for working through lunchbreaks.

Legislation 

Workplace Relations Act 1996

Industrial Instruments

Transport Workers Award 1998

SCT Forrestfield WA Agreement 1999

SCT Logistics, Perth WA Agreement 2003

SCT Logistics Perth WA Agreement 2006

Cases Cited 

Metropolitan Health Services Board v Australian Nursing Federation (2000) 98 IR 390

 Briginshaw v Briginshaw [1938] 60 CLR 336

 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165

 Pacific Carriers Ltd v BNP Paribas [2004] HCA 35

 Kucks v CSR Ltd (1996) 66 IR 102

 AMIEU v Coles Supermarkets Australia Pty Ltd (1998) 80 IR 208

Cases Referred to

in Judgement 

Project Blue Sky Inc and Others v Australian Broadcasting Authority [1998] 194 CLR 355

City of Wanneroo v Holmes (1987) 30 IR 362

BHP Billiton Iron Ore Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers (Western Australian Branch) [2006] WASCA 124

Result Claims Proven

Representation 

Claimant  Mr S. Millman instructed by Messrs Slater and Gordon Lawyers appeared for the Claimant.

Respondent Mr M. Rinaldi with Mr C Broadbent instructed by Marsh and Maher appeared for the Respondent.

REASONS FOR DECISION

Background

1         The Respondent is a national transport and logistics company with its main office in Victoria.  It undertakes rail and road bulk transport operations in Australia, primarily providing rail transport across the continent, and road transport along the north-south transport corridors of eastern Australia.  It owns and operates locomotives and rolling stock systems on the east-west rail network.  These are connected through modal facilities in New South Wales, Victoria, South Australia and Western Australia.

2         In Western Australia it operates a localised distribution network centred at its Forrestfield depot where rail freight is received.  From that place it distributes stock by road transport within the Perth metropolitan and outer metropolitan areas and to Bunbury.  From time to time it also services more distant locations such as Albany and Geraldton; however most of its long distance road transport is carried out by a third party carrier.  It also conducts a third party logistics operation on behalf of the Fosters Group from premises adjacent to its Forrestfield depot.

3         Timothy Falconer, Mitchell O’Brien and Bernie Williams, all members of the Transport Workers Union (TWU), work for the Respondent at its Forrestfield depot.  They are longstanding employees of the Respondent.  Mr Falconer and Mr O’Brien are engaged to drive trucks.  They drive “B double” configured trucks and sometimes semi trailers in delivering stock to client distribution centres and other places.  Mr Williams on the other hand is engaged to drive a forklift at the Forrestfield depot.  His primary responsibility is to unload and back load trains.  He sometimes is engaged in moving stock to and within warehouses.  In each case their duties have remained unchanged for many years and were as described during the material period.

Industrial Instruments

4         The employment of Mr Williams, Mr O’Brien and Mr Falconer has, during the relevant period, been regulated by the Transport Workers Award 1998 (the Award) and a number of enterprise bargaining agreements (EBAs).  The EBA prevails over the Award, to the extent of any inconsistency.  The first EBA namely SCT Forrestfield WA Agreement 1999 (1999 Agreement) came into force in November 1999 and was replaced in August 2003 by the SCT Logistics Perth WA Agreement 2003 (2003 Agreement).  The 2003 Agreement was in turn replaced in 2006 by the SCT Logistics Perth WA Agreement 2006 (2006 Agreement).

Claims and Response

5         The Claimant alleges that the Respondent is in breach of the 1999, 2003 and 2006 Agreements by not paying Mr Williams, Mr O’Brien and Mr Falconer their correct entitlements for having worked through their lunchbreaks in circumstances where they were unable to have a lunchbreak.

Truck Drivers

6         It is alleged that from March 2003 until December 2007 Mr O’Brien and Mr Falconer were unable to take a lunch or meal break because the system of work adopted by the Respondent was such that it made no provision for taking a lunch or meal break.  Half an hour’s pay at double time is claimed for each day worked.

7         The Respondent contends that truck drivers were at all relevant times able to take and did take paid lunchbreaks.  They were never requested to defer their lunch.  Indeed there was never an inability to have a lunchbreak.  Most truck drivers with some exceptions preferred to not take an unpaid lunchbreak because it suited their purposes providing them with advantages such as earlier finishing times or more pay.

8         The Respondent asserts that the lunchbreaks issue has only arisen because of the changes made in February 2008, enforcing the taking of an unpaid half hour lunchbreak.  Prior to then, there had never been any complaint by drivers or by the Respondent about the lunchbreak practice or any suggestion that truck drivers had been incorrectly paid.

Forklift Driver

9         The Claimant alleges that Mr Williams was, on occasions during the period April 2003 to December 2007, directed to work through his lunchbreak and although paid for having done so was not paid his correct entitlement that is at overtime rates.

10      The Respondent contends that Mr Williams’ claim that he was directed to work through his lunchbreak on the material dates is both unsubstantiated and incorrect.  The Respondent suggests that his claims are not credible and should not be accepted.

Relevant Employment Conditions

Hours

11      Each EBA required fulltime employees to work a 10 hour day, consisting of 8 hours at ordinary time and 2 hours of overtime four days per week.  Employees could also choose to work a 5th day consisting of 7.6 hours payable at ordinary rates.  If they chose to work a 5th day, they were not required to work the full day however they were required to work for at least 4 hours on that day.  Any time worked in excess of 7.6 hours on 5th day was payable at overtime rates.  That arrangement continues.

Meal break/Lunchbreak

12      The Award allowed employees to take a daily regular unpaid meal break of between 30 minutes and one hour during the ordinary hours of work except where unforseen extraordinary circumstances arose which made the taking of the regular meal break impracticable.

13      It provided and continues to provide:

36         Meal Times

36.1      Regular meal break

   36.1.1 An employee shall be allowed a regular meal break during                                                           the ordinary hours of work except where unforseen extraordinary circumstances arise which make the allowance of the regular meal break impracticable.

14      The meal break shall:

36.1.1(a) be of a regular duration of not more that one hour or less

                than 30 minutes;

36.1.1(b) commence not earlier that three and one-half hours after an

                employee’s fixed starting time of the ordinary hours of 

                work; and

36.1.1(c) commence not later than five an one-half hours after an

                employee’s fixed starting time of the ordinary hours

                of work.

36.1.2     Provide that in respect of 36.1.1(b) and 36.1.1(c), where it is

               reasonable and practicable the meal break shall be arranged          

               to be in balance with the ordinary hours of work.

36.1.3        If the meal break is not allowed, all time worked after the

               commencement time of the regular meal break until a break

               without pay for a meal time is allowed shall be paid for at the 

               rate of ordinary time, the payment to be in addition to any 

               payment due in respect of a weekly or casual wage.

15      The applicable EBA provisions relating to lunchbreaks provided:

 CLAUSE 19.4.2    Driver Employees ect

Driver employees agree to defer lunchbreaks upon request and will continue at ordinary rate of pay until such time that a lunchbreak is available.  If an employee is unable to have a lunchbreak, then that employee will be paid at an additional 30 minutes overtime.  An employee may request a lunchbreak and approval may not be withheld.  Lunchbreaks may be allocated by management to drivers on return to yard during each shift which if allocated must be taken.

16      Although only subclause 19.4.2 of the 2006 Agreement has been reproduced above the relevant clauses in the 1999, 2003 are the same as the 2006 Agreement except that the word “an” is missing before the words “additional 30 minutes overtime” in the 2003 Agreement.

17      The Award and the EBAs use different terms relating to the taking of a break for a meal or lunch.  In my view, nothing turns on the use of different terminology.  Clearly each provision is aimed at ensuring that an employee is able to take a timed, unpaid break in order to have a meal and/or do other things or to receive payment in lieu thereof in the event that it is unable to be taken. 

18      The terms “lunchbreak” and “meal break” are not defined in the respective industrial instrument in which they are found.  The common link with respect to each is that the word “break” is used.  “Break” is defined in the Shorter Oxford Dictionary to mean;

 “To rupture union or continuity; to disrupt; to stop for the time…”

19      It follows that in order to have a meal break or a lunchbreak there must a disruption to work and discontinuance of it.  It must necessarily entail stopping for the time required by the applicable industrial instrument, primarily to facilitate the consumption of lunch or a meal.

Issues to be Determined

20      The pivotal issues to be determined in these matters are whether during the material period Mr O’Brien, Mr Falconer and Mr Williams were:

1. requested by the Respondent to defer their lunchbreak; and

2. unable to have a lunchbreak.

21      The Respondent submits that in order to prove its claim the Claimant must establish that on each relevant day the men were requested by the Respondent to defer or not to take their lunchbreak and they were unable to have a lunchbreak.  On the other hand the Claimant seems to suggest that all that is required is establish that the men were unable to take a lunchbreak.

22      I accept the Respondent’s submission.  A proper construction of the subclause requires both elements to be satisfied.

Witnesses

23      The Claimant called Mr O’Brien, Mr Falconer, Mr Williams and its employee Mr Joshua Dalliston.  Mr Dalliston prepared a number of spread sheets (exhibits 4.1, 4.2 and 4.3) using information contained on Mr O’Brien, Mr Falconer, and Mr Williams’ time cards (Exhibit 5 volumes 1-3) in order to particularise the claims.

24      The Respondent called a number of its current and past employees.  They were Mr Bradley Moore, its current State Manager, his predecessor Mr Neil Griffiths, who now works for another transport company, Mr Douglas James, its former Operations Manager who retired in 2008, Mr Mark Pitcher, its current Refrigeration Manager and former Operations Manger who before then was a truck driver working for the Respondent, Mr Andrew Gunn, Transport Manager at the Fosters warehouse, Mr Edward Davies, its Operations Manager for Rail and Mr Stephen Walker, its current Transit Operations Manager. 

Assessment of Witnesses

25      Mr O’Brien, Mr Falconer and Mr Williams gave their evidence in an open, forthright, unequivocal and seemingly honest manner.  Much of their evidence has not been contradicted and in any event is supported by the documentary evidence.  They stood firm when challenged under cross-examination.  There is no reason as to why their evidence should not be accepted.  I prefer their evidence where there is direct conflict.

26      The evidence given by Mr Moore is of little assistance given that much of what is in issue predated his employment.  Mr Gunn’s evidence lacked relevance.  Mr Pitcher’s evidence was anecdotal and lacked detail with respect to Mr O’Brien and Mr Falconer.  The evidence given by Mr Griffiths, Mr James, Mr Davies and Mr Walker lacked the specificity required to attract significant weight.  Much of Mr Davies’ evidence was predicated on assumptions rather than direct knowledge or observations.  Mr Walker’s evidence was somewhat limited.  His concession that his memory is not all that good (see transcript - p314) also raises difficulty. 

Findings of Fact - Truck Drivers

27      Mr O’Brien testified that about 15 years ago, when he began full time employment as a truck driver with the Respondent, it’s then Fleet Controller Terry Tallowin told him that because of the need to meet customer requirements a dedicated lunchbreak would not be taken.  He said that it was “common knowledge” that drivers were required to work though lunch.  I accept his evidence in that regard.  It has not been rebutted.  Mr Douglas James’ evidence supports the fact that prior to 1999 and subsequently there was a practice of not taking an unpaid half hour break.  He testified that the practice not to take an unpaid lunchbreak was something not only well known to Mr Griffiths’ predecessor Mr Warchomij but also to Claimant.  He formed that view whilst involved in the 1999 EBA negotiations.  The practice not to take lunchbreaks continued until 2008.

28      In 2008 Mr Griffiths made a decision to enforce the taking of an unpaid half hour lunchbreak.  His decision upset many truck drivers and indeed drew a barrage of protests culminating in a dispute which required the intervention and assistance of the Australian Industrial Relations Commission.  His decision to enforce the taking a lunchbreak was in part based on his view that drivers had been abusing the system.  He had observed them to take what was in effect paid lunchbreaks.  He put a stop to that.  Further he was of the view that “a recorded lunchbreak” was desirable to demonstrate that the Respondent was complying with occupational safety and health requirements relating to fatigue management.

29      It is obvious that the practice of not taking of a dedicated lunchbreak would have suited the Respondent’s operational requirements because it would have inevitably created efficiencies.  The taking of a dedicated half hour lunchbreak would have made the Respondent’s Fleet Controllers scheduling tasks more difficult and would have got in the way of customer requirements.  Indeed the Respondent’s primary objective was the need to meet customer requirements.  Such was clear from Mr O’Brien and Mr Davies’ evidence.  The absence of an organised lunchbreak would have assisted the Respondent by enabling its processes to flow more rapidly and not to delay deliveries. 

30      Mr O’Brien testified that Mr Tallowin’s directive did not suit him.  He much prefers the current system which enforces the taking of an unpaid half hour lunchbreak. Notwithstanding that, I accept that the former practice suited most truck drivers.  Mr Pitcher’s evidence, that of Mr Falconer and the documentary evidence (see Exhibit 9) establishes that the majority of truck drivers including Mr Falconer preferred not to take an unpaid half hour lunchbreak because it provided them with time and/or monetary advantages such as earlier finishing times or the earlier commencement of overtime.  Both the Respondent and its truck drivers derived benefits from that practice. 

31      There is no dispute about the fact that despite the practice of not having a lunchbreak Mr O’Brien and Mr Falconer were nevertheless able to have their lunch when ever they wanted.  They do not suggest that they were not able to have lunch on any particular day nor is suggested that they forwent eating lunch.  Their evidence is that they generally ate their lunch at or on their truck at convenient times, mainly whilst waiting for their truck to be loaded or unloaded.  Occasionally lunch was eaten elsewhere or whilst driving.  They did not expect to take an unpaid lunchbreak.  It is not suggested by them that they were on each relevant day asked by the Respondent to defer and/or not take a lunchbreak.  It appears also that they accepted that situation.  They did not, except in the rarest of circumstances, ask their employer to allow them an unpaid lunchbreak.  When such a request was made it was granted.

32      The Respondent argues, based on the observations of Mr Griffith and Mr James that despite there being no provision for the taking of an unpaid half hour lunchbreak, truck drivers nevertheless took a daily lunchbreak.  Mr Griffith and Mr James testified that they had, on occasions, seen drivers sitting in lunch rooms and at other places having lunch.  Mr Griffiths in particular asserts that truck drivers had multiple opportunities to take lunchbreaks and indeed did take lunchbreaks away from their trucks be it at the SCT depot, customer distribution centres or other places.  He saw many of them including Mr Falconer taking lunchbreaks at such places.  However Mr Griffiths’ evidence and that of Mr James cannot and does not establish that truck drivers took a dedicated full half hour lunchbreak on each of those occasions.  Their evidence which was based on limited observations lacked specificity.  They made broad generalised allegations which were anecdotal in nature.  At best such evidence can only establish that from time to time some drivers were seen to be stopped away from their trucks having their lunch.  It cannot establish that on each day relevant to these claims that Mr O’Brien and Mr Falconer took a full half hour lunchbreak.  The evidence does not establish that truck drivers discontinued work to have lunch.  Rather the evidence is to the effect that there was no “break” in the truck drivers’ obligations.  They had to be ready to drive as soon as their truck was ready to be driven.  Their duty was to be remaining at the ready and they did that.  Time spent whilst waiting for their truck to be loaded or unloaded or waiting for paper work does not constitute a break. 

33      I conclude that during the period of these claims and up to February 2008 neither Mr O’Brien nor Mr Falconer took an unpaid half hour lunch or meal break.  There was no provision for it within the Respondent’s operations.  At that time both the Respondent and its truck drivers participated in a longstanding practice which had developed that lunch or meals would be eaten whilst on the job when convenient, having regard to the work at hand.  Indeed the relevant time records kept by the Respondent with respect to Mr O’Brien and Mr Falconer clearly reflect that a dedicated unpaid half hour lunch or meal break was not taken except in the rarest of circumstances.  Lorraine Pritchard who was the Respondent’s Payroll Clerk during the material period said in her statement, received by consent, that unless otherwise indicated the default position was that truck drivers would work without taking a lunchbreak and be paid accordingly.  The result was that they were paid for a 10.5 hour day (5.30am to 4 pm) consisting of 8 hours at ordinary time, 2 hours at time and a half, and 30 minutes at double time.  The effect of truck drivers not taking lunch was that they were able to perform an extra 30 minutes work per day paid at double time.  They were not paid overtime rates for having worked through their lunchbreak.

Findings of Fact - Forklift Driver

34      Mr Williams’ position was somewhat different.  Ms Pritchard in her statement said that the default position with respect to forklift drivers was that they would take a daily unpaid half hour lunchbreak.  Typically forklift drivers would commence at 5.30am and finish at 4.00pm.  They would be paid 8 hours at ordinary time (5.30am to 2.00pm) which spanned to across the lunchbreak period and thereafter 2 hours at time and a half (2.00pm to 4.00pm).  If the forklift driver’s time card signed off by a person with authority indicated that on a given day no lunchbreak had been taken then the half hour normally deducted to take account of the lunchbreak would not be made resulting in the forklift driver receiving an additional half hour of overtime at double time.

35      I accept that in each instance where Mr Williams’ time cards indicate that he did not take a lunchbreak that a lunchbreak was not taken.  Lunch was not taken because of a requirement made of him by of one of his dock supervisors.  Not surprisingly he cannot, now many years after the event, specifically recall the name of the particular supervisor concerned in each instance.  He can specifically remember Ron Marsh, Warren Osboine and Dave whose surname he could not recall, as being some of the dock supervisors who required him to work through lunch.  However in more recent years he has had many different dock supervisors.  It is of note that the bulk of the claim which relates to him covers the period August 2006 to December 2008.  The Respondent’s employment records (Exhibit 8) establish that Mr Ron Marsh’s employment with the Respondent ceased on 18 August 2006 and that Mr Osboine’s employment ceased on 30 April 2007.  It follows therefore that most of the directives to work through lunch would have come from other dock supervisors.  The evidence of Mr Davies and Mr Walker enables a finding to be made that Mr Williams was supervised by many dock supervisors.  It is probable therefore that Mr Williams was instructed to work through his lunchbreak not only by those he specifically remembers but also by others including Adrian Baines, Stuart Wells, Manuel Merredin, Brett Williams, Steve Wilfing, Jason Taylor and Adam Luscombe.

36      I accept that Mr Williams never worked through lunch without authority or directive.  The increased requirements for him to work through lunch which started in about August 2006 coincided with him working at Warehouse 3 leading up to the busy Christmas period.  I also accept that he did not make his own arrangements to work through lunch in order to leave early for medical appointments.  His medical issues have only arisen in the last 12 to 14 months and post date the material period. 

37      The Respondent contends also that Mr Williams worked through his lunch hour so that he could leave before the end of his shift.  It provided a schedule attached to counsels’ written submissions highlighting numerous examples gleaned from Exhibit 5 of when that is said to have occurred.  Mr Williams denied that he worked through his lunchbreak so that he could leave early.  I accept his evidence.  The fact Mr Williams regularly left early on occasions when he worked through his lunchbreak is quite apparent but that does not necessarily lead to the conclusion that he worked through his lunchbreak, in order to finish early.  The earlier finish is also consistent with Mr Williams’ evidence that he was instructed to work through his lunchbreak.  It follows that on those occasions he could have finished earlier because he worked through his lunchbreak.

38      Except for the odd instance the ‘N/L” (no lunch) notation on Mr Williams’ job card was made by one of his dock supervisors.  An examination of his time cards (Exhibit 5) reveals that many of the N/L entries noted thereon have not been initialled by either his manager or his supervisor but despite that at the end of the relevant week a manager or supervisor has authorised payment to him for having worked through a lunchbreak as recorded on his time card.  The entries on his time cards which were initially accepted by the Respondent to be accurate clearly corroborate Mr Williams’ assertions.  It is difficult in those circumstances to rationalise how the Respondent can now take issue with the correctness of Mr Williams’ time cards. 

39      I accept Mr Davies’ and Mr Walker’s evidence that they did not at any stage ask Mr Williams or anyone else for that matter not to take lunch.  It seems that they only asked rail forklift drivers unloading trains to defer their lunchbreaks when the Respondent was under time pressure to meet customer demands.  On such occasions they asked them to delay taking their lunchbreak by about half an hour in order to finish unloading a train.  However I do not accept their contention that all forklift drivers always had lunch and if they did not it was so they could get away early.  It is obvious that that Mr Davies did not directly supervise Mr Williams and that Mr Walker only did so occasionally.  In fact Mr Williams was supervised by any number of dock supervisors under Mr Davies’ control.  Both Mr Davies and Mr Walker accepted under cross-examination that they cannot know whether any of the dock supervisors instructed Mr Williams to work through lunch.  Mr Davies said that if that had happened he would have expected to be told but was not.  Any of a number of supervisors had authority to adjust time cards and authorise payments and accordingly the instruction given to work through lunch may not have been brought to Davies’ attention.  There appears to have been no protocols for the reporting of such eventuality.  I find that dock supervisors have, without Mr Davies’ knowledge or consent, instructed Mr Williams to work through his lunch hour.  Mr Walker’s evidence (transcript pp 334-5) suggests a degree of autonomy given to dock supervisors.  Just because Mr Davies and Mr Walker were unaware that Mr Williams had been instructed to work through lunch does not mean it did not happen. 

40      The Respondent has over many years not taken issue with the correctness of the entries made on Mr Williams’ time cards.  It has accepted those entries as being legitimate and accordingly where claimed paid him at the ordinary rate of pay for having worked through his lunchbreak.  In those circumstances it will be difficult, without significant evidence of weight to the contrary, for the Respondent to displace Mr Williams’ credible evidence about his time card entries being correct. 

Determination

41      The determination of these claims necessarily requires the construction of subclause 19.4.2 of the Agreements.  The contemporary approach to construction which stems from Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 is that factors such as purpose, general policy and context have to be taken into account rather than just the literal meaning of a provision so as to create consistency and fairness.  The interpretation of the relevant industrial instruments in these matters begins with a consideration of the words used and their natural meaning but they cannot be interpreted in a vacuum divorced from industrial realities.  (See City of Wanneroo v Holmes (1987) 30 IR 362 per French J at 378 and BHP Billiton Iron Ore Pty Ltd v  Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers (Western Australian Branch) [2006] WASCA 124 per Pullin J at [19] - [23]).

42      The proper construction of the subclause will necessarily require a consideration of the objectives of the Agreements.  The broad objectives of each Agreement are the same.  Clause 2 of the 2006 Agreement states that it is “built on a concentrated focus aimed at delivering the best possible service to the customer.”  It recognises that the customer provides the Respondent and its employees with work, revenue, profit, viability and growth.  Subclause 2.3 makes it clear that “the customer is the cornerstone” of the Respondent and its employees’ future.  Clause 5 further refines the Agreement’s objectives.  It states that the Agreement is aimed at developing and maintaining a culture of common purpose, trust, and co-operation that will improve the Respondent’s profitability.  It also goes on to specify the following further objectives:

5.1     Operate within flexible, responsive parameters to meet dynamic

          customer market requirements.

5.2          Develop a highly motivated, multi skilled. Flexible and

          adaptable workforce.

5.3        Continue to foster co-operation between all staff in a climate of  

          consultation not confrontation through the recognition of the 

          needs and concerns of all employees.

5.4     Remove inefficient work practices and processes in all areas of

          operation to ensure flexibility and quality, timeliness and

          reliability of services.

5.5    All employees will conduct themselves in a professional manner 

         that will enhance the Company image.

5.6    To provide wage increases in line with Clause 24 of this

        Agreement.

43      The objectives of efficiency, timeliness flexibility and co-operation are reflected in individual clauses of the Agreements.  Those clauses recognise the existence of practices aimed at meeting the objectives of the Agreement so as to increase the Respondent’s profitability.  Clause 20 is one such clause.  It provides:

CLAUSE 20.    FLEXIBILITY DURING HOURS OF WORK

            CLAUSE 20.1   Breaks

The flexibility which currently exists in the depot in the staggering of meal and rest breaks to enable continuous loading/unloading will continue.  Additionally this practice will be reviewed as required by the Consultative Committee to ensure continuous operation, high service levels and the flexibility to meet customer’s requirements.  It is intended that lunch breaks be taken during shunting activities where possible.

44      Subclause 19.4.2 of the Agreements fits comfortably with objectives of the Agreements and is consistent with other provisions within them.  It too recognises existing practices.  It appears to have been concluded on the basis that truck drivers did not, as a matter of routine, take lunchbreaks but would be afforded one upon their request.  That pre-existing practice was not only contemplated by the Agreements but also formed part of the Respondent’s operation.  The documentary evidence (Exhibit 5) supports that.  For example Mr Falconer’s time cards demonstrate that he routinely did not take lunchbreaks however on 5 July 2006 he took a one hour lunchbreak.  The inference to be drawn is that he sought an extended lunchbreak for some special purpose and was granted it (see page 961, volume 3 of Exhibit 5).

45      There can be no suggestion that subclause 19.4.2 of the Agreement somehow fetters or removes the Award entitlement to a lunchbreak.  To the contrary the subclause appears to reaffirm the entitlement to a lunchbreak and makes specific provision for its taking.  The third and fourth sentences of the subclause provide:

“An employee may request a lunch break and approval may not be withheld.  Lunch breaks may be allocated by Management to drivers on return to the yard during each shift which if allocated must be taken.”

Truck Drivers

46      One of the critical issues to be decided in the matters relating to Mr O’Brien and Mr Falconer is whether they took a lunchbreak. 

47      The taking of a lunchbreak, as opposed to merely eating lunch at a convenient time involves a disruption to the continuity of work.  It creates a hiatus in the continuum of work.  The taking of a lunchbreak will inevitably require the cessation of work responsibilities and obligations in order to consume a meal (if desired) and/or to do anything else not connected with work that the employee wants to do in his or her own time. 

48      Accounting for some rare exceptions, it is clear that during the material period neither Mr O’Brien nor Mr Falconer took lunchbreaks.  That was because the Respondent’s system of work which was customer focused did not facilitate the taking of lunchbreaks.  It is the case that each of Mr O’Brien and Mr Falconer were able to eat their lunch at convenient times.  However when doing so they were still on duty with all the attendant responsibilities that such entails.  They were required to maintain governance over their truck and could not leave their trucks other than for short periods.  In essence they were tied to their truck and could not get away to do other things.   The fact that on very odd occasions they may have been able to leave their trucks for short periods and even have a meal away from them does not change the character of what was happening.  What was happening was that they were having lunch whilst working and not during a dedicated lunchbreak.  It follows that they had lunch but not a lunchbreak.

49      Subclause 19.4.2 recognises the need to service customers.  It was created against that background and to give efficacy to the objectives of the Agreements.  Consistent with objectives of the Agreements, truck drivers agreed to defer their lunchbreaks.  The first sentence of the subclause reflects that.  It provides:

“Driver employees agree to defer lunch breaks upon request and will continue at ordinary rate of payment until such time that a lunchbreak is available.”

50      The first sentence of the subclause is an affirmation, expressed as an agreement, of the existing practice and willingness of drivers to defer their lunchbreak in order to achieve the Respondent’s objectives with which they agreed.  In those circumstances the words “upon request” therein can be construed to mean a standing request that truck drivers defer their lunchbreaks until such time as the Respondent allowed one.  That standing request originated prior to the commencement of the 1999 Agreement.  It was recognised, adopted and continued in the 1999 and subsequent Agreements until it was ceased by directive in February 2008.  The existence of the standing request is apparent from the conduct of the parties.  The industrial reality was that truck drivers worked in accordance with the practice which they and the Respondent had developed that they not take a lunchbreak.  The drivers were prepared to do so to meet the Respondent’s objectives.  It is obvious that neither Mr O’Brien nor Mr Falconer were on each day specifically instructed to defer their lunchbreak.  It did not happen that way.  The meaning of “upon request” in the first sentence of subclause 19.4.2 must, so as to achieve consistency and fairness, be construed to include standing request having regard to the existent industrial reality.

51      The second sentence of subclause 19.4.2 provides:

“If an employee is unable to have a lunch break, then that employee will be paid an additional 30 minutes overtime.”

52      Mr O’Brien and Mr Falconer were, almost invariably, unable to take a lunchbreak.  They were not afforded the opportunity to do so because the Respondent’s work practices failed to facilitate the taking of a lunchbreak.  The Respondent’s position throughout was that the ability to consume a meal during an interlude in work was sufficient.  The facilitation of time during which lunch can be consumed is however an entirely different concept to the taking of a lunchbreak. 

53      In order for the claims relating to Mr O’Brien and Mr Falconer to succeed, the Claimant must prove on the balance of probabilities that for each day claimed, the Respondent requested Mr O’Brien and Mr Falconer to defer taking their lunchbreak and that they in each instance were unable to take a lunchbreak on the day.  I am satisfied that has occurred.  There has been a breach of the Agreements and each of Mr O’Brien and Mr Falconer are entitled to payment of an additional 30 minutes overtime for the days worked during the period of the claim with the exception of the claim relating to Mr Falconer for the week ending 9 July 2006.  In that regard it is obvious that on 5 July 2006 Mr Falconer took a one hour unpaid lunchbreak and accordingly the claim for that day cannot succeed.  An adjustment will have to be made to the calculations in Exhibit 4.3.

Forklift Driver

54      The claim relating to Mr Falconer is to be determined on the facts.  As indicated earlier I accept his evidence that he was, with respect to the days claimed, instructed to work through his lunchbreaks and that he was thereafter unable to have a lunchbreak.  It follows that there has been a breach of the Agreements and that Mr Williams is entitled to be paid an additional thirty minutes over time for each day he worked through his lunchbreak.

Rate of Pay

55      Clause 19.4.2 provides that if an employee is unable to have a lunchbreak, then that employee will be paid at “an additional 30 minutes overtime”. 

56      The Respondent contends that the penalty payment referred to in the clause is extra time above that which is payable.  Therefore the 30 minute penalty payment is to be paid at the ordinary rate of pay.  It is not a prescribed penalty such as 1.5 times or double time which appears elsewhere in the Agreements.  Such prescribed penalty rates could have been easily stipulated in subclause 19.4.2 but are not.  The only reference to the rate is that of “continuing at the ordinary rate of pay” which appears not only in subclause 19.4.2 but also in subclause 36.1.3 which refers to an additional payment at the rate of ordinary time where a meal break is not allowed.

57      I do not accept the Respondent’s contention.  Subclause 19.4.2 expressly provides for the payment of 30 minutes “overtime” when a lunchbreak is unable to be taken.  If it was intended that the 30 minutes be paid at ordinary time then it would have said so.  It could have provided something similar to that contained in subclause 36.1.3 of the Award which stipulates the payment of ordinary time when a meal break is unable to be taken.  It appears rather that the word “overtime” has been deliberately used.  The word “overtime” means working beyond ordinary hours.  When work is done beyond ordinary hours it attracts a penalty rate.  The rate at which the penalty will be applied will be dependant upon the prevailing circumstances.  In these instances the correct rate was double time.

58      I accept that the Claims as reflected in Exhibits 4.1, 4.2 and 4.3 have been calculated using the correct rates of pay.

Conclusion

59      The claim made in relation to Mr Williams is made out in its entirety. 

60      The claims relating to Mr O’Brien and Mr Falconer are not made out in their entirety.  Parts of those claims fall outside the six year limitation period.  Given that such claims were lodged on 18 March 2009 the allegations with respect to the pay period ending 16 March 2003 cannot succeed.  Furthermore there needs to be an adjustment made with respect Mr Falconer given the error in Exhibit 4.3.  He took an unpaid lunchbreak on 5 July 2006 and therefore the Claimant cannot be successful with respect to that day.  Otherwise the claims are proved.

61      As a consequence of the breaches of subclause 19.4.2 of the 1999, 2003 and 2006 Agreements the Respondent has underpaid Mr Williams $2,119.15, Mr O’Brien $13,859.79 and Mr Falconer $17,771.26.

G. Cicchini

Industrial Magistrate