T10863 to T10878
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 The Minister for Infrastructure and Parkfield Pty Ltd and Petrecon Australia Pty Ltd
Industrial dispute - alleged breach of award REASONS FOR PRELIMINARY DECISION [1] These 16 applications, made by the Minister for Infrastructure (the applicant) pursuant to s.29(1C) of the Industrial Relations Act 1984 (the Act), centered on a dispute with Parkfield Pty Ltd and Petrecon Australia Pty Ltd (the respondents) over the alleged breach of the Restaurant Keepers Award (the award). [2] It was agreed that the award bound the respondents and all employees referred to in the 16 applications occupied classifications contained therein. [3] The Department of Infrastructure Energy And Resources served a "Notice To Produce Records Of Employment" on the respondents, pursuant to section 75(5) of the Act. The respondents were required to provide a true copy of the records of employment, as prescribed by Regulation 25(1) of the Industrial Relations Regulations 1993, for all employees employed by the respondents at The Officers Mess, Arthur Highway, Eaglehawk Neck, Tasmania. [4] The respondents complied with that notice. [5] Based on those records, Mr G Williams, for the applicant, contended the respondents had breached Clauses 7, 8, 11, 14, 23, 25 and 36 of the award in respect to some or all of the 16 employees. [6] He presented submissions in support of this contention. [7] Mrs M. Lovett of Hand Ogilvie and Breheney, Barristers and Solicitors, sought and was granted leave to appear for and on behalf of the respondents. [8] It was her preliminary submission that the calculations, undertaken by the applicant and attached to each application, were not accurate, in that they contained amounts for payment in lieu of meal breaks. [9] Mrs Lovett conceded that the records kept by the respondents might not have been kept in the manner required by the award or the Act, however, it was her contention that all employees subject to these applications received their breaks in accordance with Clause 23 of the award. [10] Given Mrs Lovett's preliminary submission and with the support of the applicant, it was decided that I should hear and determine, as a threshold matter, whether or not the calculations undertaken by the applicant, in respect to Clause 23 of the award, should form part of the claim. [11] Each of the employees subject to these applications, completed a "weekly time sheet" on which they recorded the start and finish time for each day worked, however, they did not identify each occasion they had a rest period or a meal period. [12] The applicant took the records of the respondents to be a true record. As a result, calculations were made on the basis that meal periods were not provided, as prescribed by Clause 23(a) of the award, for certain employees. [13] There is no requirement to make any determination on this issue in respect to Andrew Jones (T10872); Michael Karydis (T10873); Wendy Margaret Hiller (T10870) and Sue Fay Pettman (T10877), as the applicant makes no claim for breach of award in respect to their meal periods. WITNESSES [14] The following former employees gave evidence under oath and that evidence is summarized as follows: [15] Jodie Anne Olive (T10876) commenced working as a kitchen hand and progressed to the classification of cook. [16] It was her evidence that she would have a break at roughly 11am and another one after the lunchtime rush at about 2pm. She was never denied a break and the length of the breaks was of 15 to 20 minutes duration. [17] Leesa Maree Bentley (T10864) undertook general duties, which included serving customers and taking their meal orders. [18] Ms Bentley said her break depended on the time she started. A 9am start would see her having a break about 11am and another one after the busy lunch period. The duration of those breaks, which occurred between the time she started and finished work, were between 10 to 20 minutes. [19] During the morning break she would normally sit down have something to eat and then go outside for a cigarette. She was always permitted to have a break. [20] Rebecca Anne Bone (T10865) commenced working as a kitchen hand and progressed to the classification of cook. [21] It was her evidence that she always received breaks and during those breaks she would either sit down have something to eat or have a cigarette and coffee. [22] When she started work at 10am, her first break was at approximately 11am prior to the busy lunch period starting. She would have another break after the lunch period. [23] Ms Bone stated that the respondents always supplied her food or drinks free of charge. She also affirmed there was no roster for taking the breaks and the employees just worked it out between themselves. [24] In response to a question in respect to the duration of her breaks, Ms Bone stated that it was: "Long enough to normally have a cigarette, probably something to eat if it was that time, so it would have been a 10 to 15-minute break I suppose". [25] Sue Fay Pettman (T10877) carried out general cleaning duties for 2 - 2.5 hours on each occasion she worked. On each of those occasions she had at least one break lasting 10 to 12 minutes. [26] Wendy Margaret Hiller (T10870) worked at the front counter and also served in the restaurant. [27] She was allowed to have a cigarette whenever she wanted so long as the counter was not left unattended. [28] It was also her evidence that when she worked in the evening she had a meal and it was supplied and paid for by the employer. The duration of the break was approximately 20 to 30 minutes. [29] Rosemary Carter (T10866) worked at the counter and also served in the restaurant. [30] Ms Carter stated that she took meal breaks and rest periods every time she went to work. If she worked on an evening shift the cook would usually get a meal for her. [31] If she commenced work at 5 p.m. she would probably take a break at 6 p.m. because after that the clients would be arriving at the restaurant. [32] In answer to a question from Mr. Williams, who asked her to reflect on three occasions she worked, Ms Carter said that she would have had a 10-minute and a 15-minute break on each of those occasions. But later in answer to a question about the duration of her meal breaks Ms Carter indicated that she was a very slow eater and it would take her at least 20 to 30 minutes to eat a meal. ADDITIONAL WITNESSES [33] In addition to the former employees, the Commission heard from another two witnesses. These additional witnesses were not persons with respect to whom there is a dispute before the Commission. Their evidence, given under oath, is summarized as follows: [34] Helena Taylor Swift, operated a business in Eaglehawk Neck. It was a souvenir shop and visitor information center. It was situated inside The Officers Mess. Her business operated between the hours of approximately 8:30 am and 7 pm. [35] It was her evidence that the respondents would tell the employees " to go off and have a break and most of them smoked so they [would] go out and have ... 10 minutes off ... and they always had something to eat. Never had to pay for anything ... they had." [36] Ms Swift said she would sit with the two employees, who started around 7:30 a.m., and have toast and tea with them around 9 to 9:30 a.m. - the duration of that break would probably have been 20 minutes to half an hour. [37] She also stated that she had coffee with other employees and that some employees, during their break, would walk down to the beach and have a cigarette, others would sit outside in the sun. [38] Emma Louise Drysdale is the daughter of the directors and shareholders of one of the respondents. [39] Her duties included: bookkeeping; maintaining the employment records in accordance with the Act; entering the daily takes on the computer; paying the accounts; paying wages; checking orders; and when not undertaking those duties she played a supervisory role in the restaurant. [40] She said she ascertained the hours worked by the employees from the time sheet provided by them. In addition, she said, the employees went by the roster, which was worked out two weeks in advance. [41] Ms Drysdale said that she did not make provision on the time sheet for employees to enter the time they commenced and concluded their breaks because they were paid for all their breaks. [42] She went on to say:" Well, that's my fault for not .... making sure the employees put that on their actual time-sheet. I didn't think it was needed. We made sure the staff had their breaks. We watched them have their breaks; told them they knew to take their breaks, but because they were paid breaks, we didn't require them to put down their break times on that sheet..." [43] Later on in Ms Drysdale's evidence she said that there were no times placed on the employees roster of meal breaks, "because that's not in the award. Casual staff do not have to have set meal breaks." [44] Ms Drysdale said she had never received complaints from employees about being denied breaks; the duration of the break; or what they could do in their break. [45] Ms Drysdale also stated that it was possible for employees who worked in excess of five hours to have 40 minutes of breaks - "they would have up to half an hour to have something to eat and then at least, depending on whether they were a smoker or not,... they would at least have two lots of 10-minute breaks." STATUTORY DECLARATION [46] The Commission was supplied with the statutory declaration signed by Vivienne Joyce Ferris (T10868). [47] Among other things, she stated in her declaration, "we had meal breaks whenever we wanted, we took breaks whenever we were able to, which was often." UNSWORN STATEMENT [48] Another former employee, Warner John Barrie (T10863), who was unable to attend the hearing as he now resides in Queensland, stated in an un-sworn statement that he was "paid the award rate and received all my entitled breaks". OTHERS [49] Mrs Lovett tendered an Exhibit R3, being an un-sworn statement, addressed to Workplace Standards Tasmania, where in a number of employees signed a statement, which, among other things, stated: "that during our employment as above we received and took all meals, rest and other breaks to which we were entitled." [50] Excluding those persons who gave direct evidence to the Commission, this statement included the names of: Francis Goss (T10869); Jacqueline Nattey (T10875) and Susan James (T10871). [51] The other 5 persons in respect to whom there is an application before the Commission, did not give evidence. They were: Cassie Duffin (T10867); Andrew Jones (T10872); Michael Karydis (T10873); Jason Lovell (T10874); and Brigitte Westmann (T10878). However, I reiterate that in respect to Andrew Jones and Michael Karydis, the applicant makes no claim for breach of award in respect to their meal periods. RESPONDENT'S SUBMISSION [52] Mrs Lovett contended that the question was "whether there is any evidence from which the Commission could be satisfied in the circumstances that the employer did provide to the employee rest periods and meal breaks and that the employees took those meal breaks and took those rest periods". [53] It was Mrs Lovett's submission that "whilst a number of witnesses attended before the Commission today to give evidence to the effect that they had taken meal breaks rest periods, that none of them were able to indicate at exactly what time they took them, exactly the length of those meal breaks and exactly the number of meal breaks or rest periods a took in any one-day; in short, ....there is no documentary proof of those facts." [54] She said the employees giving evidence established: 1. the employer afforded them meal breaks and rest periods; 2. they received more than their entitlement in breaks; 3. had never complained about not receiving a meal breaks. [55] In respect of those people who didn't attend the Commission to give evidence, it was the view of Mrs Lovett that it would be reasonable for the Commission to draw the inference, that those people also received the meal breaks. [56] Mrs Lovett submitted the employees held their former employer in very significant regard. She said, in addition to providing meal breaks and rest breaks the employer also provided meals without charge. This, she said, was another indication of the preparedness of the respondents to accommodate the needs and well being of the employees. APPLICANT'S SUBMISSION [57] Mr Williams said the matter for the Commission to determine was whether or not employees had their meal periods as set out in the award. [58] He said, where a person worked in excess of six hours and a meal period had not been granted, then the claim includes the calculation prescribed in the award. [59] He presented a submission on what he believed to be the proper understanding of Clause 23 - Meal and Rest Periods, contained in the award. [60] In respect to the evidence, Mr Williams said that the Commission had heard a lot about rest periods but little about meal periods. [61] In respect to other aspects of the evidence, Mr Williams reminded the Commission that it had only heard evidence from some employees and was his submission that, in relation to those who did not give evidence, the evidence of the records produced by the employer as being a true record of the hours worked, should stand. [62] Mr Williams went on to draw attention to the evidence of Ms Drysdale, who on occasions prepared the roster. He said that she stated that no provision was made for meal breaks on the roster - at no stage did she state (a) the period of the meal break or (b) the award requirement to provide a meal break, was granted by the respondents. In fact, he said, she went on to say casual staff do not have meal breaks, it is not in the award. [63] The applicant, he said, has no dispute with the respondents in relation to the rest periods prescribed by sub Clause 23(b) of the award. [64] It was the submission of Mr Williams that the award provision states each employee should be granted a meal period and that can only granted by the employer. It was not open to employees to grant themselves meal periods. FINDING [65] Regulation 25(1) of the Industrial Relations Regulations 1993 requires that a record made by an employer under section 75(1) of the Act is to contain certain information. One requirement states the employer is to record: "(f) the number of hours worked by each employee during each day and week and the times during each of those periods at which each employee started and ceased work;" [66] Clause 36(a) of the award requires, among other things, the employer to record:
[67] Determining this preliminary issue has been made all the more difficult because the records required to be kept were incomplete. This matter is a good example of the need to keep accurate time of wages records for the purpose of, not only recording that employees have received their lawful entitlements, but also to protect the employer's interests. [68] Clause 23 of the award reads as follows:
[69] I have no doubt the employer provided the employees with rest periods and on a number of occasions, very generously, provided food and drinks to them free of charge. Therefore, I am satisfied the employees subject to these applications had their rest periods as prescribed by Clause 23 (b) of the award and the applicant did not contest this. [70] I now turn my attention to the issue in dispute, that is, did the employees in question receive meal periods as required by Clause 23(a) of the award. [71] There is no requirement to make any determination on this issue in respect to Wendy Hiller, Andrew Jones, Michael Karydis, and Susan Pettman, as the applicant makes no claim for breach of award in respect to their meal periods. [72] Simply stated Clause 23(a) requires each employee to be provided with a 30-minute meal period. The time for taking that meal period must be after the completion of one hours' service and before the expiration of six hours' service. If a 30-minute meal period is not granted in that time, then a penalty rate applies until the employee is released for a meal or the end of the shift. [73] If, for example, an employee worked a four-hour shift, they could be granted their 30-minute meal period at the end of the shift. There would be no breach of the award provision as the 30-minute meal period would be after one and before the completion of six hours' service. In that situation I would expect that most employees would prefer to go home rather than stay at work for another 30 minutes. [74] On the other hand, if an employee was required to worked a seven-hour shift and they were not granted a 30-minute meal period [as apposed to a rest period(s)] after one and before the completion of six hours' service, then that person would be entitled to a penalty payment in accordance with the proviso contained in subclause 23(a)(1). [75] Therefore, in deciding this issue, I am required to establish whether or not employees, on each occasion they were required to work more than a six-hour shift, were granted a 30-minute meal period after one and before the completion of six hours' service. [76] The award provision deals with two distinct and separate issues, namely meal periods and rest periods. Significantly, the evidence adduced from the witnesses during the course of this hearing, along with other documentary evidence, did not make that distinction nor did it establish an understanding of the difference between a rest period and a meal period as prescribed in the award or for that matter, who was eligible to be granted a meal period and when any penalty payment might fall due if the meal period was not granted. [77] As a consequence, the evidence was less than precise with reference being made to such things as "breaks", "meal break", "cup of coffee and a cigarette break", "smoke break", "tea break", "breakfast", "lunch break", "morning tea break", "break after lunch". [78] The evidence was of such a general nature that it is not possible for me to establish, with any certainty, that those employees who worked a shift exceeding six hours were granted a meal period of not less than 30 minutes. [79] It is not sufficient to say that, just because some or all the employees had a break(s) during which they may have consumed food that it was a meal period as prescribed by Clause 23 (a) of the award. [80] For the above reasons, this preliminary issue is decided in favour of the applicant. Therefore, it must follow that the Commission is not prepared to exclude the amount claimed in those applications for a penalty payment in lieu of a meal period prescribed by the award and I so order. [81] These applications will be relisted for hearing on Thursday, 2 October 2003 at which time the Commission will take further submissions and evidence in respect to the remaining issues.
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