T13094
TASMANIAN INDUSTRIAL COMMISSIONIndustrial Relations Act 1984
and Crossroads Civil Contracting Pty Ltd
[2] Mr White for and on behalf of the CFMEU, represented Mr James Ernest Tasman Brooks. Mr Brady entered an appearance on behalf of the respondent. [3] Mr White informed the Commission that Mr Brooks was employed as a plant operator from 28 October 2003 until he terminated his employment on or about July 2008. On 26 October 2005 he signed an Australian Workplace Agreement (AWA), a Federal instrument. The matters in dispute concern alleged award breaches from the commencement of Mr Brooks’ employment up to the date his employment conditions were covered by the AWA. [4] Mr Brooks was initially employed on a casual basis and was made a full-time employee after approximately one month. He worked in the “asphalt” section of the operation and later transferred to the “concrete” section. [5] It was agreed by the parties that the Building and Construction Industry Award was the appropriate industrial instrument at the time in question. The award breaches alleged by the CFMEU relate to the following clauses: • Clause 08: Employment Categories [6] From 28 October 2003 until the last week in November 2003 Mr Brooks was engaged as a casual employee. Beyond this date he was engaged on a permanent full-time basis. Mr Johns, Mr Brooks’ original supervisor, left the employ of the respondent around January 2005. Mr Brooks allegedly resigned from his job by text message to Mr Stacey, the business owner, on the weekend of 19 March 2005. Subsequently he requested and was granted a transfer to the “concrete” crew and presumably withdrew his resignation. [7] Mr Brooks gave evidence that, after a visit to the respondent by Mr White on or about 20 April 2005, he and his co-workers began receiving their award entitlements. On 30 October 2006 Mr Brooks suffered a workplace injury and was in receipt of workers’ compensation benefits until he resigned in July 2008. BACKGROUND [8] While giving his evidence Mr Brooks continually referred to his statement (Exhibit A6). This statement was a compilation of his recollection of events and data supplied by the respondent, through Mr White, together with information from the Department of Meteorology and information from Mr Brooks’ mother’s diary. He also relied on a statement from Mr Colin Johns (Exhibit A2) as well as evidence given in two other matters. These matters were T12268 of 2005, CFMEU v Crossroads Civil Contracting Pty Ltd1, before Abey C (T12268) and T12546 of 2006, CFMEU v Crossroads Civil Contracting Pty Ltd2, before Shelley DP (T12546) relating to issues similar to those being pursued in the instant matter. Pay Records [9] Mr White asserted he had made numerous applications to the respondent for access to Mr Brooks’ pay and annual leave records with no success. This matter was first before the Commission in March 2008, at which time the CFMEU sought access to Mr Brooks’ wage records and while Mr Brooks was still an employee of the respondent. At the time Mr Brady undertook to provide the sought after records by “mid next week”. This apparently did not occur. [10] In correspondence to the Commission Mr White persistently complained of the respondent’s reluctance to provide appropriate records. [11] Mr Brooks gave evidence that, up until about the time the AWA came into force his wage notification was fashioned from a small blank piece of paper with only his net wage handwritten on it. He later elaborated on this and said the note showed both gross and net wages, but presented no other information. [12] In evidence, in the matter T12546 covering a similar timeframe, Mr Bailey (the then applicant) gave evidence that his pay record was “a piece of paper with a figure written on it.” [13] It appears the wage records in both instances would not have complied with the requirements of Clause 75 of the Act - Records of Employment and Advice of Pay Details. [14] Mr Brooks gave evidence that he was not aware at that time what his wage rate was. He said he had asked Mr Johns to keep a record of his pay and that those records, as far as he knew, were in the possession of the respondent. Mr Brooks stated under examination-in-chief by Mr White: “When you made mention of Colin’s records – back to Crossroads and you’ve mentioned something about computer and docket books, what records do you understand went back to Crossroads? --- His books, which I say his books is everything recorded on the day, the week, the month, you know, pays, locations, hot mix, amounts, everything, absolutely everything is in there, who worked there, their specific hours, yes.” (Transcript p.137, L.10) [15] Mr White referred to the earlier matter T12546, where he had obtained Mr Johns’ docket books from the respondent to extract similar workplace data to that which he sought for Mr Brooks. In that matter, the decision at paragraph [7] states: “The union made calculations based upon those docket books, which were in the union’s possession for a brief period of time in relation to Mr Johns’ case, following which they were returned to Crossroads.” [16] Further at paragraph [51] it was stated by Mr Brooks that: “Mr Johns said that Mr Dale Stacey would have possession of the docket books now, because they “went back to Crossroads”. [17] Mr Brooks said in evidence that it was Mr Johns’ practice to record his and the rest of the crew’s hours in the docket book on a daily basis. [18] Mr Johns, in evidence in T12268, confirmed he passed on to Mr Stacey the hours the asphalt team members worked each day on a weekly basis. The data was in the form of a computerised spreadsheet, which Mr Johns produced from the employee’s daily log of hours. [19] In Exhibit A21 (at PN1834 of Transcript in matter T12268) when questioned about employee wages Mr Johns replied: “I didn’t do pays, I did hours.” [20] In his statement during matter T12546, at paragraph [46] of the decision, with reference to his knowledge of how the employees were paid, Mr Johns stated: “… I don’t know whether Dale paid the men overtime or whether he paid them when they had days off. When he sent them home at lunch time because it was raining or because we had no work, whether they got paid for the rest of the day … I could only tell Dale how many actual hours they worked that week.” [21] And further, with reference to another employee the subject of the above matter, Mr Johns said: “I don’t know … whether he was paid overtime, or holiday pay either, or sick pay. I controlled the record of hours, that’s all I controlled.” [22] This statement was contradicted by Mr Stacey’s evidence in Exhibit A21 (matter T12268 at PN2034) where he said that Mr Johns gave him the dollar amount to pay each employee. Further in his statement (Exhibit A2) with reference to banking of hours, Mr Johns contradicted himself in that he had before denied knowledge of the employees’ conditions yet in the last paragraph, he states: “… they wanted this “Banking of Hours” arrangement so they could receive a reasonable wage during unpaid downtime, such as inclement weather and annual leave.” [23] Mr White pointed out the discrepancies in Exhibits A13 and R4, the same time sheet 3455 for week ending 31 August 2005, in that a notation had been added allegedly after the timesheet had been submitted, as an indication that Mr Brooks had sought the day off. Similarly, with Exhibits A14 and R3, timesheet 3465 for 9 November 2005, it showed an added notation after the word “rain” of “option signed off”. The latter timesheet was generated after the introduction of the AWA. [24] Mr Brooks confirmed the notation on both time sheets was not in his handwriting. Banking of Hours [25] Mr Brooks said that when he realised he was not getting paid for annual leave or public holidays, nor receiving penalty rates for overtime, nor receiving payment for being stood down because of inclement weather, he had asked Mr Johns to bank a portion of the hours he worked each week to be redeemed later to supplement any short pay weeks. [26] Mr Johns in his statement (Exhibit A2) supports Mr Brooks’ evidence on the process of banking hours. Mr Johns stated: “Members of the asphalt crew including Jamie Brooks arranged for me to “bank hours” for them. [27] And further: “The employer would hold unpaid wages and pay them out at a later date. This arrangement was entered into by consultation with Dale Stacey.” [28] Mr John’s statement is consistent, in the main, with evidenced given at the previous hearings. Mr Brady did not specifically refute this evidence. [29] In Exhibit A21 (T12268, at PN1832) Mr Johns, in response to a question regarding the banking of hours, said: “ … Dale and myself had discussed … they leave 8.5 hours in the bank if it’s raining or long weekends, or whatever … ” Alleged Award Breaches [30] In his submission, Mr White asserted that as from 20 April 2005 the respondent did pay employees according to the award: “From then or very soon after that date, I think, Jamie will say that his wage rate increased to, I believe, $18 an hour and then – not just Jamie, but the other employees, to my knowledge, received their award entitlements.” (Transcript p.142, L.30) [31] However, a portion of Mr Brooks’ claim relates to alleged award breaches for the time after 20 April 2005 until the AWA came into force. • Clause 08: Employment Categories [32] Mr White alleged that while Mr Brooks was engaged as a casual employee he was paid a loading of 20% on his hourly rate. Mr White argued that the award prescribed a 25% loading. • Clause 16: Inclement Weather [33] Mr Brooks stated in his evidence that when the weather was inclement the practice was: he would receive a phone call from Mr Johns about half an hour before he would normally leave home for work to be told not to come in to work that day, or whatever other arrangements may have been put in place. He confirmed that he did not get paid for such days and often used his bank of hours to make up his wages. [34] Mr White noted that Clause 16 of the AWA now on foot, introduced stand downs during inclement weather and incorporated similar arrangements to those described by Mr Brooks for accruing and redeeming banked hours to supplement loss of wages. [35] The statement from Mr Johns in Exhibit A2 supports Mr Brooks’ description of the process of standing down employees on days of inclement weather. [36] Mr Stacey, in his evidence in matter T12268, confirmed Mr Johns’ evidence regarding stand downs. At p.174, L.25–45 and p.175, L.5 of transcript, Mr White presented the following: “MR WHITE: And mentions if it’s raining - this is how the blokes got paid if it was raining … at PN2648 … It’s Dale John Stacey, the employer, being cross-examined by myself: I’m pretty sure you said that during that three months, when you really struggled, that Colin stood a lot of his workers down? Answer: yes. At 2650: … The answer: Colin would always have at least one or two of his fellows with him, not always 100 per cent, but generally he wouldn’t stand the whole team down. We would leave a couple down and he would change them around the next week so people were still getting money. At PN2654: “… whether it is hot, when the weather is good, when there’s plenty of work and when there’s no work. Now, we just found alternative work for Colin and most of his crew. It was a bit of a change with the men. Sometimes half of them would have it off and sometimes he’d change the crew so that everyone could be kept fed.” [37] Mr White adduced data from the Bureau of Meteorology (Exhibit A7) showing rainfall over a number of days in the areas where Mr Brooks would have been working. He matched those dates with dates where Mr Brooks said he was told not to work and for which he said he was not paid. Although, in numerous instances, the information provided from the respondent’s payroll summaries (Exhibit A3) noted Mr Brooks had sought to take annual leave or leave of absence on those days. The summaries also indicated he was paid for those days. There is no evidence as to an alternative source of the payment, such as banked hours. • Clause 19: Superannuation [38] Mr White proposed that should the outcome of this matter be in Mr Brooks’ favour he would be entitled to a superannuation payment on any unpaid monies. Mr Brady did not argue against the proposition. • Clause 25: Meal Allowance [39] Mr White argued that Mr Brooks was entitled to be paid a meal allowance for every occasion where it could be shown that he worked in excess of one and one half hours overtime, as prescribed in Clause 25(a) of the award. • Clause 27: Hours of Work [40] Mr White argued that Mr Brooks had been paid a consistent flat rate for the hours he worked. Exhibits A8 and A9 show 40 hours ordinary time per week. However, the summary sheets in Exhibit A3 show Mr Brooks to have been paid for 7.6 hours ordinary time and at least 0.4 hours overtime almost every weekday he worked. [41] Mr White sought to draw a parallel between Mr Brooks’ situation and that of Mr Bailey in matter T12546. Further he argued that Exhibit A12, which was Mr Stacey’s letter of support for Mr Brooks’ loan application, confirmed Mr Brooks’ assertion that he was paid a flat hourly rate. • Clause 29: Overtime and Special time [42] Mr White alleged that Mr Brooks, on at least one occasion, did not receive the required 10-hour break between finishing work and the start of work the following day. The breach apparently occurred over 9 and 10 December 2003. He cited evidence given by Mr Johns in T12268 that there was a common practice of working late into the evening. Exhibit A21, at PN1868 of transcript, where Mr Johns said in evidence: “… when we were up at Trevallyn there was an agreement done between Dale and the council up there that we did that up there from 6 o’clock at night until 11 o’clock at night every night until it was done … ” [43] It was stated the normal starting time was between 7.00am and 7.30am. [44] Mr Brady proposed Mr Brooks was indeed paid overtime prior to the AWA coming in to force. Mr Brooks replied: “Not very much; rare.” (Transcript p.90, L.45) • Clause 31: Weekend Work [45] Mr White cited examples of when Mr Brooks had worked on weekends for less than the minimum 4 hours prescribed in the award. Mr Brooks confirmed that this practice occurred. Mr Brooks also confirmed that, on occasions, he was asked to work on weekends and given a weekday off in lieu. This was denoted in the records as the “crew agreeing to” work on a weekend to have a weekday off instead. • Clause 32: Annual Leave [46] Mr Brooks stated that prior to 20 April 2005 he did not receive payment for annual leave. He said he used his banked hours to draw payment for such leave. [47] Mr White argued that Exhibit R11, Mr Brooks’ final payout summary, was not accurate and should be disregarded. The document lists the days where the respondent asserted Mr Brooks took annual leave. Mr White highlighted dates which were shown as having been taken as leave, but are not reflected in Exhibit A9 - Pay advices. Also he noted that 14, 28 and 29 June 2005 were shown as annual leave in Exhibit A3 and attracted travel time, but were not listed in Exhibit R11. • Clause 33: Personal Leave [48] Mr Brooks stated that prior to 20 April 2005 he did not receive payment for any sick leave. On a number of occasions the records, as provided, showed “leave of absence” for days Mr Brooks said he did not receive payment. Mr Brooks said he was instructed not to work on those days. [49] Mr Brooks insisted throughout that he was always available for work and would not choose to take time off unless absolutely necessary. He gave the example of 10, 11, 12 May 2004 and 11 June 2004 where he did seek time off for personal matters. It should be noted that Mr Brooks said he did not redeem banked hours for these days, unlike other days when his absence was allegedly at the instigation of his employer and where he claimed to have drawn down on banked hours to effect payment. [50] Mr White agreed that Mr Brooks did request time off without pay for 10, 11 and 12 May 2004. However he argued that the prevailing practice, therefore the expectation, was that the individuals did not get paid for “leave” however it was expressed, so it would have been futile to ask for “annual leave”. • Clause 36: Public Holidays and Holiday Work [51] Mr Brooks stated that prior to 20 April 2005 he did not receive payment for public holidays. He confirmed a number of examples of public holidays where he said he did not receive payment and others where he said he redeemed hours from his bank of hours. [52] Mr Brooks said he received $320.00 from his bank of hours during the Christmas/New Year holiday period 2003/4. The payment is reflected in the data provided in Exhibit A3. Mr White said there were no wage records available for that period. • Clause 45: Fares and Travel Patterns Allowance [53] Mr Brooks confirmed that he normally started and finished work, initially at Colin Johns’ home, and latterly at the respondent’s depot. He further confirmed that Mr Johns had never requested he start work on site. He also stated that he was never paid travelling allowance. [54] Mr White argued that Mr Brooks had not claimed travel allowance in this application because he started and finished his day’s work at a designated location. In this scenario, Mr White argued that effectively this meant Mr Brooks was being paid the hours of work for the duration of his entire engagement each day. PAY RECORDS [55] Mr Brady insisted that the requested records had been released to the CFMEU in the form of payroll summaries: he stated: “ … The payroll summaries, we say that it shows how accurate the payroll summaries are, that there are some deficiencies which we’ve never disputed.” (Transcript p.184, L.30) [56] Further: “The rest of the records that Mr White were after were actually at the accountant’s. At a period in time, the manual records were transferred on to the computer system … we say this explains why there’s a few typo errors. It would also explain why there may well be the odd figure that doesn’t totally add up.” (Transcript p.184, L.40) [57] And: “But we say the record is the record. So we would say that it can’t be disputed that – that the record was not just made up. The record was not made up for this case, because if it was made up for this case, it would’ve been absolutely 100 per cent accurate. So I think by showing it had some flaws in it proves that it is a true record.” (Transcript p.185, L.1) [58] Mr Brady informed the Commission that the payroll summaries in Exhibit A3 were a true account of the monies paid to Mr Brooks. He further stated that the records upon which Mr Brooks had relied to manage his bank of hours were never returned to the respondent by Mr Johns: “Jamie, I can tell you without a doubt that Colin Johns has not returned those computer records to Crossroads.” (Transcript p.78, L.5) [59] Mr Brooks said that he understood the docket books kept by Mr Johns to be now with the respondent. Mr Brady did not address the whereabouts of Mr Johns’ docket books. [60] Mr Brooks acknowledged, under examination by Mr White, that the computer records were Mr Johns’ private property and that they had been “lost”. “Did you try to get the computer records from Colin Johns? --- Yes, I did. Successfully or unsuccessfully? --- Unsuccessfully, because his computer crashed and he lost all the records.” (Transcript p.137, L.25) BANKING OF HOURS [61] Mr Brady claimed that once Mr Johns left the business the banking of hours ceased. Mr Brooks responded that this position was not true and argued that: “It was common practice. That’s why it was incorporated in the AWA.” (Transcript p.116, L.30) However, Mr Brooks further stated that the practice of banking hours: “slowly faded out until the AWA came in.” (Transcript p.116, L.40) [62] Mr Brady raised the issue that Mr Brooks had at no time put “banked hours” on the time sheet. Mr Brooks responded that it was the supervisor’s role to annotate the timesheet, not his. (Transcript p.85, L.1) However, even when “annual leave” or a “day off” appears on the hand-written time sheets, and there was indication that that time was paid, there was still no identification of “banked hours” being cashed in. It was Mr Brooks’ practice to only record his start and finish times on the time sheet. [63] Mr Brady stated that had Mr Brooks redeemed banked hours such an occurrence would have been noted on the time sheet. He further claimed that the absence of such notation confirmed that Mr Brooks was paid by the respondent for the days when he was stood down because of inclement weather, public holidays and annual leave. [64] When asked how he knew how many banked hours he had in his bank at any one time, he replied: “I wouldn’t. We’d just ask, “If I’ve got any banked hours left, could you pay us banked hours”.” (Transcript p.85, L.40) [65] Mr Brady informed the Commission that by Christmas 2004 all of Mr Brooks’ banked hours had been taken or paid-out, therefore there was nothing to accumulate in 2005. [66] Mr Brady stated, with reference to Exhibit A3: “… the banked hours coming in and the cash going out on these payroll summaries balance …” (Transcript p.88, L.1) Mr Brady reiterated that holidays, wet days and public holidays were all paid to Mr Brooks as entitlements, not from banked hours. [67] Mr Brady argued that Mr Brooks could provide no evidence of the banked hours he allegedly accumulated or those he said were redeemed for inclement weather or annual leave. This was acknowledged by Mr Brooks. ALLEGED AWARD BREACHES • Clause 08: Employment Categories [68] Mr Brady acknowledged that Mr Brooks was a full-time employee for all but the first month of his tenure with the respondent. • Clause 16: Inclement Weather [69] Mr Brooks, by his own admission, was a highly skilled operator. Mr Brady argued that as such Mr Brooks saw working in the depot on wet days as mundane and sought leave of absence or annual leave as an alternative when, through inclement weather, he was assigned there. [70] Mr Brady stated that work was always available to Mr Brooks during episodes of inclement weather and it was his choice not to work. An example was given where the time sheet 3455 (Exhibit A13) for week ending 31 August 2005 indicated Mr Brooks had only worked 1½ hours but was paid for eight hours at ordinary time and 1½ hours at time and a half. [71] On this particular day it rained and work was allegedly offered to Mr Brooks in the depot. The time sheet was annotated “Shed Day Off”. Mr Brady argued that Mr Brooks did not want to work in the depot and left after 1½ hours and took a day’s leave. [72] Mr Brooks refuted this claim by Mr Brady, saying that he was told to leave after 1½ hours and the eight-hour payment was from his bank of hours. Neither explained why overtime was paid. [73] Mr Brady sought an explanation of annotations on timesheet 3465 (Exhibit R3). Written on the timesheet for 9 October 2005 was “Rain option signed off”. Mr Brooks said that the annotation was not his hand writing and would have been written on the timesheet after he had submitted it to his supervisor. Mr Brady did not challenge this response. [74] Mr Brooks said the process for submitting timesheets was that on each Wednesday he would sign the timesheet for the week just completed and submit it to the supervisor. He did not tally up hours or designate overtime, his signature was a confirmation of the start and finishing times only. [75] Mr Brady challenged Mr Brooks: “Yes, you’re making that claim, Jamie, and you’ve got no idea what you’re talking about, as usual. I put it to you that you were never stood down during the winter months with Colin’s crew?” (Transcript p.P99, L.35) [76] Mr Brady’s proposition is in contradiction to evidence from Mr Johns and Mr Stacey in the other matters, as well as Mr Brooks’ evidence. • Clause 19: Superannuation [77] Mr Brady acknowledged that should the applicant be successful the respondent would comply with the requirements of the award. • Clause 25: Meal Allowance [78] Mr Brady said it was the respondent’s practice to provide a meal when overtime was worked. • Clause 27: Hours of Work [79] Mr Brady argued that Mr Brooks’ claim for payment for 19, 22 and 23 December 2003 should be disregarded. He argued that Mr Brooks could not substantiate that he had worked on these days. [80] Mr Brooks agreed that he could not substantiate this claim. • Clause 29: Overtime and Special time [81] The weekly time sheet (Exhibit R4) showed that on 20 August 2005 Mr Brooks was credited with 1.5 hours overtime. Mr Brady asserted that this showed Mr Brooks did receive overtime payments. [82] Mr Brooks responded: “Sometimes we did get paid overtime – sometimes; not all the time, sometimes. It was to the discretion of Mr Stacey.” (Transcript p.88, L.25) [83] Mr Brady argued that Mr Brooks’ claim that he did not get the required 10-hour break between shifts on the 9 and 10 December 2003 could not be substantiated and that it should be disregarded. • Clause 31: Weekend Work [84] Mr Brady asserted that on Sunday, 14 December 2003 Mr Brooks had only worked 2½ hours because he was suffering from a hangover and chose to leave work after a short time. [85] Mr Brooks denied the assertion and stated that he had been sent home after that time. [86] Mr Brady argued throughout that Mr Brooks sought both days off and to exchange weekday work for weekend work so he could work on “his farm”. He suggested to Mr Brooks: “… you needed to do at least a day-a–week’s work on your farm?”. Mr Brooks denied this and stated that his property was a “vacant block”, not in any way a farm. (Transcript p.122, L.30) • Clause 32: Annual Leave [87] Mr Brady argued that Mr Brooks would not have been entitled to holiday pay over the 2003 Christmas period because he had only been a permanent employee with the respondent for less than two months. [88] Mr Brady challenged Mr Brooks that he had used all his banked hours during the Christmas break in 2004: “I say you got all your banked hours paid out to you at that Christmas shutdown, December 2004? --- I can’t remember if it was all my banked hours, but I’m pretty sure it was. I took a fair lump for that period.” (Transcript p.117, L.15) [89] Mr Brady also argued that it had been demonstrated that the respondent had paid Mr Brooks in full his accrued entitlement to annual leave on resignation and any claims for such payment should be dismissed. • Clause 33: Personal Leave [90] Mr Brady referred the Commission to timesheet 4300 (Exhibit R7) dated 28 July 2006 in which Mr Brooks sought not to be paid for a “sick day”. Although under the AWA conditions Mr Brady made the point that Mr Brooks was happy to go without pay which, he said, was a common occurrence. [91] Mr Brooks argued that the terms of the AWA allows for “saving” his sick days up and to cash them in at the end of the year. • Clause 36: Public Holidays and Holiday Work [92] Mr Brady asserted that the payment of $320.00 over the Christmas period 2003-4 was payment for the three public holidays. • Clause 45: Fares and Travel Patterns Allowance [93] Mr Brady argued that Mr Brooks worked outside a radius of 30km on numerous occasions and, on his reading of the award, such travelling time should be paid at ordinary rates not overtime rates. However, he made no mention of paying travel allowance. Mr Brooks Credibility [94] Mr Brady sought to challenge Mr Brooks’ credibility across a range of instances. [95] He asserted Mr Brooks had sent an SMS message to Mr Stacey while working at Queenstown during the weekend of 19 March 2005 saying “I quit”. Mr Brooks initially denied this emphatically; however, under cross-examination: “Mr Brady: So I put it to you, you simply sent a text message to Mr Stacey that said, “I quit.”? --- Oh, well, basically, yes, but what I said to him – he said, “Perhaps we need to talk?” (Transcript p.111, L.40) [96] Mr Brady asserted that the pay records showed Mr Brooks had worked a week’s notice, during which time he had asked Mr Stacey to reconsider his resignation. Mr Brooks said that he did not work a week’s notice, but had the week off. Mr Brady pointed out that this was in contradiction to Mr Brooks’ stated position of only taking time off when absolutely necessary. “And you worked out that week within the asphalt crew, didn’t you? --- No, I didn’t. I had that week off.” (Transcript p.112, L.10) [97] Mr Brady said Mr Stacey had gone out of his way to assist Mr Brooks in many different ways. He said Mr Stacey had transferred Mr Brooks from the asphalt division on request, he had given Mr Brooks a reference when he sought a loan and he had paid for Mr Brooks’ car repairs when Mr Brooks did not have the funds available. Mr Brooks acknowledged Mr Stacey’s actions. [98] Mr Brooks agreed that he had given Mr Stacey a gift of wine each Christmas. However, he said he had done so to keep his job. There was no evidence educed that Mr Brooks’ job was at any time in danger. [99] Mr Brady made the point that Mr Brooks had been a contented worker until his workplace injury on 30 October 2006. At this point, Mr Brady asserted, Mr Brooks sought to cause Mr Stacey and the respondent as much stress as possible. Mr Brooks denied this, but did agree that he had some four matters before the Office of the Anti-Discrimination Commissioner as well having taken several issues to other jurisdictions. [100] Mr Brooks agreed that his claim to the Workplace Ombudsman alleging pressure from Mr Stacey to sign the AWA was dismissed through lack of evidence. [101] Mr Brooks had sought copies of Group Certificates from the Australian Taxation Office (ATO) covering the three years he had worked for the respondent. He complained to the ATO that he could not get copies of the certificates from the respondent. He had in fact lost the original certificates issued to him by the respondent. He also admitted that he did not raise the issue of the missing group certificates with the respondent. [102] Under cross-examination Mr Brooks was asked: “You’ve never raised the issue of your groups certificates with Crossroads, have you? --- No.” (Transcript p.110, L.25) [103] Mr Brooks made a complaint to Workplace Standards Tasmania alleging he was not receiving his workers’ compensation benefits on time. The respondent addressed the allegations in a letter to Workplace Standards Tasmania in February 2008 (Exhibit R6). No further action was taken. [104] Mr Brooks was given a final warning for refusing to follow a direction set out in his return to work program. He later apologised to Mr Stacey, in his words “… for the misunderstanding.” (Transcript p.98, L.45) [105] The CFMEU had sought payment for Mr Brooks working on a Good Friday, an activity which the respondent argued never occurred. [106] To this end Mr Brady produced a signed statement from a number of the respondent’s employees categorically denying ever having been asked to work on any Good Friday. (Exhibit R8) [107] Mr White asserted that all the claims made were fashioned from the records provided by the respondent. He said he had relied on the dates and times supplied by the respondent to be correct, obviously they were not. [108] Mr Brady argued that on his resignation Mr Brooks had complained to Mr White that his holiday pay had not been banked as claimed by the respondent. Following investigations by Mr White the monies had been paid into Mr Brooks’ bank account in the timeframe stated by the respondent. [109] Mr Brady, in response to a question from the Commission, stated: “THE COMMISSIONER: That at all times while he was a permanent employee, Mr Brooks was entitled to and paid annual leave, sick leave, and public holidays? MR BRADY: Yes, sir, … … MR BRADY: The annual leave and everything went from the beginning of employment.” (Transcript p.132, L.35-40) SUMMARY OF THE CLOSING SUBMISSIONS [110] Mr Brady argued that Mr Brooks had no foundation for his claims, nor did he discharge the onus of proof required to support and verify such claims. It was Mr Brady’s observation that only after Mr Brooks had sustained a workplace injury did he make claims against the respondent in a number of different jurisdictions. He further noted that none of the claims hade been proven, to date. [111] Mr Brady claimed that Mr Brooks knowingly changed his terminology regarding time off. He gave the example of Exhibit R5 where Mr Brooks confirmed to the Workplace Ombudsman that he was given “holiday money”, yet for the same incident he described the payment to this Commission as “banked hours”. [112] Mr Brady indicated to the Commission that little weight should be given to Mr Johns statement in light of the fact that he was an aggrieved ex-employee and as such his statement would be supportive of Mr Brooks’ claims. [113] Mr Stacey, in his evidence on transcript in previous matters, refers to “Colin’s crew”. Mr Brady argued that Mr Johns’ crew was made up of those whom he had recruited from Tarmac; Mr Brooks was not one of the Tarmac recruits and therefore Mr Stacey’s responses did not refer to him. He directed the Commission to the fact that Mr Bailey, who was the subject of a previous matter and whose employment conditions have been compared to Mr Brooks, was hired on a casual basis and as such has no relevance to the instant matter. [114] Mr White said that Mr Stacey’s statement regarding alternative work always being offered to Mr Brooks in the depot when the weather was inclement was in contradiction to Mr Johns’ statement. In that statement he said only “a day or two days” was offered each week. [115] Mr Brooks’ reference to “holiday money” in the statement from the Workplace Ombudsman, said Mr White, was Mr Brooks’ terminology for the banked hours he had accumulated to cover holidays and other days for which he was not paid. [116] Mr White further indicated that Mr Stacey’s statement, Exhibit R15, contradicted his evidence in matter T12268. In the last paragraph of Exhibit R15, Mr Stacey made the statement that time was exclusively recorded on time sheets and paid on the information presented. However, in T12268 he said he was given the amounts to pay by Mr Johns during his tenure. [117] With reference to the timesheets in which the respondent claims shows Mr Brooks to have been paid for the public holidays over the Christmas period of 2003, Mr White posed the question: Why would an employer pay for these days yet not for the other public holidays throughout 2004? He did not receive a response. [118] Mr Brady accepted that there were obvious errors in the respondent’s documentation and he conceded the respondent is liable for those payments. (Transcript p.184, L.35) He confirmed acceptance of the following instances: • 7.6 hours at ordinary time for: 3/12/03, 23/04/04, 18/06/04, 24/06/04, 25/06/04 and 10/09/04. • Public holiday payment for: 26/01/04, 8/03/04. FINDINGS [119] From a statement by Mr White, which was not challenged, it appears that on or about 20 April 2005 there was a watershed in the respondent’s employment practices. Mr White stated that after that date the employees, particularly Mr Brooks, enjoyed the appropriate award conditions. (Transcript p.23-29) Despite Mr White’s assertion and Mr Brooks’ confirmation of the improved conditions, Mr Brooks still alleged a number of award breaches after 20 April 2005. EVIDENCE [120] There is a dearth of verifiable facts in this matter. On the one hand we are asked to rely on Mr Brooks’ evidence, much of which ensued from his Statement of Facts - Exhibit A6. It was admitted that this statement was developed from Mr Brooks’ memory and stimulated by data provided by the respondent to Mr White. Mr Brooks’ position, in part, is supported by an un-sworn statement from Mr Johns, who in turn is alleged to harbour some bias against the respondent. Mr Johns’ statement of course could not be effectively challenged by the respondent. [121] Mr Stacey, the owner of the business, was scheduled to give evidence however he failed to attend at the allotted time and made his apologies through Mr Brady. Apparently pressing business needs prevented his participation. Mr Stacey’s failure to attend the hearing and give evidence left the CFMEU at a disadvantage. It was evident from the rhetorical questions posed by Mr White that he expected Mr Stacey’s responses to his cross-examination to have verified the CFMEU’s position. Mr Stacey provided an un-sworn statement which again could not be effectively challenged. [122] The respondent did not provide any sworn evidence in support of its position. It was clear from the outset that the veracity of Exhibits A3, A8 and A9 would be challenged. A person in authority, from Crossroads Civil Contracting Pty Ltd, who could verify the various accounting processes and authenticity of the aforementioned exhibits, on oath, would have added much needed credibility to the respondent’s position. However such a person was not called upon to give evidence. [123] As I have alluded to above, against Mr Brady’s objections, the Commission has relied on sworn evidence given in other matters namely T12268 and T12546. I have restricted my reliance on the transcribed evidence to those aspects which have been educed in the instant matter and addressed in the previous matters; where evidence was introduced the opportunity for cross-examination was extended to both parties. [124] Mr Brady argued that matter T12456 was entirely different from the instant matter because Mr Bailey, the appellant in that matter, was a “casual” and by inference would not enjoy the award conditions to which Mr Brooks was entitled. [125] Firstly, both Mr Johns and Mr Stacey, effectively Mr Bailey’s managers in matter T12268, admitted knowing nothing about the applicable award. (Exhibit A21, PN1852 and PN2141) It follows that the intent of the term “casual” used by them could not be relied on to reflect the meaning or intent expressed in the award, unless by chance. Further in the findings in matter T12546, at paragraph [114]: “I find that Mr Bailey was neither engaged or paid as a casual employee and was not a casual under the terms of the award.” [126] Given that Mr Bailey and Mr Brooks worked in the same crew around the same time, it is not unreasonable to accept that the conditions, under which Mr Bailey worked, in principle, were not dissimilar to those applying to Mr Brooks. [127] Mr Brady said that Mr Brooks was not part of “Colin’s crew” and that Mr Stacey’s comments in previous matters did not apply to him. I reject this proposition. There was no evidence that Mr Brooks was treated any differently from the rest of the crew. [128] Mr Brady argued that if Mr Johns and Mr Bailey were so important to the CFMEU’s case they should have been called as witnesses. I accept that Mr Johns and Mr Bailey’s sworn evidence would have enhanced the CFMEU’s case. However, I do not see their absence as fatal given that reliance can be made on previously sworn evidence. EXHIBITS [129] Much of Mr Brady’s case relies on the veracity of the exhibits provided by the respondent. [130] From the commencement of this matter Mr White has argued that the respondent had not made available Mr Brooks’ actual pay records and that Mr Johns’ docket books contained the actual hours for which Mr Brooks was paid, up until the end of 2004. This data was said to have been transposed by Mr Johns onto spreadsheets and sent to Mr Stacey on a weekly basis. [131] Mr Brady stated specifically that the respondent was not in possession of the computerised records. He did not address the availability of the docket books. [132] From evidence, Mr White, in matter T12546, had access to the docket books which were in the possession of and provided by the respondent. [133] Mr Brady said that the information Mr White sought was “with the accountant”. This matter has been on foot since March 2008 and I find it difficult to accept that the “accountant” retained the original data continually for some nine months. [134] Exhibit A3, Weekly Payroll Summaries, is allegedly a compilation of Mr Brooks’ actual pay records. The inaccuracies are evident in such things as showing that Mr Brooks was paid overtime and travelling time while supposedly on holiday and continual inaccuracies in the dollar amount paid against the hours worked, both over and under payments are evident. This compilation also shows that Mr Brooks worked on a day which coincided with a Good Friday holiday, a situation the respondent took great pains to deride. The claim however, was made from the respondent’s own records. [135] Exhibit A3 encompasses the time from Mr Brooks commencing employment with the respondent until the end of May 2005. No reason was given as to why the summaries were not provided to include all weeks up to the introduction of the AWA. [136] Exhibit A8, a selection of handwritten Weekly Time Sheets, which encompasses work weeks from 3 August 2005 until 27 October 2005 and Exhibit A9, a selection of computer generated Weekly Pay Advices, which encompasses time from 7 July 2005 until 27 October 2005, appear to reflect the same data expressed in different terms. No reason was given by the respondent as to why all the pay advices for the duration of Mr Brooks’ tenure were not provided. It is unfortunate that the period of time covered by Exhibits A8 and A9 do not coincide with that of Exhibit A3 to enable the Commission to effect a cross check. [137] Exhibit A3 shows Mr Brooks being paid for a standard 7.6 hours per day, in the main, with 0.4 hours at overtime rates each weekday, conveniently adding up to 8 hours. Why, one must ask, was there a very regular fraction of an hour’s overtime worked most weekdays? [138] Exhibits A8 and A9 are reputed to represent pay records issued after 20 April 2005, when it was said employees commenced enjoying award conditions. These exhibits show Mr Brooks was paid a standard 8 hours at normal time per day effectively breaching the award. The award at Clause 27 - provides that “… the ordinary working hours shall be 38 per week”: equating to 7.6 hours per day. Further doubt must be cast upon the authenticity of these documents when overtime hours, in some cases, are recorded to the fourth decimal place. This is obviously an arithmetic manipulation in a document purported to truthfully reflect actual conditions. [139] Exhibit R11 is a summary of the annual leave allegedly taken by Mr Brooks. Mr White showed numerous inconsistencies between this document and the other “pay” documents provided by the respondent. The respondent did not rebut Mr White’s observations. [140] One must seriously question the reliability of the data provided by the respondent in the form of Exhibits A3, A8, A9, R1, R2, R3, R4, R7, R11, R13 and R14. In my view it was the responsibility of respondent to provide data on Mr Brooks’ time and wages in the manner prescribed in Clause 75 of the Act. It was also the respondent’s responsibility to ensure that the data provided was verifiable either by its obvious authenticity or by sworn evidence. The respondent provided neither. [141] The recourse open to the Commission is to follow the guidance of the authority Jones V Dunkel [1959] HCA 8; (1959) 101 CLR 298 (3 March 1959). This authority suggests that where a party fails to educe verifiable evidence which is available to it and which a reasonable person would expect they would indeed produce; it is reasonable to draw the inference that such evidence would not have been of assistance to the said party. [142] In the instant matter the aforementioned exhibits clearly contained errors, were incomplete and contradictory. I do not accede to Mr Brady’s proposition that the errors contained in the documents supported their veracity. Nor do I accede to his proposition that because Mr Brooks’ annual earnings reconciled with the data provided by the respondent that this data is correct. Earlier I gave an example of data being manipulated to suit an outcome. [143] I concur with Mr White in his view that the documentation had been compiled to best suit the position of the respondent, albeit incompetently. [144] The “pay” documentation in total provided by the respondent has added considerable confusion to the prosecution of this matter and is of little evidentiary value. I rely on it only as a means of contrast to other evidence. [145] Mr Brady on the other hand, argued that the onus was on the CFMEU to bring “all available evidence” before the Commission. I agree with Mr Brady to a point, however the evidence to which he refers resides with the respondent, and it was the respondent’s choice not to provide the information despite numerous requests. It is my view that Mr White could do little more than he did to provide documentary evidence. [146] Similarly, Mr Brady argued that Mr Brooks did not satisfy the onus of proof in support of his claims. I believe that the evidence from Mr Brooks, albeit inconsistent, was supported by evidence given in the other two matters by Mr Johns and Mr Stacey on the substantive matters. Further the circumstantial evidence educed by Mr Brooks is substantiated by the dearth of verifiable evidence from the respondent. I cite Jones and Dunkel as authority for this view. [147] Mr Brady stated categorically that Mr Brooks was paid for annual leave, public holidays, inclement weather days and sick days “from the beginning of his employment”. I accept that Mr Brady acts under instruction, however his statement was clearly not in accord with the evidence given by Mr Stacey the company owner in matter T12268 nor indeed with Mr Johns in the same matter. BANKING OF HOURS [148] Mr Brooks said in evidence that he accrued “banked hours” which he offset against times when he was not paid, such as being stood down due to inclement weather, public holidays, sick days and annual leave. There has been sufficient evidence educed to establish that during at least part of Mr Brooks’ employment with the respondent he and other the employees did bank and redeem hours worked. There was no evidence provided as to how banked hours were accounted for, either by the respondent or Mr Brooks. The only information provided to the Commission was that during his tenure with the respondent Mr Johns “kept” a record of Mr Brooks’ bank of hours. There are, however notations contained in Exhibit A3, which show that between September and December 2004 Mr Brooks had banked, on six separate occasions, a total of $1350.00 and on three separate occasions had withdrawn a total of $1600.00 from his bank of hours. [149] Accepting that the data is questionable and incomplete, the CFMEU did not challenge the information. It is evident that during 2004 at least, Mr Brooks followed the process of banking and redeeming hours. The redemption of Mr Brooks’ banked hours at the end of 2004 is also acknowledged by Mr Brady in support of a particular position he took. There was no documentary evidence in any of the “time records” to indicate that the hours banked were redeemed for anything other than three lump sum payments. [150] From the transcript of T12268 as well as submissions by Mr Brady, the practice of banking hours was a facility open to “casual” employees and, by inference, was not required by “full-time” employees to make up their pay for short weeks. I have already addressed the nomenclature “casual” above. The evidence from both parties clearly indicates that banking of hours was not limited to “casuals”. [151] It was admitted that Mr Brooks became a full-time employee in December 2003 and evidence was adduced that he banked hours during 2004. No documentary evidence was produced for any hours banked or redeemed beyond the Christmas break of 2004. Mr Brooks also gave evidence that when he was employed as a casual he did not bank hours. [152] Mr Brooks gave conflicting evidence with regard to the accrual and redemption of banked hours beyond 2004. With reference to his redemption of hours over the Christmas period 2004 he said: “I can’t remember if it was all my banked hours, but I’m pretty sure it was. I took a fair lump for that period.” (Transcript p.117, L.15) [153] And: “… the banking of hours wasn’t as common because Colin Johns wasn’t there …” (Transcript p.84, L.5) [154] And further, Mr Brady posed the question: “Why did you not mention in your statement what happened to banked hours after Mr Johns resigned? --- Because it slowly faded out until the AWA came in.” (Transcript p.116, L.35) [155] However, Mr Brooks contradicted himself, when he said: “… we didn’t bank the hours as much as we did when Colin Johns was around. But we’d accumulated so many hours when he was there from the time he left, we had heaps of hours – heaps of hours that we’ve saved.” (Transcript p.84, L.25) [156] And again: “I know eight months is a long time to have banked hours sitting there, but they were sitting there.” (Transcript p.84, L.40) [157] Mr Brook’s response to most of Mr Brady’s questions in cross-examination, regarding payment for days off work, was “banked hours” even for those times after 20 April 2005 where he agreed he enjoyed award conditions. [158] In his statement (Exhibit A6) Mr Brooks cites examples of being stood down without pay because of inclement weather, not paid for a public holiday and not paid for sick leave. From 6 January to 11 May 2005 Mr Brooks did not record any individual days where he was stood down. However, from 12 May through to the introduction of the AWA Mr Brooks claimed he drew down 13 individual days’ pay from his bank of hours to cover unpaid days. A period during which he admitted enjoying award conditions. For the whole of 2004 his records show he drew down 16 individual days’ pay from his bank of hours. I have difficulty putting any credibility on Mr Brooks’ recollections for calendar year 2005. [159] I found Mr Brooks’ evidence regarding the banking of hours beyond the end of 2004 contradictory and extremely confused. He admitted using up all of his banked hours in 2004, then he stated that he had accrued little beyond that time, yet had “heaps” even after a further eight months. [160] It was conceded by Mr Brady that hours were banked up to the end of 2004. There is no logical reason why one would bank hours unless it was to supplement a loss of earnings, for whatever reason. [161] I am convinced by the evidence in T12546 and T12268 and to an extent the evidence of Mr Brooks, that the respondent did not honour the award before 20 April 2005. It follows that up to that date any payment for annual leave, sick pay, pay for stand downs and public holidays came from Mr Brooks’ bank of hours. I so find. Witness Credibility [162] Mr Brady questioned Mr Brooks’ motivation in pursuing the instant matter. He branded him a jurisdiction shopper. He accused Mr Brooks of being someone who sought to inflict as much financial and emotional stress on Mr Stacey and his business as possible. He said Mr Brooks’ pursuit of the instant matter was trivial, vexatious, misconceived and lacked substance. He cited instances where Mr Brooks had sought to take action against the respondent through the Workplace Ombudsman, Workplace Standards Tasmania, the Launceston Magistrate’s Court and the Office of the Anti-Discrimination Commissioner, none of which have been successful to date. [163] Mr Brooks’ motivation and pursuit in other jurisdictions are not matters for this Commission to concern itself with. [164] Mr Brady made much of the semantics of Mr Brooks’ description of his taking time off as “personal” time rather than annual leave or the likes. I put no weight on the nomenclature. [165] Mr Brooks’ evidence, as mentioned above, was inconsistent to the point of becoming confused in parts. The reliability of his evidence regarding his banking of hours through 2005 is questionable. His insistence that he only took time off when absolutely necessary was shown not to be the case. He contradicted himself and Mr White in relation to receiving award conditions after 20 April 2005. [166] However, I accept that there is validity in much of what Mr Brooks has presented particularly as it is corroborated with the evidence of Mr Johns and Mr Stacey in the other matters already referred to. I also acknowledge that Mr Brooks was taking prescribed medication during the hearing which may have exacerbated the confusion. [167] Both Mr Johns and Mr Stacey in their statements to the Commission were inconsistent with evidence they had already given in the previous matters alluded to. I have relied on their sworn evidence and put little weight on their written statements. AWARD BREACHES [168] I turn now to the alleged individual award breaches. I have already said that the records of time worked and taken off by Mr Brooks are extremely unreliable, however for want of substantiated evidence I use them as guides when determining what reparation is due to Mr Brooks. • Clause 08: Employment Categories [169] Mr Brooks worked as a casual for the first month he was engaged by the respondent. Mr White claimed, at p.181, L.25 of transcript, that Mr Brooks only received a 20% casual loading on his hourly rate, not 25%. At Clause 8(b)(iii) of the award it stipulates a casual loading of 20%. Mr Brooks was paid according to the award, and I so find. • Clause 16: Inclement Weather [170] In matter T12546, at paragraph [62] of the decision, the observation was made that when the employees could not work due to inclement weather “… those days were not recorded in Mr Johns’ records.” If Mr Johns’ evidence is to be accepted, it follows that he would have relayed only the actual hours worked to Mr Stacey from which to make up the pays and that any days of inclement weather would not form part of the calculation. [171] From the evidence of Mr Brooks, and that of both Mr Johns and Mr Stacey, it is clear that Mr Brooks and others did not normally get paid when stood down because of inclement weather. The correlation between the rainfall data provided by the Department of Meteorology and the timesheets showing Mr Brooks allegedly requesting time off is convincing. [172] I find the respondent’s proposition that Mr Brooks did not like to work in the depot on wet days and sought the days off as fanciful. Mr Brooks is a manual worker, there is no evidence of him having an alternative income source; he stated many times he was “always available” for work, with two clear exceptions; it would not be unreasonable to postulate that he was dependent on his weekly wages. I cannot accept that Mr Brooks would rather lose a day’s wages or forfeit leave or banked hours than tolerate a day doing mundane chores in a depot. [173] Mr Brady conceded that there may have been some errors in the respondent’s documentation and accepted that Mr Brooks should have been paid for 3 and 23 December 2003, 18, 24 and 25 June 2004 and 10 September 2004. Mr Brooks is also entitled to be paid for all other days he was stood down due to inclement weather. I accept Mr Brady has made a concession for the aforementioned days. [174] Further, where it is shown that Mr Brooks was given time off which was designated as annual leave and coincided with inclement weather up to 20 April 2005 he is entitled to a day’s pay for each occurrence, and I so find. [175] Also, where it is shown that he was given time off which was designated as leave of absence and which coincided with inclement weather, other than for 10, 11 and 12 May and 11 June 2004, for all other occurrences up to 20 April 2005 he is entitled to a day’s pay for each. I so find. • Clause 19: Superannuation [176] At Part III – Wage and Related Matters, Clause 19(b)(ii) of the award it states: “The level of contributions required under the Superannuation Guarantee (Administration) Act 1992 are as follows: Financial year (1 July - 30 June) Percentage [177] Any monies payable to Mr Brooks which can be deemed to be in recompense for underpayment of wages shall attract the standard 9% superannuation contribution as contained in the award. • Clause 25: Meal Allowance [178] The Commission was shown numerous examples where Mr Brooks’ time at work had gone into overtime. At Clause 25 - Meal Allowances, the award prescribes: “(a) An employee required to work overtime for at least one and one half hours after working ordinary … shall be paid by the employer an amount of $14.60 to meet the cost of a meal. (b) PROVIDED that this subclause shall not apply to an employee who is provided with reasonable board and … is provided with a suitable meal. (c) A plant operator employee shall be entitled to be paid $9.60 for each meal after the completion of each four hours from the commencement of overtime.” [179] There is no distinction as to whether the overtime worked was actually on-the-job, travelling or any other condition. Mr Brooks is entitled to the meal allowance as prescribed in the award for each instance he worked more than 1½ hours overtime beyond his normal hours, and I so find. [180] It should be noted that there is no provision in the award for the employer to provide a meal in lieu of the allowance. • Clause 27: Hours of Work [181] Mr White argued that Exhibit A12, a letter from Mr Stacey in support of Mr Brooks securing a loan, showed that Mr Brooks was paid a flat rate for all the hours he worked. I do not believe that one can come to such a conclusion from the document. In my view the letter cannot be taken as anything more than an indication of Mr Brooks’ earning potential. • Clause 29: Overtime and Special time [182] Mr Brooks claimed he did not receive penalty rates for overtime or for weekend work. [183] Mr Brady cited the example of Mr Brooks being paid overtime on 20 August 2005 as proof he did get paid the requisite overtime when he had worked it. The example cited occurred after the 20 April 2005 from when award conditions apparently were met. [184] Mr Brooks, in response, said: “Sometimes we get paid overtime - sometimes; not all the time, sometimes …” (Transcript p.88, L.25) However, in his statement Exhibit A6 he said “I never got overtime or penalty rates”. [185] Mr Brooks offered no factual evidence as to the amount of overtime he worked and for which he was not correctly compensated. However where the records show, unreliable as they may be, Mr Brooks to have worked and paid for 8 hours at ordinary time, he is entitled to 0.4 hours of that at time-and-one-half for each occurrence. I so find. [186] Mr Brooks is also entitled to any other overtime where there is verifiable proof that he worked and was not correctly compensated, and I so find. [187] Mr Brooks’ claim that he did not have the required 10-hour break between finishing his shift on 9 December and starting work on 10 December 2003 cannot be substantiated. [188] According to Mr Johns, in matter T12268, it was common practice to work late and start the next day at the normal time. However this is too general a statement to put liability on the respondent for an alleged specific occurrence, without verifiable evidence. I agree with Mr Brady that this claim be dismissed. • Clause 31: Weekend Work [189] Exhibit A3 indicated that Mr Brooks worked on weekends in lieu of days off during the week and forfeited penalty payments. [190] The argument put by Mr Brady that Mr Brooks preferred to have a day off during the week and make it up on a weekend to tend his “farm”, defies logic. Mr Brady did not explain why working on a block of land during the week was preferable to doing so at weekends. It is my view that substituting weekends for weekdays was more to do with the requirements of particular projects and the weather rather than Mr Brooks’ agrarian pursuits. [191] It was the respondent’s decision to stand down Mr Brooks on weekdays as an offset against the weekend work. Mr Brooks is entitled to be paid at the appropriate penalty rates for every Saturday and Sunday he worked, and I so find. Mr Brooks is also entitled to receive payment for every weekday he was stood down without pay, in these circumstances, and I so find. [192] Mr Brady admitted that Mr Brooks was not given the appropriate minimum hours of work on a Sunday on at least one occasion. He argued that Mr Brooks chose to leave the job because he was suffering from a hangover. No evidence was adduced, such as a confirmation of a warning or a written reprimand, to substantiate the respondent’s claim. I reject the respondent’s assertion for lack of evidence. [193] On the occasions Mr Brooks did not receive the minimum hours as stipulated in the award, at Clause 31(b) for Saturday work, and (e) for Sunday work, Mr Brooks is entitled to have his pay made up to the minimum number of hours. I so find. • Clause 32: Annual Leave [194] The award stipulates that as a person continuously employed for more than 12 months, Mr Brooks was entitled to be paid annual leave as provided at Clause 32(a)(i) of the award. [195] In December 2003, Mr Brooks had only had one month as a full-time employee and therefore would not have met the criteria stipulated in the award at Clause 32. I dismiss the claim for annual leave for this period. [196] Mr Brooks did qualify for annual leave by Christmas 2004 by dint of his service. [197] Exhibit A3 provided a payment summary for both week ending 15 December 2004 and week ending 12 January 2005. No summaries are provided for weeks ending 22 and 29 December 2004 or 5 January 2005. Retention of the missing summaries is obviously a choice made by the respondent. Summary for week ending 15 December records banked hours which had been redeemed. [198] From the evidence given by Mr Brooks and in matter T12546, as well as the statement from Mr Johns, it is clear it was not the respondent’s practice to pay annual leave at the time in question. The failure of the respondent to provide summaries for the above critical dates leaves me no option but to accept that the information in these summaries would have been detrimental to the respondent’s case. There is no verifiable evidence that annual leave was paid for this period. [199] Mr Brooks is entitled to four weeks annual leave pay and leave loading for the Christmas period 2004, and I so find. [200] Accepting that award conditions were enjoyed from 20 April 2005, Mr Brooks is entitled to pro-rata annual leave as provided for by the award from January 2005 until that date. I so find. [201] It was the respondent’s submission that Mr Brooks sought to take numerous individual days off as annual leave. [202] Mr Brooks rejected this assertion and gave evidence that any single days denoted as annual leave by the respondent were days he was forced to take off and for which he redeemed banked hours. [203] The award is quite specific as to how annual leave may be taken. At Clause 32(b)(i) of the award, it states: “Either 28 consecutive days, or two separate periods of not less than seven consecutive days … PROVIDED that an employee may elect, with the consent of the employer, to take annual leave in single day periods or part of a single day not exceeding five days in any calendar year …” [204] The respondent has clearly breached the award. [205] I have already addressed the substitution of single days’ annual leave for the payment of inclement weather days under the heading Clause 16 - Inclement Weather. • Clause 33: Personal Leave [206] Although Mr Brooks stated to the Commission that he did not receive paid sick leave, his statement (Exhibit A6) only indicates one day, 10 October 2005 as a day he had taken off work because of sickness. He said he was not paid for this day. Exhibit A9 indicates that he was paid for the day. [207] Here lies another contradiction. The alleged breach took place just before the introduction of the AWA and after 20 April from which date Mr Brooks agreed he enjoyed award conditions, of which paid sick leave is one. Mr Brooks educed no evidence to support his claim. There is insufficient evidence for the Commission to accede to this claim. I dismiss the claim for this particular day’s sick leave. [208] Mr Johns in his evidence in T12546 grouped “sick days” amongst the times when the employees had to use their bank of hours to get paid. I do accept up to 20 April 2005, at least, the respondent did not pay for sick leave. • Clause 36: Public Holidays and Holiday Work [209] Mr Brooks stated he was not paid for public holidays. As an example he argued that he did not receive payment for 25 and 26 December 2003 or for 1 January 2004. The pay summary in Exhibit A3 for week ending 23 December 2003 shows a payment of $320.00, with no details of why such payment was made. [210] Mr Brady argued that the payment was for the three public holidays. [211] Mr Brooks refuted that argument saying the money was from his bank of hours. [212] The information contained in Exhibit A3 showed that Mr Brooks had been paid his overtime each week for three of the four weeks leading up to the Christmas break. I find it difficult to accept that in one week Mr Brooks could have accumulated three days worth of banked hours. [213] Mr White asked why would an employer who does not normally pay for public holidays suddenly pay for the three mentioned, particularly to a relatively new employee. I have sympathy with Mr White’s scepticism, however in my view the arithmetic does not add up for Mr Brooks to have accrued three days pay. [214] Coincidentally $320.00 is almost exactly three days’ pay at the then pay rate of $14.08. It is more likely the said amount of $320.00 was payment for the three public holidays, and I so find. [215] Mr Brady conceded that the respondent had not paid Mr Brooks for the 26 January and 8 March 2004 public holidays. Once again I accept Mr Brady has made a concession for the aforementioned days. Evidence educed in T12268 certainly supports Mr Brooks’ evidence that normally employees were not paid for public holidays. [216] Mr Brooks is entitled to be paid for all the public holidays occurring beyond March 2004 until 20 April 2005, and I so find. • Clause 45: Fares and Travel Patterns Allowance [217] Mr Brady, in his summation, acceded to the proposition that where it could be demonstrated that Mr Brooks was paid ordinary hours while travelling beyond his 7.6 hour shift, the appropriate overtime would be paid. (Transcript p.179, L.35) It was evinced to the Commission’s satisfaction that Mr Brooks started and finished each day at one of two places nominated by the respondent. Also, Mr Brooks was always transported from the “home base” to and from the work site by a company vehicle. It follows that the totality of his hours from sign-on to sign-off should be treated as hours at work. [218] There were occasions when Mr Brooks was required to work outside the prescribed 30km radius. From the documentation, his travel time to and from the workplace was logged as work time and can form part of the above calculation. While working away from the home base, again from documentation, his travel time to and from his temporary accommodation to the worksite was logged as hours worked and, again, can be incorporated in the above calculation. [219] This concession by Mr Brady alleviates the necessity by the Commission to determine travel allowances, or determine what work sites were within or outside the 30km radius as prescribed in Clause 45 of the award. SUMMARY [220] Within the parameters stated in the decision and the award, the parties must attach a dollar amount owing to Mr Brooks in the following categories: • Each day designated as showing Mr Brooks being stood down due to inclement weather; • Meal allowances attracted by the appropriate overtime; • All verifiable overtime for which Mr Brooks has not been compensated; • Full compensation for hours worked on Saturdays and Sundays; • Every weekday traded off for weekend work; • Minimum hours for Saturday and Sunday attendance; • Annual leave and leave loading for the calendar year 2004; • Pro rata annual leave and leave loading for 2005, up to 20 April; • All public holidays due from 4 March 2004 until 20 April 2005; • Overtime rates for all hours beyond ordinary time, including while travelling; and • Superannuation contribution attracted by the final dollar amount. [221] Both parties requested that they be given time to negotiate a monetary value of the Commission’s decision on the substance of the CFMEU’s application and that I refrain from issuing an order pending further negotiations. Accordingly, I direct the parties to confer. [222] The file will remain open pending further advice from the applicant.
Date and Place of Hearing: 2 T12546 of 2006, CFMEU v Crossroads Civil Contracting Pty Ltd |