2022 WAIRC 00656
WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT


CITATION : 2022 WAIRC 00656

CORAM
: INDUSTRIAL MAGISTRATE E. O'DONNELL

HEARD
:
WEDNESDAY, 2 MARCH 2022

DELIVERED : FRIDAY, 9 SEPTEMBER 2022

FILE NO. : M 30 OF 2021

BETWEEN
:
BRIOHNY BARRETT
CLAIMANT

AND

CALLEGARI PROJECTS PTY LTD
RESPONDENT

CatchWords : INDUSTRIAL LAW – café workplace – job classification – provision of meal breaks
Legislation : Fair Work Act 2009 (Cth)
Instrument : Restaurant Industry Award 2010 (Cth)
Case(s) referred
to in reasons: : Appeal by Restaurant and Catering Association of Victoria [2014] FWCFB 1996
Result : Claim is proven in part
REPRESENTATION:

CLAIMANT : MR P. MULLALLY (AGENT) FROM WORKCLAIMS AUSTRALIA
RESPONDENT : MS V. CALLEGARI-RUDD (DIRECTOR)

REASONS FOR DECISION
Introduction
1 From 19 January 2016 until 4 September 2018 (period of employment), with the exception of a period between 16 February 2016 and 14 March 2016, Briohny Barrett (the Claimant) worked for Callegari Projects Pty Ltd (the Respondent) as a casual employee at a café called Vendetta Café (Vendetta) in West Perth.
2 Vendetta was owned by the Respondent and managed by the Respondent’s director, Valerie Callegari-Rudd (Ms Callegari-Rudd).
3 The Claimant’s employment was subject to the Restaurant Industry Award 2010 (Award).
4 The Claimant says that during the period of employment:
a. She should have been classified as a Food and Beverage Attendant Grade 2 (Grade 2) under the Award but, as she was not correctly classified, she was underpaid in that her base hourly rate was too low;
b. The Respondent breached cl 32.1 of the Award; and
c. The Respondent breached cl 32.4 of the Award. The Claimant’s Further and Better Particulars lodged on 12 July 2021 alleged breaches of cl 32.2, cl 32.5 and cl 33.1 of the Award, but it was clarified at trial that the Claimant was in fact alleging breaches of cl 32.1 and cl 32.4 only: Transcript, 2 - 3.

5 The Claimant says that as a consequence of the breaches of the Award, the Respondent is in breach of s 44 of the Fair Work Act 2009 (Cth) (FWA). As s 44 of the FWA is a civil remedy provision, the Claimant’s case is that the Respondent is liable to pay the amount of the alleged underpayment and is also liable to pay a penalty pursuant to s 539 of the FWA.
6 The Respondent wholly denies the claim.
Preliminary Matters
7 In making my determination as to the claim, I have had regard to the documents filed by the parties and the evidence led at trial.
8 At trial, the Respondent was represented by Ms Callegari-Rudd, who was also Vendetta’s manager and the person who employed the Claimant to work at Vendetta.
9 In her evidence at trial, Ms Callegari-Rudd said that during the Claimant’s period of employment, she did not formally classify the Claimant in an Award job classification; and that she had been aware of the Award ‘as a guide’ to the Claimant’s job classification. She said that she considered the Claimant to be a Food and Beverage Attendant Grade 1 (Grade 1), but accepted that she had not paid the Claimant the Award rate for that classification. Transcript, 76.

10 By the time of trial, Ms Callegari-Rudd was aware that the Award was not just ‘a guide’, but rather, was fully applicable to the Claimant’s employment at Vendetta.
11 Upon becoming aware of this, Ms Callegari-Rudd acknowledged that even if the Claimant had been properly classified as a Grade 1, she had been underpaid in that she had not been paid the Award rate. Consequently, Ms Callegari-Rudd wrote a cheque for the difference between the rate of pay actually paid to the Claimant, and the rate of pay she should have been receiving as a Grade 1.
12 The Claimant’s position is that the cheque does not satisfy her claim, because she should properly have been classified as a Grade 2, and because of the alleged breaches of cl 32.1 and cl 32.4 of the Award.
Job Classification Under The Award
13 The evidence establishes that the Claimant’s primary role at Vendetta was that of barista. Exhibit 1 – Witness Statement of Briohny Barrett signed 25 January 2022 and lodged 27 January 2022; Exhibit 6 – Witness Statement of Kirsty Harris signed 6 February 2022 and lodged 10 February 2022; Transcript, 38, 53, 55, 100.
The evidence also establishes that she performed other tasks in the café, and showed initiative in assisting with tasks when other employees were busy.
14 The Claimant’s curriculum vitae, which was attached to the Respondent’s documents filed in the case, indicates that the Claimant had had managerial experience in at least one other café. The fact that she had managerial experience and might have held more senior positions with more responsibility at other cafés does not assist her in this case. I can only determine her correct job classification based on the duties she carried out at Vendetta.
15 In my view, the Claimant exaggerated the significance of her duties away from the coffee machine. I accept that she performed many different duties in the café, but the evidence does not support a finding that she was regularly waiting on tables. Vendetta was for the most part a coffee shop with takeaway food. Tables were available for customers, but this was not a restaurant with wait staff regularly moving amongst the tables. In that regard, I take into account the evidence of Kirsty Harris (Ms Harris), who said: Transcript, 96.

And did the claimant - did you see the claimant serving tables as well?Ah, we didn't directly serve tables, as it was a takeaway, but yeah, clearing tables and serving on the till and, um, you know    .
16 As far as doing shopping for the business and reconciling the till are concerned, I do not accept that the Claimant carried out those duties with any regularity. Even if she had, she was not employed in a managerial position and in my view the Claimant took it upon herself to perform these things.
17 The Claimant’s principal function in the café was as a barista.
18 Notwithstanding my finding that the Claimant exaggerated the extent of her duties aside from preparing coffees in a high-volume context, in my view her claim as to classification must succeed. She should properly have been classified as a Grade 2 under the Award.
19 Appeal by Restaurant and Catering Association of Victoria [2014] FWCFB 1996 was an appeal brought before the Fair Work Commission seeking to overturn the decision of the Deputy President as to several reforms to the Award which had been sought by a group of employers. Referring to the issues raised by employers at first instance, the Commission said: Appeal by Restaurant and Catering Association of Victoria [2014] FWCFB 1996 [35].

The third [issue] concerned the lack of any reference to the work function of ‘barista’ in the Restaurant Award’s classification structure. The Deputy President said:
‘[282] The Award does not list all the various job titles in the industry.
[283] While I accept that some cafe and restaurant owners may not understand the classification structure and that the description of the tasks does not say barista, there is no doubt that a barista can be classified under the Award as a food and beverage attendant grade 2 or 3.’ (emphasis added)
20 The Commission concluded as follows: Appeal by Restaurant and Catering Association of Victoria [2014] FWCFB 1996 [317].

The third matter concerns the absence of a mention of barista duties in Grades 2 and 3. The title is said to be now a recognised title in the industry and the absence of the mention of it makes the Award difficult to understand and apply. The Deputy President rejected the change by saying that in her view there is no doubt that a barista could be classified as either Grade 2 or 3. In the light of the evidence of confusion it is better that greater clarity be provided by inserting an express reference to barista in these classification grades. (emphasis added)
21 In spite of the Commission’s conclusion on this issue, it does not appear that any specific reference to ‘barista’ has been included in any version of the Award since 2014. In my view, given the importance of baristas in modern Australian café culture, the Award should include a specific reference to that role. The absence of such a reference is bizarre.
22 Reading the Award on its face, it would be fairly easy to conclude that the Claimant was not performing any of the roles set out in the Grade 2 classification. However, in considering this case, it sat uneasily with me that an employee performing the regular, customer-facing role of barista in a busy café could possibly be classified only at Grade 1, which appears to be reserved for employees who have almost nothing to do with customers, other than receipt of monies.
23 Although Appeal by Restaurant and Catering Association of Victoria was not a case concerning an employee’s claim as to job classification, in my view it provides important insight into where the role of barista properly fits within the Award classifications.
24 The evidence of the Claimant’s role and the observations of the Commission in Appeal by Restaurant and Catering Association of Victoria lead me to conclude that the Claimant should have been paid as a Grade 2 for the entirety of the period of employment. She is therefore entitled to be paid the difference between her actual pay and what she ought to have been paid, had she been correctly classified at Grade 2.
25 The claim with respect to classification is allowed.
Alleged Contravention Of Clause 32.1 Of The Award
26 Clause 32.1 of the Award provides:
If an employee,including a casual employee,is required to work for five or more hours in a day the employee must be given an unpaid meal break of no less than 30 minutes. The break must be given no earlier than one hour after starting work and no later than six hours after starting work.
27 There is no doubt that the Claimant was almost always required to work for five or more hours. The Respondent was therefore required to give her an unpaid meal break of no less than 30 minutes, in accordance with cl 32.1.
28 The only reference to the Respondent’s alleged breach of this clause in the Claimant’s witness statement Exhibit 1.
is at paragraph 10, where the Claimant says:
The respondent consistently failed to allow a lunch break and did not accordingly make payment to me in compliance with the break provisions of the Award.
29 At trial, the Claimant gave the following evidence during evidence-in-chief: Transcript, 13.

So, Ms Barrett, in the timesheets you have shown, have you, a start time?Yes.
Each day?Yes.
And you have shown the finish time each day?Yes.
And are you able to tell her Honour whether you ever had a 30 minute meal break   ?No.
   in the day?No. If I did I wrote it down on the timesheet. There was a couple of days when I did take a break but I had written it in.
All right?Handwritten it in, yes.
But that will be reflected in the timesheet?Yes.
So only the times that have been written down were the times when you got a 30 minute meal break?Yes. If I had an appointment or if I called in, yeah, I took a break.
30 Later in her evidence, when explaining her timesheets, the Claimant said: Transcript, 18.

… ---Am I allowed to say something, is that okay? Am I able to say something?
Yes, of course?So on the, um - it's noted on 8/9/2017 in the third column I have also written down that I took a 15 minute break. So when I did take a break I always wrote it down. So it's - in each column it will show where I've taken a break. And I've written the time that I took the break too.
31 The Claimant also explained that in her timesheets for the week ending 3 August 2018 through to the week ending 7 September 2018 (the end of her employment with the Respondent), she wrote in the timesheets whether or not she had a break. She said that she began doing this ‘recently after I had contacted Fair Work in regards to not taking a meal break, so I started writing down that I wasn't taking a break or if I did I - I wrote it down’. Transcript, 19.

32 Most of the Claimant’s work days between 3 August 2018 and 7 September 2018 bear a handwritten notation, which I accept is in the Claimant’s handwriting, which says ‘no brk’. In accordance with the Claimant’s evidence, I accept that ‘no brk’ was an abbreviation for ‘no break’.
33 Under cross-examination, the Claimant disagreed that Ms Callegari-Rudd had told her, upon employing her, that she was entitled to a 30 minute break. When asked if other people had breaks, the Claimant said ‘no’. Transcript, 21 - 22.

34 The Claimant attempted at this point to give some evidence about another employee, ‘Miles’, and she attempted to effectively cross-examine her questioner, Ms Callegari-Rudd. I disregard anything to do with ‘Miles’. ‘Miles’ was not called as a witness, and it is not for a witness to ask questions of the party cross-examining.
35 The following matters are evident from the Claimant’s timesheets (which are part of Exhibit 2) and from her evidence at the trial:
a. The Claimant filled in her own timesheets.
b. Each day on the timesheet contained three things: start time, finish time and total hours worked.
c. From the commencement of her employment in 2016 through to the end of 2017, the Claimant’s total hours worked, as reflected in the timesheets, added up to 30 minutes less than the total number of hours between start time and finish time, suggesting that at some point during the day, she had taken a 30 minute break.
d. In 2018, the Claimant’s total hours worked added up to the exact number of hours between start time and finish time, suggesting no break was taken.
36 During the Claimant’s cross-examination, I asked the following questions with respect to the Claimant’s timesheets: Transcript, 36.

So if you can find the page that has the very beginning of 2018. So it says ‘New Year 2018’ and then you've got 12/1/18 in the left-hand column?Ah, just one second, sorry.
That's okay. Let me know when you've got it?Yes.
Okay, and you can see next to that it says ‘Actual time’?Actual time.
What does that mean?Um, when - when I first started Valerie - we - we had to write in the hours we worked and I do remember Valerie saying, um - and that's when I was working with Kirsty, just because I had to check with her, she - she put - we had to put a different time. Um, this is obviously, I'm being very honest here, um, we had to put a different time to what we - the hours that we had written ourselves, like down, and I got - I used to get so confused because I'm like isn't that that time and then, um, it used to make me so confused. But then I figured out, um, obviously I was not sitting right well with that and then clearly on the - when I first came back to work I just thought, no, I'm going to write down the exact hours that I'm working because previously I was confused with how we were writing out the timesheet book cos we - it's like we had to deduct time off but I didn't take a break, that's what I was quite - um, I wasn't happy with that.
So who told you - who misled you? Who do you say misled you?Um, I think it was the staff and Valerie, that it was - it was very misleading and I was very confused about it. And, um, I don't want to sort of cause any issues but I know Valerie used to get very frustrated with me about writing out the timesheet book because I - I just - I thought we wrote down the times that we worked, that's the - that's the - the actual time that we worked. Yes.
So you can't remember where you got this erroneous impression from?The what, sorry?
This erroneous impression?Um, well   
That you had to take off 30 minutes when that was wrong?Yes. That's was - that's correct.
But you can't remember who told you that?It was - well, Valerie at the end of the day would check our time book and, um, she would - I - I'd actually asked what - what time am I supposed to write in here. Um, and I also had to ask Kirsty, um, the same question because I just used to get confused about the hours cos I - and then that's why I was just like, no, I'm going to start writing exactly the time that I've been working, yeah.
37 I have difficulty accepting that someone with the Claimant’s experience working in cafés prior to Vendetta would have misunderstand or been ‘confused’ about the proper way to fill in a timesheet, even at the beginning of her employment at Vendetta.
38 Even if she had been confused when she first started working at Vendetta, I do not accept that she would have put up with that state of confusion for almost two years, until the beginning of 2018, when her method of filling out the timesheets changed.
39 As Ms Callegari-Rudd pointed out, from the beginning of the period of employment until the beginning of 2018, the Claimant recorded her start time and finish time, and then calculated her hours worked as the time between start and finish, minus 30 minutes. The only logical reason she filled out the sheets in this way is because she worked those hours, with a 30 minute break at some point during the day.
40 As shown in the transcript quoted at paragraph 36 above, the Claimant was unable to give a straight answer when asked how she had come to the impression that she had to account for a – in her view non-existent – 30 minute break.
41 Further, the Claimant’s evidence on this point is inconsistent with the evidence of Ms Harris. Ms Harris worked at Vendetta from October 2015 until February 2017, so her period of employment partially overlapped with that of the Claimant.
42 Ms Harris’ evidence about breaks at Vendetta is found at pages 96 - 97 of the trial transcript.
43 In summary, Ms Harris said:
a. If she was taking a break, she had to account for it by deducting 30 minutes off her time worked when filling in her timesheet;
b. There were no days when she did not take a break at all;
c. Sometimes she might take a 25 minute break, rather than a 30 minute break;
d. It was necessary for staff to take a break, given that they were on their feet all day;
e. Everybody she worked with, including the Claimant, was offered the break and took their time to have lunch; and
f. Ms Harris did not time the Claimant, but she (the Claimant) got the opportunity to have lunch.
44 I accept Ms Harris as a credible witness. She accepted that she personally did not take a full 30 minute break every day she worked – sometimes it was ‘probably 25 minutes’. Transcript, 97.
She was not questioned as to why sometimes her break was shorter than 30 minutes, but I infer from the evidence as a whole that this would have been because the café was busy.
45 Ms Harris saying that sometimes her break was 25 minutes is a far cry from the Claimant’s assertion that there were days when she was given no break at all. The Claimant’s insistence that she was confused and in fact worked all those hours with no break at all lacks credibility.
46 In making my assessment of the Claimant’s credibility, I take into account also that she was at times argumentative in the witness box. At times she attempted to turn the cross-examination onto Ms Callegari-Rudd, and relied upon hearsay to suggest that Ms Callegari-Rudd’s questions had no foundation. For example, when being questioned about her return to Vendetta after taking some time to explore floristry, in support of her answer that it was incorrect that Ms Callegari-Rudd had somebody leaving, enabling the Claimant to return, the Claimant asserted that she had been ‘informed’ by someone else that the other employee had effectively been sacked – in other words, she vehemently asserted that Ms Callegari-Rudd was ‘incorrect’ on the basis of hearsay information. Such confidence on the basis of a third-hand assertion causes me to have concerns about the accuracy of the Claimant’s evidence more generally – and in particular, as to her assertion that she was not told that she was permitted to have a break at work.
47 I do not accept that the Claimant was not permitted to have breaks at any time during her employment at Vendetta, let alone for the entire duration of that employment.
48 There was no set time for a break, but there is no doubt in my mind that the break was available and that Ms Callegari-Rudd made it clear that it should be taken before the lunch rush. That finding is important, because of course the Award does not simply require that employees be given a 30 minute break. It requires that the break be given no earlier than one hour after start time, and no later than six hours after start time. I find that the break was given within those parameters.
49 The totality of the evidence establishes that Ms Callegari-Rudd did not provide specific times for her staff to take their 30 minute break. However, she made it clear that they were entitled to the break and should take it prior to the lunch rush.
50 On my reading of the Award, there is no requirement that the break be given or taken at exactly the same time every day. Indeed, this would be difficult to achieve in a busy café where the ‘rush’ may happen at a slightly different time each day. Provided that the break is given no later than six hours after starting work, there has been compliance with the Award.
51 Ms Callegari-Rudd did not require the Claimant to work for more than six hours without a 30 minute break, and the timesheets make it clear that the Claimant did take the requisite break.
52 With respect to the timesheets noting no break at all, I reject them as inaccurate. I cannot help but find that the Claimant has misstated the position on those later timesheets (from 2018). It makes no sense that an employee with the Claimant’s experience would misunderstand how to fill in timesheets and would do so erroneously for almost two years, before suddenly changing her method of time-keeping toward the end of her employment. I reject that evidence as lacking credibility and I find that the insertion of ‘no brk’ was done with an outcome in mind, for reasons known only to the Claimant and which I cannot and do not speculate upon.
53 The Claimant was permitted to have a break every day, and was permitted to do so no later than six hours after starting work, as required by cl 32.1 of the Award (it was erroneously claimed that the break had to be given after five hours).
54 The claim of a breach of cl 32.1 of the Award is dismissed.
55 As I have found that the Claimant was given meal breaks in accordance with cl 32.1, there was no obligation upon the Respondent to pay the Claimant 150% of her ordinary base rate of pay from the end of six hours until either the meal break was given or her shift ended.
56 Consequently, there has been no breach of cl 32.4 of the Award.
57 The claim of a breach of cl 32.4 of the Award is dismissed.
Order
58 The Respondent shall pay to the Claimant a sum of money, to be calculated, which shall be the difference between the rate she was actually paid and the rate she should have been paid as a Grade 2, for the entirety of the period of employment.



E. O’DONNELL
INDUSTRIAL MAGISTRATE