100319750

WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATE’S COURT

PARTIES ANTHONY HARRIS, DEPARTMENT OF CONSUMER AND EMPLOYMENT PROTECTION

CLAIMANT

 -v-

 ROBIN CHARLES WILLIAM LAMMIE T/A BUNBURY FREIGHT SERVICE

RESPONDENT

CORAM MAGISTRATE WG TARR IM

DATE WEDNESDAY, 27 AUGUST 2003

CLAIM NO M 279 OF 2002

CITATION NO. 2003 WAIRC 09829

_______________________________________________________________________________ 

Representation

Claimant  Mr A Bastow (of Counsel).

Respondent  Mr D Clarke of Senate Pty Ltd appeared as agent.

_______________________________________________________________________________

Reasons for Decision

1         The Claimant in these proceedings has filed its claim on behalf of Phillip Kiely, who was employed by the Respondent, claiming breaches of the Transport Workers (General) Award No 10 of 1961 (“the Award”).  In particular it is claimed that the Respondent failed to pay overtime rates and meal allowances.

2         The Respondent operates a transport business in the name of Bunbury Freight Service at 84 Strickland Street, Bunbury.

3         It is not in dispute that the Respondent employed Phillip Kiely as a full-time van and truck driver during the period 4 October 2000 to 14 September 2001.

4         There was no concession by the Respondent that the Award has application and that was because of the unusual wording of the Scope clause of the Award.  That clause (clause 3) of the Award is as follows:

This award shall apply to all workers following the vocations referred to in the wages schedule who are eligible for membership in the applicant union and who are employed in the industries referred to in the Schedule of Respondents.  Provided that this award shall not apply to bread carters, workers engaged in the timber industry within the South West Land Division nor to workers whose duties involve them in delivering goods or materials solely beyond the West Australian State border.

5         It was necessary for the Claimant to call an officer of the Transport Workers Union to give evidence that Mr Kiely would be eligible for membership of that Union.  I have no doubt on the evidence before me that Mr Kiely’s duties as a driver fell within the vocations referred to in the wages schedule (clause 7) of the Award and that the Respondent’s business involved the transportation of goods and materials, an industry carried on by the respondents to the Award.

6         The Award, therefore, has application in this matter and both the Respondent and the employee are bound by the Award.

7         Clause 9 of the Award makes provision for the ordinary hours of work and the basis on which they are to be worked.  Subclause (5) of that clause provides:

(5) The ordinary hours of work shall not exceed 10 hours on any day.

 Provided that in any arrangement of ordinary working hours, where such ordinary hours are to exceed 8 hours on any day, the arrangement of hours shall be subject to the agreement between the employer and the majority of employees in the plant or section or sections concerned.

8         It is argued , albeit not strongly, by the Claimant that because on the majority of days the hours worked were in excess of 10 I should find that subclause (5) applies for the purpose of calculating overtime.

9         There is no evidence before me that the Respondent or the employee turned their mind to any arrangement or came to an agreement as envisaged by the subclause.  In the absence of such agreement any overtime to be paid for hours worked outside of the ordinary hours should be calculated on 8 ordinary hours per day.

10     Overtime payments are provided for in clause 12 of the Award as follows:

12. - OVERTIME

(1) Subject to subclause (4) of this clause, all time worked -

 (a) outside the ordinary hours of work prescribed for any day in Clause 9. - Hours of this award; or

 (b) outside the ordinary hours of work prescribed for any week by Clause 9. - Hours of this award but which time would not be outside the ordinary hours for any day;

 shall stand alone and be paid for at the rate of time and a half for the first two hours and double time thereafter in addition to the ordinary weekly wage.  Provided that all overtime worked on Sunday and Saturday after 12 noon shall be paid for at the rate of double time and provided further that the penalty rates prescribed in Clause 10. - Saturday and Sunday Time and Clause 11. - Night Work of this award shall not be regarded as part of the ordinary rate for calculating overtime.

 For the purposes of this subclause, ordinary hours shall mean the hours of work fixed in an establishment in accordance with Clauses 9. - Hours, 9A. - Implementation of 38 Hour Week and 9B. - Procedures for In-Plant Discussions of this award.

11     Weekly time sheets and pay advice slips were kept and have been produced for the period of the claim and it is apparent from them that Mr Kiely was not paid overtime as required by clause 12(1) of the Award or, in fact, any payments identified as being for overtime.

12     Subclause (4) of clause 12 is set out hereunder:

(4) (a)   (i) When overtime work is necessary it shall, wherever reasonably practicable, be so arranged that workers have at least ten consecutive hours off duty between the work of successive days.

   (ii) A worker (other than a casual worker) who works so much overtime between the termination of his ordinary work on one day and the commencement of ordinary hours on the next day, that he has not at least ten consecutive hours off duty between those times, shall, subject to this subclause be released after completion of such overtime until he has had ten consecutive hours off duty without loss of pay for ordinary working time occurring during such absence.

  (iii) If, on the instruction of his employer, such a worker resumes or continues work without having had such ten consecutives hours off duty he shall be paid at double rates until he is released from duty for such period and he shall then be entitled to be absent until he has had ten consecutive hours off duty without loss of pay for ordinary working time occurring during such absence.

13     There is evidence in the time and wages records tendered to show that on some occasions when Mr Kiely did what has been described as the Perth run he finished work for the day after 8.00 pm and commenced work the following day at 6.00 am.  As a result he became eligible for the rate of pay provided for in clause 12(4).

14     It is argued on behalf of the Respondent that Mr Kiely was not given the instruction required in subclause (4)(iii) of clause 12.  In that regard Mr Kiely gave evidence that if he was not tasked to do the Perth run he would be required to pick up and do deliveries in the Bunbury area (“the Bunbury run”).  When required to do the Perth run Mr Kiely would start work, he said, at 10.00 am.  That start time was later changed to 11.00 am.  When required to do the Bunbury run Mr Kiely would start work at 6.00 am.  His evidence was that he was expected to start work at 6.00 am and no-one told him otherwise.

15     Evidence was given by Mr Mark Donovan who was the Manager of Bunbury Freight Service during Mr Kiely’s employment.  Mr Donovan had started with the business as a truck driver and was employed for a total of 9½ years.  His evidence in relation to hours was that Mr Kiely was expected to start at 6.00 am when he was not doing the Perth run notwithstanding the fact that he may have done the Perth run the day before and got in reasonably late resulting in him not having 10 hours off duty before the next start.  As far as he was aware no-one told Mr Kiely that he was not required to start work until he had 10 hours off.  He went on to say that the 10 hour breaks “were never enforced upon us”.  He did not tell the drivers that they had to have a 10 hour break because “it was just something we never really worried about”.

16     The evidence before me is that there were occasions when Mr Kiely recommenced work without having had at least 10 consecutive hours off since finishing work the day before.  He did so because he understood that was expected of him and because no-one had turned their minds to the requirement to have 10 hours off.  I find, therefore, that Mr Kiely is entitled to be paid overtime as provided for in clause 12(4) on those occasions he had less than 10 hours off between shifts.

17     The time and wages records tendered in evidence generally show a starting time (time in) and a finishing time (time out) without recording any time taken for a meal break.  Mr Lammie gave evidence that he did not deduct time for meal breaks but paid his employees for the total hours shown each day.

18     The Award, in clause 15, provides that:

“(e)very worker shall be allowed each day a meal break of not less than thirty minutes nor more than one hour, to commence at any time between the end of the third and end of the fifth hour of the day's employment, …”

(see subclause (4))

19     The evidence before me is that there was no set time for meal breaks although those working in the Respondent’s depot or on the Bunbury run would have at least one break of thirty minutes during the day when food provided by the Respondent would be consumed.  It was the evidence of Mr Broome, a leading hand with the Respondent, that there were opportunities through the day for breaks to be taken including one 30 minute minimum break between 10.30 am and 11.30 am and again between about 2.30 pm and 3.30 pm while waiting for trucks to arrive.

20     It seems to me that, in the absence of any recorded evidence of time taken for meal breaks, it is not unreasonable to conclude that the Respondent’s employees, where the working hours on any one day exceeded 8 hours, would have taken breaks during the day totalling at least 1 hour.  Therefore, any calculation should make allowance for a one hour meal break.  I cannot conclude on the balance of probabilities that a lesser period should apply.

21     When engaged on the Perth run, it is the evidence of Mr Kiely that he would have a meal as the opportunity arose and while waiting in the Perth depot.  In my view he should not be debited with meal time in excess of the reasonable time it would take to eat his meal and have a break.  The Award suggests thirty minutes to be the minimum time required for that.  So for the purpose of calculating the hours worked on the Perth run, thirty minutes should be deducted for a meal break.

22     The next issue to be considered is the claim for meal allowance.

23     Clause 15 is set out in full hereunder:

15. - MEALS

(1) A worker required to work overtime for two hours or more shall be supplied with a reasonable meal by the employer or paid $6.80 for a meal.

(2) If the amount of overtime required to be worked necessitates a second or subsequent meal, the employer shall provide such meals or pay an amount of $4.65 for each second or subsequent meal.

(3) No such payments need to be made to a worker living in the same locality as his place of work who can reasonably return home for such meals.

(4) Every worker shall be allowed each day a meal break of not less than thirty minutes nor more than one hour, to commence at any time between the end of the third and end of the fifth hour of the day's employment, except where an alternative arrangement is entered into as a result of discussions as provided for in Clause 9B. - Procedures for In-Plant Discussions of this award.

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

24     As clause 15(1) provides, where a worker is required to work overtime for two hours or more he is to be supplied with a reasonable meal by the employer or paid $4.90 for a meal.

25     It follows in my view that the meal supplied is intended to be the meal the employee might miss out on because he is working the overtime.  Where the driver of the Perth run starts at 10.00 am or 11.00 am it must be the evening meal which is to be provided by the employer.

26     Mr Broome gave evidence that he would go down to the Action Supermarket each morning and buy “bread rolls, hot dogs, chooks and cold meat” which were available for the lunch break between 10.30 am and 11.30 am.  Although Mr Broome said he had used those supplies when he did the Perth run, the evidence suggests they were for those employees at the Bunbury depot at the time.  Mr Donovan gave evidence that meals were not provided for those on the Perth run.  He said “when you’re in the depot, there was sort of smoko and that’s supplied.  Bread, toast, rolls, hot dogs.  Enough to make something to eat there”.

27     Mr Kiely gave evidence that he provided his own meals when on the Perth run and was not paid a meal allowance.  There is no evidence to contradict his evidence on that issue.

28     When on the Perth run Mr Kiely worked overtime for two hours or more and he was entitled to be supplied with a reasonable meal or paid $4.90 for a meal.  He was neither provided with a reasonable meal nor paid the allowance.  He therefore succeeds in his claim and is entitled to be paid a meal allowance for each and every Perth run where he worked 10 or more hours.

29     The remaining issue is the accounting for the bonuses which, it has been agreed, were paid.  It would appear that only on one of the weekly time sheets (week ending 8 November 2000) was any notation made of the weekend “food runs” times.  The Claimant has included those hours in its schedule (exhibit G) and claims 2 hours for Saturday afternoon at double time and 2 hours in total for Sunday at double time and has given credit for the $50.00 bonus paid.  That is a calculation which is favourable to the Respondent.  It is arguable that the employee is entitled to 9 hours overtime at double time having regard to the minimum of 3 hours requirement in clause 12(2)(a) which reads:

(2) (a) A worker required for work on a day other than his ordinary working day or recalled to work after leaving his employer's business premises shall be paid for a minimum of three hours work at the appropriate rate.

30     While it is arguable that bonuses paid as such should not be later applied in reduction of underpaid wages, I believe it is appropriate in all of the circumstances of this case that the $50.00 bonus referred to should be applied the way it has been and because there is no record of the hours worked on the other occasions bonuses were paid they should be ignored for the purpose of this claim.

31     There is, it would seem, no dispute in this case in regard to the actual hours worked by the employee, the amounts he was paid and the rates used to calculate those amounts.  It should not be difficult now for the parties, using copies of exhibit G and these reasons for decision to calculate the amount due to Mr Kiely and I invite the parties to do so.

32     The matter will stand adjourned for that purpose, to a date I will fix now, when I will hear the parties in relation to pre-judgment interest, penalty, costs and mitigation.

WG Tarr

Industrial Magistrate