WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES’ COURT

PARTIES TRANSPORT WORKERS' UNION OF AUSTRALIA, INDUSTRIAL UNION OF WORKERS, WESTERN AUSTRALIAN BRANCH

CLAIMANT

-v-

Soiland Pty Ltd (1 & 2) 2004 - 2005

RESPONDENT

CORAM INDUSTRIAL MAGISTRATE G. CICCHINI

HEARD Thursday, 16 March 2006, Wednesday, 29 March 2006

DELIVERED Wednesday, 29 March 2006

CLAIM NO. M 42 OF 2005

CITATION NO. 2006 WAIRC 04158

CatchWords Enforcement of award; Meal Allowance; Payment of higher rate as "all purpose rate", Set-off

Legislation Industrial Relations Act 1979 and Transport Workers (General) Award No. 10 of 1961

Cases referred to

in decision James Turner Roofing Pty Ltd –v- Christopher Lawrence Peters 83 WAIG 427

Result Claim proved

Representation 

Claimant Mr N J Hodgson appeared for the Claimant

Respondent Mr A R Beer appeared for the Respondent

Reasons for Decision

Background

1         Between 31 May 2003 and 24 March 2005 the Respondent employed the Claimant’s member, namely Gary Dover.  Mr Dover was employed as a truck driver and his conditions of employment were at all material times governed by the provisions of the Transport Workers (General) Award No 10 of 1961 (the Award).  There is no dispute between the parties that the Award had application to Mr Dover and the Respondent in their employment relationship.

The Issue

2         Clause 5.6 of the Award provides that a meal allowance is to be paid where an employee is required to work two or more hours of overtime.  The Claimant alleges that Mr Dover was regularly required to work more than two hours overtime each weekday and on Saturday but was never paid a meal allowance. The Claimant contends therefore that the Respondent has breached clause 5.6 of the Award.  It accordingly seeks the imposition of a penalty for the breach of the Award, the recovery of $3,014.80 allegedly underpaid, interest thereon and costs.

3         The Respondent admits that meal allowances were not paid but says that there was an agreement between the Respondent and all truck drivers that they would be paid at the next higher rate than that applicable to the vehicle configuration that they drove as an “all purpose rate” to cover allowances.  The Respondent contends that in paying the higher grade rate as an “all purpose rate” the Respondent has overpaid Mr Dover $727.80 compared to that which he would have been paid had he been paid at his correct rate plus meal allowance.

4         The Respondent says that it has met all its obligations pursuant to the Award and that Mr Dover has not been financially disadvantaged.  It relies on the principle enunciated in James Turner Roofing Pty Ltd v Christopher Lawrence Peters 83 WAIG 427 as support for its position that the overpayment should be set off against the amount claimed.

Mr Dover’s Evidence

5         Mr Dover testified that he commenced working for the Respondent’s predecessor some eleven years ago.  During that period the entity of his employer changed from time to time but his physical employment circumstances remained unaltered.  Despite the several changes in the identity of his employer he continued to work for “the same company, and the same people.  It was the same job.  Nothing changed.”

6         He testified that in early 2003 the Respondent’s predecessor became bankrupt which resulted in the Respondent taking over the business.  His claim is restricted to the period commencing when the Respondent took over the business until the cessation of his employment with the Respondent.

7         Mr Dover told the Court that when he was initially engaged by one of the Respondent’s predecessors that there was no discussion about his conditions of employment.  He simply had an expectation that he would be paid award rates.  When the Respondent took over the business there was no discussion about his conditions of employment and his situation remained unaltered.  There was never any discussion about any particular award entitlement.

8         During the period of his employment with the Respondent, Mr Dover drove semi-trailers, truck and dog trailer combinations and pocket road trains in the transport of soils and other base products.  He was expected to work a ten hour day Monday to Friday inclusive and an eight hour day on Saturdays, however, in reality his hours of work varied from day to day and he generally worked longer hours. The hours worked, as set out in exhibit 3, are said by him to reflect the hours he worked during the material period.  Indeed the Respondent does not take issue with that.

9         Mr Dover said that he was required to drive to the South West region of Western Australia and for that purpose would drive either an eight wheel truck and dog trailer or a pocket road train.  When in the metropolitan area he would drive either one of those combinations or a semi-trailer, being an articulated vehicle consisting of a prime mover and trailer.  He said that the truck with dog trailer and pocket road train combinations were classified in the Award as being within “Grade 8” and the semi-trailer as being within “Grade 7”.

10      Mr Dover testified that during the entire period of his employment with the Respondent and its predecessors he was never paid a meal allowance.

11      When cross-examined he conceded that he never questioned the fact that he was not paid a meal allowance.  He said that no-one was paid a meal allowance.  It was his view that it was a waste of time asking for it, given the attitude of his employer.  The Respondent looked unfavourably at union involvement and he was on one occasion penalised for attending a union meeting.  He eventually resigned because of the way he had been treated by his employer.

12      Mr Dover also said under cross-examination that there was never any agreement reached concerning the meal allowance or any other allowance for that matter.

The Evidence of Colin Nicholas Constantine

13      Colin Nicholas Constantine started working for one of the Respondent’s predecessors in November 1999.  He was initially engaged as a truck driver but was on

14      18 December 2003 appointed as the Respondent’s Transport Manager, a position that he held until he resigned in February 2005.  He said that when he was appointed as a truck driver there was no discussion about allowances or any other payment.  There was simply an expectation on his part that he would be paid the Award rate.  When he became the Transport Manager it was part of his function to hire truck drivers.  In so doing there was never any discussion about allowances.  He knew that the Respondents did not pay meal allowances and indeed none were paid.

15      Mr Constantine testified that, during his period with the Respondent, the Respondent had only one Grade 6 vehicle, being a six wheeler tip truck.  That was allocated to another employee and not to Mr Dover.  The other vehicles used by the Respondent were either within Grade 7 or 8.  He said that Mr Dover generally drove vehicles within the Grade 8 category, sometimes those within Grade 7 and, only rarely, those within Grade 6.

16      Mr Constantine reaffirmed under cross-examined that the drivers knew that they would not be paid a meal allowance.

Evidence of Arthur Raymond Beer

17      Mr Beer is the Respondent’s Human Resources Manager and he gave evidence for the purpose of introducing into evidence two documents that he prepared for the purpose of these proceedings, being exhibits 4 and 5.  Exhibit 4 details, with respect to Mr Dover’s work during the material period, the date, day of the week, starting time, the finish time, the meal breaks taken, the grade of vehicle driven on any particular day and the grade paid for that vehicle driven on the particular day.  The document was compiled from the daily time sheets filled in by Mr Dover which contained all relevant details as to times and which identified the truck driven and any trailer attached thereto.  Mr Beer did not produce the source records that gave rise to his document.  Further, he said that he has no knowledge of the trucks used by the Respondent or their award classification.  Accordingly he used the services of an experienced truck driver, namely Arthur Naylor, who has subsequently died, to assist him in allocating a grade to the configuration used by Mr Dover each day for the purposes of the preparation of exhibit 4.

18      When cross-examined Mr Beer readily conceded that he knew nothing about the identification codes relating to the trucks.  He could not tell from the codes the combination mass of the vehicles detailed in exhibit 4.

19      Mr Beer also produced exhibit 5 in which he detailed the gross pay received by Mr Dover, the gross pay he should have received and the variance between the two calculated on a weekly basis.  He calculated therein that Mr Dover was overpaid $727.80.

20      When cross-examined about exhibit 5 Mr Beer was taken to comment upon the calculation made for 30 June 2003 when on the Respondent’s record it shows in reference to exhibit 4 that Mr Dover, on that day, drove a Grade 8 vehicle, was paid a Grade 8 rate, but was not paid a meal allowance for that day.  Mr Beer said in response that the calculations could not be looked at on a day by day basis but rather in totality and when that was done the document he prepared (exhibit 5) demonstrates an overpayment.

21      The Respondent did not call other witnesses.

Conclusion

22      The Claimant bears the onus of proving its claim on the balance of probabilities.  As indicated earlier, there is no dispute that Mr Dover was an employee of the Respondent for the material period and that the conditions of his employment were governed by the Award.  The Claimant contends that for the major and substantial period of Mr Dover’s employment he drove Grade 8 configurations.  That importantly is supported by the evidence of Mr Constantine.  Mr Constantine was the Respondent’s Transport Manager for a significant portion of the period with respect to which the claim relates.  Given his position, he was in the best position to know what Mr Dover was driving during that time.  His evidence contradicts the assertion contained in exhibit 4 relating to the grade of vehicle driven by Mr Dover.  Indeed I find exhibit 4 to be of little or no value.  It is a secondary document prepared from source documents which have not been produced.  Moreover, and perhaps more importantly, the allocated grade of the vehicle as contained in the document is based on another person’s view.  The qualification of that other person has not been able to be tested, nor has there been any ability on the part of the Claimant to test the accuracy of the same.  In reality exhibit 4 represents a self-serving document which the Claimant has not been able to test.

23      The Respondent’s contention is almost entirely based on the accuracy of the information contained in exhibit 4 relating to the classification of the vehicle driven each day, however, there is nothing to support the accuracy of the same.  Accordingly it follows that where there is a contest between the sworn evidence of Mr Dover and Mr Constantine on the one hand and what is found in exhibit 4 on the other, that the sworn testimony is far preferable.

24      I find that Mr Dover, as his major and substantial duties, drove vehicles within the Grade 8 classification.  I reject the Respondent’s contention that Mr Dover drove vehicles within the Grade 6 classification for a major and substantial period of his employment.  Furthermore, I find there was no agreement with respect to meal allowance or any other allowances for that matter.  Indeed there was no discussion between Mr Dover and the Respondent’s representatives concerning pay.  There is no evidence before the Court which supports the Respondent’s contention that there was agreement between Mr Dover and his employer that he would be paid at the next higher rate as an “all purpose rate”.  I find that there was no such agreement.  Furthermore I reject the Respondent’s submission that the agreement in that regard is reflected by Mr Dover’s failure to complain about the non-payment of a meal allowance.  The failure to complain does not, of itself, reflect agreement.

25      The evidence establishes that Mr Dover carried out the functions of a Grade 8 employee and that he was paid as such, save that he was not paid the meal allowance to which he was entitled.  Given that the Respondent concedes that it did not pay the meal allowance during the period of the claim, it follows, in the light of the findings that I have made, that the Respondent has breached the Award as alleged.  I find, in accepting the calculations contained in exhibit 3, that Mr Dover was underpaid $3,014.80 as a consequence of the breach.  He is entitled to that sum together with interest thereon.   The facts in this matter exclude the application of the principles in James Turner Roofing (supra).

G. Cicchini

Industrial Magistrate