Darren Darr v Wax Converters Textiles Pty Ltd T/A Wax Converters

[2020] FWC 6736

[2020] FWC 6736

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Darren Darr
v
Wax Converters Textiles Pty Ltd T/A Wax Converters
(C2020/6475)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 14 DECEMBER 2020

Application to deal with a dispute in accordance with a dispute settlement procedure in an enterprise agreement – alleged agreement requiring an employee to work through his meal break.

Introduction and background

[1] Mr Darren Darr and his employer, Wax Converters Textiles Pty Ltd T/A Wax Converters (Respondent), are in dispute in relation to an alleged agreement made under clause 5.5 of the Wax Converters Textiles Pty Ltd Enterprise Agreement 2012 (Agreement), which applies, and has applied at all material times, to Mr Darr (Dispute).

[2] Mr Darr is a member of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and was represented by the CFMMEU throughout the Dispute. The Respondent was represented by its Chief Executive Officer and director, Mr James Kelman.

[3] On about 21 August 2020 the CFMMEU filed an application pursuant to s 739 of the Fair Work Act 2009 (Cth) (Act) in the Fair Work Commission (Commission) for the Commission to deal with the Dispute pursuant to clause 7.1 of the Agreement. That clause sets out the procedures to resolve “disagreements, disputes or occupational health and safety concerns”.

[4] I conciliated the Dispute but could not resolve it. Mr Darr then asked for the Dispute to be arbitrated. The Respondent consented to the Commission arbitrating the Dispute.

[5] There is no dispute between the parties, and I am satisfied on the evidence, that I have jurisdiction to arbitrate the Dispute. The arbitration hearing took place, by video conference, on 9 December 2020.

[6] The question for arbitration is whether, on any one or more particular days, Mr Darr entered into a mutual agreement with the Respondent whereby he was required to work during his meal break to monitor the process in his control such that he was entitled to be paid at the rate of time and one half for the period of the break in accordance with clause 5.5 of the Agreement.

A brief outline of the Dispute

[7] Clause 5.5 of the Agreement provides:

“5.5 Meal Breaks

An unpaid meal break of thirty (30) minutes for day workers and a paid meal break of thirty (30) minute duration for shift workers shall be taken according to the dictates of work requirements, not less than three hours but no greater than five hours after the normal starting time of the employee shift. By mutual agreement an employee may be required to work during his meal break to monitor the process in his/her control in which case the employee shall be paid at the rate of time and one half for the period of the break.”

[8] In the period from October 2012 to April 2019 (Relevant Period) Mr Darr worked as an operator on the Canvas Proofing Machine (Proofing Machine), which applies a proofing mix to cloth in order to waterproof the cloth and turn it into canvas. In order to apply the proofing mix to the cloth, the Proofing Machine runs the cloth through an oven heated to approximately 250 degrees centigrade and over large drums heated by natural gas.

[9] During the time that Mr Darr worked on the Proofing Machine he claims that he had an agreement with the Respondent whereby he was required to work during his meal break to monitor the Proofing Machine. Mr Darr says that save for about three or four occasions in the Relevant Period when he took a 30 minute meal break, he was required to, and did, work through his 30 minute meal break in order to monitor, or work in connection with, the Proofing Machine. It follows, so Mr Darr contends, that he has an entitlement under clause 5.5 of the Agreement to be paid at the rate of time and one half for the 30 minute meal breaks he did not take in the Relevant Period.

[10] The Respondent contended in its written outline of submissions that there has never been a mutual agreement between it and any employees for working during meal breaks to be paid at overtime rates when ordinary hours of work are not completed. This argument may be immediately put to one side, for clause 5.5 of the Agreement does not require agreement to be reached about the rate at which an employee will be paid if they work through a meal break. Instead, clause 5.5 confers on an employee a right to be paid at the rate of time and one half if there is a mutual agreement whereby the employee is required to work, and does work, during his or her meal break to monitor the process in his or her control.

[11] At the arbitration hearing it became clear that the Respondent, which was not legally represented, was contending that it reached an agreement with Mr Darr whereby he could work through his 30 minute meal break, and if he did so, he would be entitled to leave work 30 minutes early. The Respondent denies that Mr Darr was required to work through his 30 minute meal break or that it made an agreement with him to that effect.

[12] Accordingly, the issue in this case is not whether an agreement was made concerning Mr Darr working through his 30 minute meal break, but the content of that agreement. Was it, as Mr Darr contends, an agreement with the Respondent whereby he was required to work during his meal break to monitor the Proofing Machine? Or was it, as the Respondent contends, an agreement whereby Mr Darr could work through his 30 minute meal break, and if he did so, he would be entitled to leave work 30 minutes early?

Relevant facts

[13] Mr Darr relies on the way in which the operator of the Proofing Machine must work and the duties and responsibilities he or she must undertake in that role to support his argument concerning the existence of an agreement within the meaning of clause 5.5 of the Agreement. I make the following findings in relation to these matters:

•  It takes between about three and five hours for the Proofing Machine to complete a ‘run’, which is the process whereby cloth runs through a heated oven and over large heated drums. During that process the Proofing Machine must be monitored at all times. At the conclusion of the ‘run’, it is necessary for the A-frame on which the cloth is rolled to be moved so the cloth can undergo a second ‘run’, which is the same process as the first ‘run’ but takes less time. At the conclusion of the second ‘run’, the Proofing Machine needs to be cleaned and set up for a new ‘run’.

•  Mr Darr contends that it is not possible to take a 30 minute meal break between the first ‘run’ and the second ‘run’ because drying will occur and that will impact the quality of the final product. I do not accept that evidence. Mr Stuart Parker, an employee of the Respondent, gave evidence that taking a 30 minute break between a first and second ‘run’ would not damage the quality of the final product, but it is not possible for the operator of the Proofing Machine to take a 30 minute break at that time because a break of that length would allow the Proofing Machine to cool down too much, with the result that it would take too long to heat back up and the second ‘run’ would not be able to be completed by the end of the shift. I accept Mr Parker’s evidence in this regard. He is a very experienced employee of the Respondent, having worked for the Respondent since 2001, and has operated the Proofing Machine for a considerable period of time himself. Further, Mr Parker’s evidence about the impact of taking a 30 minute break between the first and second ‘run’ on the quality of the final product was supported by the evidence of Mr Kelman.

•  It follows that the only way the operator of the Proofing Machine can take a 30 minute meal break is for another employee to either (a) monitor the Proofing Machine or (b) if the break is taken after the first ‘run’, move the A-frame into position and commence the second ‘run’ while the operator takes his or her break.

[14] As to the making of the agreement under clause 5.5 of the Agreement, Mr Darr relies on conversations he says he had with two former employees of the Respondent, neither of whom was called to give evidence. First, Mr Darr says that in October 2012 he was trained by Mr Jared Payne to operate the Proofing Machine. In his witness statement, Mr Darr relevantly stated: 1

“When I was first trained to work on the Proofing Machine in October 2012, I was told by the person training me, Jared Payne, that workers assigned to the Proofing Machine did not get to take breaks, including meal breaks, because the Proofing Machine required constant monitoring. I agreed to take the position operating the Proofing Machine knowing that I would not be able to take meal breaks because I would have to be monitoring the machine.”

[15] Secondly, Mr Darr says that in 2013 and again in 2017 he asked his supervisor, Mr Mick Prouse, if another worker could monitor the Proofing Machine so that he could take a meal break in the break room. Mr Darr contends that Mr Prouse told him that he could ask another worker to monitor the Proofing Machine while he took a break if he wanted to do that, but they would not direct anyone to do so, and if another worker did not agree, Mr Darr would have to work through his meal break to monitor the Proofing Machine. Mr Darr says that he did not ask another worker to monitor the Proofing Machine so he could take a 30 minute meal break.

[16] In his oral evidence, Mr Darr said that during his training in 2012, Mr Payne told him that when the Proofing Machine was running there was no opportunity to take a break because it had to be constantly monitored and he was entitled to leave work half an hour early when he worked through on the Proofing Machine. Mr Darr then said that he could not recall what Mr Payne said about the half hour meal break. Mr Darr also gave oral evidence that when he took up the position of operator of the Proofing Machine in 2012, he was told that he could work through his break and leave work half an hour early. Further and tellingly, Mr Darr explained in his oral evidence that Mr Payne was a smoker and during his training on the Proofing Machine Mr Payne took two or three breaks of about 10 to 15 minutes duration each day, during which time he asked Mr Darr to monitor the Proofing Machine, which Mr Darr did. This evidence demonstrates that Mr Darr was aware from the time he commenced working on the Proofing Machine that he could take a break so long as someone else monitored the Proofing Machine during his break.

[17] Initially in his oral evidence Mr Darr denied that he was offered the opportunity to have a break when he worked on the Proofing Machine, but later accepted that he was offered the opportunity to take a break when he worked on the Proofing Machine. Mr Darr says that, on one occasion, Mr Parker, who was working in the task of making up the canvas chemical proofing mixes for the Proofing Machine in the period from 2017 to 2019, made an offer, at about 9am on one morning, that if Mr Darr needed to take a break he would cover the Proofing Machine. In response, Mr Darr says that he told Mr Parker that he would “be right”. Mr Darr accepts that he never asked Mr Parker whether he could monitor the Proofing Machine while he took a break.

[18] Mr Parker gave evidence that he was available at any time to pause from making proofing chemical mixes and work on the Proofing Machine whenever Mr Darr wanted to take a break. Mr Parker says that he made an offer, on about 10 separate occasions, to Mr Darr to work on the Proofing Machine while Mr Darr took a break. Mr Parker says Mr Darr responded to his offers by saying that it was not his job to organise a break, it was the company’s job to do that. Mr Parker replied by saying he had offered and it was up to Mr Darr. Mr Parker also says that, once or twice, he did monitor the Proofing Machine at about lunch time so that Mr Darr could take a half hour meal break.

[19] In his witness statement, Mr Darr stated that, “for the entire time I worked on the Proofing Machine, I took all of my meal breaks at my workstation and I continued to monitor the Proofing Machine while on my break”. 2 In his oral evidence, Mr Darr said that he took a half hour meal break on about three or four occasions during the Relevant Period, but says he could do so because the Proofing Machine was broken down, not running or needed cleaning on those days.

[20] I prefer Mr Parker’s evidence over that given by Mr Darr in relation to the number of occasions on which Mr Parker asked Mr Darr if he wanted to take a break and the one or two occasions on which Mr Parker says he did monitor the Proofing Machine while Mr Darr took a 30 minute break. Mr Parker gave answers in a direct and responsive manner when questioned at the hearing. He readily made concessions which were not in the Respondent’s interest, such as when he accepted that the operator of the Proofing Machine could not take a 30 minute meal break between the first and second ‘run’ unless someone else worked on the Proofing Machine at that time because the delay caused by allowing the Proofing Machine to cool down too much would result in the second ‘run’ not finishing during the shift. Further, unlike Mr Darr and Mr Kelman, Mr Parker does not have an interest in the outcome of this case. Although Mr Parker remains employed by the Respondent, he came across as an independent witness who was prepared to give an unbiased account of any factual matter asked of him.

[21] Mr Parker gave evidence that he did not take his half hour meal breaks when he operated the Proofing Machine because he preferred to finish work half an hour early. Mr Parker also gave evidence that he could get someone such as Mr Prouse to monitor the Proofing Machine in order to take a meal break if he wanted to do so.

[22] Mr Van Haren, who took over from Mr Darr as the operator of the Proofing Machine in 2019, gave evidence that it is possible for him to take a meal break while working on the Proofing Machine, but he prefers to work through his break and leave work half an hour earlier. This evidence is directly inconsistent with Mr Darr’s contention that he told Mr Van Haren when training him in 2019 that he could not take breaks when working on the Proofing Machine. Mr Van Haren denies that Mr Darr made such a statement to him. I prefer Mr Van Haren’s evidence in relation to this disputed conversation. Mr Van Haren’s evidence that he works through his meal breaks because it is his preference to finish work half an hour early, rather than because he is not permitted to take a meal break, was persuasive. He was not challenged on this evidence.

[23] Mr Kelman gave evidence that the Respondent has been using the Proofing Machine since 1993 and, apart from Mr Darr’s claim, has never had an employee saying they could not take a break while operating the Proofing Machine. Mr Kelman also gave evidence that on some days the employee operating the Proofing Machine does take a meal break, but on other days they take up the offer made to them to continue monitoring the Proofing Machine while they have their meal and, in exchange, leave work half an hour early.

[24] I accept that Mr Prouse told Mr Darr that he could take a break by arranging for another employee to monitor the Proofing Machine. That is consistent with the undisputed evidence that the Proofing Machine needs to be monitored when it is operating and other employees have in the past arranged for a worker to monitor the Proofing Machine while they take a break. However, I am not satisfied, on the balance of probabilities, that Mr Prouse told Mr Darr that he would not be able to take a break if another worker did not agree to monitor the Proofing Machine or that the Respondent would not direct any other employee to monitor the Proofing Machine while Mr Darr took a break. Mr Darr’s account of his conversations with Mr Prouse is hearsay. Although such evidence is admissible as an exception to the hearsay rule, 3 the hearsay nature of the evidence impacts the amount of weight I am prepared to give such evidence. It is a remarkable suggestion that an employer would not permit a worker to take a meal break unless another employee agreed and the employer would not direct a worker to provide cover during a meal break. Further, these contentions do not sit comfortably with the evidence that a range of other employees, including Mr Payne, Mr Parker and Mr Van Haren, believed they were able to take breaks while working on the Proofing Machine and the Respondent had employees available, such as Mr Parker, who had experience working on the Proofing Machine and who made numerous offers to Mr Darr to cover him while he took a break.

[25] Mr Darr’s rostered starting time in the Relevant Period was 7am. His rostered finishing time was 3:30pm. There is no dispute that he was entitled to leave at 3pm if he worked through his meal break. There is also no dispute that in the Relevant Period Mr Darr did leave work at 3pm on some occasions when he worked through his meal break and on other occasions he worked until 3:30pm or later because the second ‘run’ on the Proofing Machine had not finished. The number of occasions on which Mr Darr left work at 3pm in the Relevant Period is contested. I do not need to resolve that contest in the context of the current Dispute.

[26] Mr Darr did not bring any claim or make any complaint about not being paid at time and one half for the meal breaks he did not take in the Relevant Period until well after he finished working on the Proofing Machine.

[27] In June 2020, after Mr Darr had raised the current Dispute, the Respondent sent a memorandum dated 26 June 2020 4 to all its staff in relation to the “current arrangements with working through lunch breaks”. Mr Darr signed the memorandum and ticked the following boxes on it:

“26 June 2020

MEMO TO: All Staff

RE: WORKING THROUGH LUNCH BREAKS

Dear All WCT Staff,

We are writing to review our current arrangements with working through lunch breaks, and will value your input on the following issues.

1. SPECIAL FRIDAY ARRANGEMENTS

For a long time now, we have been operating with a special arrangement on Fridays where all workers work through their lunch break, and leave ½ hour earlier. Please ticked a box which best suits your position of this arrangement.

√ I am happy with this arrangement, and happy to see it continue.

□ I would prefer this arrangement to stop, and we stop for lunch breaks and extend Fridays by ½ hour.

2. Working through Lunch Breaks – Monday to Thursdays

Currently this is occasionally required due to machine running times. It is arranged by mutual agreement between a worker and manager. Please ticked a box as to which suit your position:

□ I am happy with this current arrangement.

√ I am not happy with this arrangement and feel it needs to be reviewed.

Name: Darren Darr Signed: [Darren Darr signature]”

[28] Mr Darr also signed the following document prepared by the Respondent: 5

“15 July 2020

WORKING THROUGH MEAL BREAKS – SPECIAL MUTUAL AGREEMENT

This information confirms the conditions of our Special Mutual Agreement between our employees and their manager with regards to Working Through Meal Breaks. These are as follows:

•  Every Friday, all employees agreed to volunteer to work through their meal break, in exchange for finishing their shift ½ hour earlier.

•  For example the normal Friday dayshift would normally be 5:00am to 1:30pm, however it is agreed to work through meal break and operate the shift from 5:00am to 1:00pm. Normal pay rates apply – and there is no overtime between these times. If an employee works past the 1:00pm finish time – over-time pay rates then apply for the additional time which is worked above 8 hrs.

•  The same agreement applies for employees operating continuous running machines between Mondays and Thursdays.

•  For example, the normal daily shift times between Monday and Thursday is 7:00am to 3:30pm. A special mutual agreement results in an employee working through meal break, and in exchange finish their shift ½ hour earlier at 3:00pm. Normal pay rates apply in this instance. The employee works through lunch and finishes after 3:00pm - over time pay rates then apply for the additional time to worked above 8 hours.

•  The company is not forcing employees to work through their meal break. It is a special mutual agreement between the employees and managers, and agreed that this is the most popular decision by the vast majority of our employees to keep offering the special arrangements.

√ Yes, I agree with these terms. □ No, I disagree with these terms.

Name: Darren Darr Signed: [Darren Darr signature]”

Consideration

[29] In my view, the evidence supports a finding that the agreement made between Mr Darr and the Respondent concerning Mr Darr working through his 30 minute meal break was an agreement whereby Mr Darr could work through his 30 minute meal break, and if he did so, he would be entitled to leave work 30 minutes early; it was not an agreement whereby Mr Darr was required to work during his meal break to monitor the Proofing Machine. My reasons for making this finding are as follows. First, Mr Darr claims that he made the relevant agreement not with his supervisor, Mr Prouse, but with the person who trained him, Mr Payne. Mr Darr does not say that the agreement was recorded in writing. He relies on oral communications with Mr Payne in 2012. Mr Darr’s evidence in relation to those oral communications was somewhat inconsistent and contradictory. In his witness statement, Mr Darr claimed that Mr Payne told him that “workers assigned to the Proofing Machine did not get to take breaks, including meal breaks, because the Proofing Machine required constant monitoring.” In his oral evidence, Mr Darr said that he could not recall what Mr Payne said about the half hour meal break. Further, Mr Darr said at the conclusion of his oral evidence that the offer from the Respondent when he took on the position of operator of the Proofing Machine in 2012 was that he could work through his break and leave half an hour early. This is quite different from saying that “workers assigned to the Proofing Machine did not get to take breaks”.

[30] Secondly, although Mr Darr said in his witness statement that that, “for the entire time I worked on the Proofing Machine, I took all of my meal breaks at my workstation and I continued to monitor the Proofing Machine while on my break”, 6 Mr Darr gave oral evidence that he took a half hour meal break on about three or four occasions during the Relevant Period, albeit he says he could do so because the Proofing Machine was broken down, not running or needed cleaning on those days. In addition, I have found, for the reasons given above, that on one or two occasions Mr Parker monitored the Proofing Machine at about lunch time so that Mr Darr could take a half hour meal break. This evidence demonstrates that Mr Darr was not required to, and did not, take his meal at his workstation at all times when he was the operator of the Proofing Machine.

[31] Thirdly, when Mr Darr says that he asked Mr Prouse if another worker could monitor the Proofing Machine while he took a meal break, Mr Prouse did not deny the request. Mr Prouse said that another worker would be needed to monitor the Proofing Machine while Mr Darr took his break. That is consistent with the need to constantly monitor the Proofing Machine when it is in operation. On about 10 occasions Mr Parker offered to monitor the Proofing Machine so that Mr Darr could take a break. On almost all of those occasions Mr Darr did not take up the offer and he never approached Mr Parker to request that he monitor the Proofing Machine while he took a meal break. This evidence suggest that it was Mr Darr’s choice to have his meal at his workstation while he continued to monitor the Proofing Machine.

[32] Fourthly, Mr Darr says that he made an agreement with Mr Payne in 2012, the result of which was that he was entitled to be paid at the rate of time and one half for the meal breaks he did not take, yet he made no claim of such an agreement or for such payment until well after he finished working on the Proofing Machine in 2019. No credible explanation was provided for this significant delay.

[33] Fifthly, I have not found the memoranda from the Respondent to Mr Darr (and other employees) dated 26 June 2020 and 15 July 2020 and signed by Mr Darr to be of any significant assistance in resolving the present Dispute. First, those written communications were prepared about eight years after the agreement with Mr Darr was made in 2012 and after Mr Darr made his complaint about non-payment of his alleged entitlement under clause 5.5 of the Agreement. Secondly, the language in the memoranda is somewhat equivocal. For example, the 26 June 2020 memorandum refers to working through lunch breaks from Monday to Thursday to be “occasionally required due to machine running times”, but it also states that the arrangement is by “mutual agreement between a worker and a manager”. The nature or content of the agreement is not disclosed. The 15 July 2020 memorandum contends that “all employees agree to volunteer to work through their meal break, in exchange for finishing their shift ½ hour earlier” and the “same agreement applies for employees operating continuous running machines between Mondays and Thursdays”, and later states “if a special mutual agreement results in an employee working through meal break …”

[34] Finally, it is to Mr Darr’s credit that he had his meal at his workstation so often during the Relevant Period for the purpose of allowing him to continue monitoring the Proofing Machine. It is clear from Mr Darr’s evidence that he took his role as operator of the Proofing Machine very seriously and he was eager to do his best to ensure the quality of product produced by the Respondent was of the requisite standard. The Respondent clearly appreciated Mr Darr’s efforts in that regard. Notwithstanding Mr Darr’s good and honourable reasons for taking his meal at his workstation so often during the Relevant Period, it is the reason for Mr Darr’s conduct in that regard that is the key issue in this case. On the evidence adduced, I find that Mr Darr was not required to work through his 30 minute meal break and there was no agreement to that effect, rather Mr Darr chose to take his meal at his workstation so that he could hopefully leave work early and to ensure the quality of product was at the requisite standard.

Conclusion

[35] For the reasons given, I determine that the answer to the question for arbitration is “no”. That is, Mr Darr did not, at any time, enter into a mutual agreement with the Respondent whereby he was required to work during his meal break to monitor the process in his control such that he was entitled to be paid at the rate of time and one half for the period of the break in accordance with clause 5.5 of the Agreement. It follows that, in respect of the Relevant Period, Mr Darr does not have any entitlement to receive a payment from the Respondent under clause 5.5 of the Agreement.

DEPUTY PRESIDENT

Appearances:

Mr P Nicholls, Industrial Officer of the CFMMEU, for the Applicant
Mr J Kelman for the Respondent

Hearing details:

2020.
Newcastle (by video conference):
9 December.

Printed by authority of the Commonwealth Government Printer

<PR725424>

 1   Ex A1 at [4]

 2   Ex A1 at [11]

 3   Section 87 of the Evidence Act

 4   Ex R4

 5   Ex A2

 6   Ex A1 at [11]