Durnford v Allen Taylor and Company

Re: RUSSELL FRANCIS DURNFORD
And: ALLEN TAYLOR AND COMPANY LIMITED
No. I18 of 1989
FED No. 474
Industrial Law
34 IR 423

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Wilcox J.(1)

CATCHWORDS

Industrial Law - Alleged breaches of industrial award - Proceeding brought after commencement of Industrial Relations Act but in respect of breaches prior to that commencement - Applicability of the Industrial Relations Act - Two persons employed to tend a boiler used to manufacture steam for seasoning of timber - Proper classification of employees under award - Employers able to eat meal whilst at work but with no structured meal break - Whether breach of requirement to allow a meal break - Short payment of annual holiday pay and loading.

Industrial Relations Act 1988, ss.147, 148, 178

Industrial Relations (Consequential Provisions) Act 1988, ss.4, 83(2)

Acts Interpretation Act 1901, s.8

Conciliation and Arbitration Act 1904, ss.58, 59, 119

Timber Industry Consolidated Award, cll.4, 17, 18, 21

HEARING

SYDNEY

#DATE 5:9:1990

Counsel for the applicant: C. Simpson, QC and G.T. Johnson

Solicitors for the applicant: Australian Government Solicitor

Counsel for the respondent: J.N. Gallagher

Solicitors for the respondent: Murphy and Moloney

ORDER

Declares that the respondent committed breaches of sub.cl.(d) of cl.4 of the Timber Industry Consolidated Award 1974 ("the Award") in that it failed to pay its employee Kevin John Warren the rate prescribed for a person performing the duties of a boiler attendant (fireman) in New South Wales, for duties performed in the pay periods ending 4 November 1985, 18 December 1985 and 15 January 1986.

Declares that the respondent committed breaches of sub.cl.(d) of cl.4 of the Award in that it did fail to pay to its employee John Henry Maynes the prescribed rate for a person performing the duties of a boiler attendant (fireman) in New South Wales, for duties performed in the pay periods ending 24 July 1985 and 15 January 1986.

Declares that the respondent committed breaches of sub-cl.(d)(ii) of cl.18 of the Award in that it did require its employee Kevin John Warren to work in excess of five hours of the afternoon shift on 19 September 1985 and 20 September 1985 without allowing the employee a meal break of not less than 20 minutes as prescribed.

Declares that the respondent committed breaches of sub.cl.(d)(ii) of cl.18 of the Award in that it did require its employee John Henry Maynes to work in excess of five hours of the afternoon shift on each of 22 July 1985, 23 July 1985 and 24 July 1985 without allowing the employee a meal break of not less than 20 minutes as prescribed.

Declares that the respondent committed breaches of sub.cl.(kk)(1)(b) of cl.21 of the Award in that it did fail to pay its employee Kevin John Warren the correct amount by way of loading as calculated at the rate prescribed for annual leave entitlement payable to the employee during the close down of the respondent's premises during Christmas 1985.

Declares that the respondent committed a breach of sub.cl.(kk)(1)(b) of cl.21 of the Award in that it did fail to pay its employee John Henry Maynes the correct amount by way of loading as calculated at the rate prescribed for annual leave entitlement payable to the employee during the close down of the respondent's premises during Christmas 1985.

Declares that the respondent committed a breach of sub.cl.(m)(2) of cl.21 of the Award in that it did fail to pay, prior to the close down of the respondent's premises for Christmas 1985, to its employee Kevin John Warren the amount for annual leave prescribed for each week of service completed by the employee from 15 April 1985 to 31 December 1985 for which leave had not already been given during that period.

Declares that the respondent committed a breach of sub.cl.(m)(2) of cl.21 of the Award in that it did fail to pay, prior to the close down of the respondent's premises for Christmas 1985, to its employee John Henry Maynes the amount for annual leave prescribed for each week of service completed by the employee from 30 April 1985 to 31 December 1985 for which leave had not already been given during that period.

Declares that the respondent committed a breach of sub.cl.(m)(2) of cl.21 of the Award in that it did fail to pay its employee Kevin John Warren the correct amount, calculated at the rate as provided by sub.cl.(k) of cl.21 of the Award, prior to his going on leave during the close down of the respondent's premises for Christmas 1985.

Declares that the respondent committed a breach of sub.cl.(m)(2) of cl.21 of the Award in that it did fail to pay its employee John Henry Maynes the correct amount, calculated at the rate as is provided by sub.cl.(k) of cl.21 of the Award, prior to his going on leave during the close down of the respondent's premises for Christmas 1985.

Imposes a penalty in the total sum of seven hundred and fifty dollars ($750) in respect of the breaches referred to in paras.1 and 2 hereof.

Imposes a penalty in the total sum of five hundred dollars ($500) in respect of the breaches referred to in paras.3 and 4 hereof.

Imposes a penalty in the total sum of two hundred and fifty dollars ($250) in respect of the breaches referred to in paras.5 to 10 hereof.

Orders that each of the said penalties be paid to the applicant Russell Francis Durnford within one month.

Orders that, within one month, the respondent pay to Kevin John Warren the sum of five hundred and thirty three dollars and seventy three cents ($533.73).

Orders that, within one month, the respondent pay to John Henry Maynes the sum of four hundred and eighty one dollars and seventy eight cents ($481.78).

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. (See also Order 37 rule 2(3)).

JUDGE1

This is an application by an authorised inspector under the Industrial Relations Act 1988 seeking the imposition of penalties upon an employer for breaches of the Timber Industry Consolidated Award. The application is brought under s.178 of the Industrial Relations Act 1988 which relevantly provides:

"178(1) Subject to section 182, where an organisation or person bound by an award or an order of the Commission breaches a term of the award or order, a penalty may be imposed by the Court or, except in the case of a breach of a bans clause, by a court of competent jurisdiction.

(2) Subject to subsection (3), where:

(a) 2 or more breaches of a term of an award or order are committed by the same organisation or person; and

(b) the breaches arose out of a

course of conduct by the organisation or person; the breaches shall, for the purposes of this section, be taken to constitute a single breach of the term.

(3) ...

(4) The maximum penalty that may be imposed under subsection (1) for a breach of a term of an award or order is:

(a) where the penalty is imposed by the Court:

(i) if the breach is taken to have been committed under a provision included in an award or order under paragraph 111(1)(e) - $500; and

(ii) in any other case - $1000; and

(b) where the penalty is not imposed by the Court - $500.

(5) A penalty for a breach of a term of an award or order may be sued for and recovered by:

(a) an inspector;

(b) a party to the award or order;

(c) a member of an organisation who is affected by the breach;

(d) an organisation that is

affected, or any of whose

members are affected, by the breach; or

(e) an officer of an organisation that is affected, or any of

whose members are affected, by the breach where the officer is authorised, under the rules of the organisation, to sue on

behalf of the organisation.

(6) Where, in a proceeding against an employer under this section, it appears to the court concerned that an employee of the employer has not been paid an amount to which the employee is entitled under an award or order, the court may order the employer to pay to the employee the amount of the underpayment.

(7) An order shall not be made under subsection (6) in relation to so much of an underpayment as relates to any period more than 6 years before the commencement of the proceeding.

(8) A proceeding under this section in relation to a breach of a term of an award or order shall be commenced not later than 6 years after the commission of the breach.

(9) In this section: 'court of competent jurisdiction' means:

(a) a District, County or Local Court; or

(b) a magistrate's court."

The application of s.178

The case relates to events which occurred in 1985 and 1986, before the commencement of the Industrial Relations Act. A question immediately arises whether s.178 is applicable to breaches of awards which are claimed to have occurred before the Act commenced. Curiously, neither the Industrial Relations Act itself nor the Industrial Relations (Consequential Provisions) Act 1988 expressly deals with the matter. But s.83(2) of the Consequential Provisions Act assumes that it is possible to launch a proceeding under the Industrial Relations Act in respect of a breach committed before that Act came into force. That subsection provides that "the power of an inspector under section 178 of the Industrial Relations Act to institute a proceeding in relation to a breach of a term of an award or order extends to a breach that occurred before the commencement". The word "commencement" is defined in s.4 of the Consequential Provisions Act to refer to the date of establishment of the Australian Industrial Relations Commission, which was 1 March 1989.
Although there is a presumption that a statutory provision operates only prospectively, this is merely a presumption. If the Parliament, either expressly or by implication, indicates that a provision is to operate retrospectively and it is in terms apt for that purpose, it must be so applied. Section 178 is not in terms inapt to a breach which occurred before 1 March 1989. It contains its own time limit for a proceeding without further qualification; namely, six years after the date of the breach: see subs.(8). Having regard to that provision, but more especially to the terms of s.83(2) of the Consequential Provisions Act, it seems to me that the better view is that the section was intended to apply to breaches of awards before 1 March 1989, provided that those breaches occurred within six years before the proceeding was commenced.
The effect of the substitution of s.178 of the Industrial Relations Act for the equivalent provision in the Conciliation and Arbitration Act 1904 (s.119) has previously been considered by at least two judges of this Court. In Australian Bank Employees Union v Australia and New Zealand Banking Group Limited (12 September 1989, not reported) von Doussa J dealt with an application for penalties which was commenced on 14 March 1989 but which arose out of the dismissal of an employee on 28 October 1988. His Honour noted that, at that time, an application could have been made under s.119 of the Conciliation and Arbitration Act; but that this Act was repealed before the proceeding was commenced. At the date of repeal there was no proceeding in existence. Accordingly, s.67 of the Consequential Provisions Act - which enables the completion of a s.119 proceeding commenced before the repeal - was not applicable. Von Doussa J held that the proceeding could not be brought under s.178 of the Industrial Relations Act, but that s.8(c) of the Acts Interpretation Act 1901 applied to the case. That paragraph provides that, subject to any contrary intention appearing, the repeal of an Act does not "affect any right privilege obligation or liability acquired accrued or incurred" under the repealed Act. His Honour said:

"There can be no doubt that if a breach of the Award as alleged had occurred on or about 28 October 1988 Ms Guy and the applicant thereupon acquired rights under s.119 of the previous Act and the respondents incurred corresponding obligations. The question, however, is whether the Industrial Relations (Consequential Provisions) Act 1988 discloses a contrary intention so as to oust the operation of s.8 of the Acts Interpretation Act 1901."

Von Doussa J went on to consider the comments of Gray J in Poletti v Ecob (not reported, 8 June 1989) upon the question whether the enactment of the Consequential Provisions Act should be taken as a manifestation of a contrary intention, for the purposes of s.8(c). Concluding that it should not, von Doussa J held that the proceeding before him was "validly brought in pursuance of a right under s.119 of the Conciliation and Arbitration Act 1964 which is preserved by s.8 of the Acts Interpretation Act 1901".
The approach taken by von Doussa J was followed by Gray J in Clothing and Allied Trades' Union of Australia v J J Saggio Clothing Manufacturers Pty Ltd (not reported, 9 August 1990). But, with respect to both my learned colleagues, I admit to some hesitation about that approach. There is a question in my mind whether the entitlement of a person to bring a proceeding under s.119 may properly be regarded as a "right accrued" under s.8(c): see the cases referred to in Pearce "Statutory Interpretation in Australia", 3rd edition at paras.6.8 and 6.9, especially Abbott v Minister for Lands (1895) AC 425. This doubt is increased by the fact that the draftsman of the Act thought it necessary to insert para.(d) in s.8, referring to repeal not affecting "any penalty forfeiture or punishment incurred in respect of any offence committed against any Act so repealed". This provision suggests that an entitlement to exact a penalty is not a "right accrued" for the purposes of s.8(c); although, of course, para.(d) does not apply to this case because the relevant "offence" was a breach of an award rather than a contravention of the repealed Act.
The reason why von Doussa J thought s.178 to be inapplicable was that he found "nothing to suggest the presumption against retrospectivity, which is to be applied strictly where the enactment attaches penal consequences, is not to apply". But his Honour does not appear to have been referred to s.83(2) of the Consequential Provisions Act. Having regard to that provision, it seems to me that s.178 was intended to apply to breaches of awards which occurred before the commencement of the Industrial Relations Act.
The difference between von Doussa J and myself is a matter of only academic interest. Although we reach the conclusion by different routes, we agree that the Court has power to determine a proceeding commenced after 1 March 1989 in respect of a breach of an award alleged to have been committed before that date. In the present proceeding the respondent did not contend otherwise.
The facts
The application alleges twelve breaches of the award, six each in respect of two employees, Kevin John Warren and John Henry Maynes. Each pair of allegations is in similar terms except for the name of the employee. Mr Warren and Mr Maynes were each employed by the respondent at its sawmill near Coffs Harbour on the New South Wales north coast. Each is a qualified boiler attendant holding a Certificate of Competency issued by the Engine Drivers and Boiler Attendants Examination Board under the Factories, Shops and Industries Act 1962 (NSW).
In April 1985, Mr Maynes read an advertisement published in the "Coffs Harbour Advocate", a local newspaper, by the Commonwealth Employment Service. This advertisement contained details of jobs currently available through the Service. Included amongst the list of available positions was one for "two qualified boiler attendants" to operate "a colonial fired boiler", shift work being involved. As a result of reading the advertisement, Mr Maynes contacted David Lovett, an administration clerk employed at the sawmill. He was interviewed and employed.
Mr Warren was employed at about the same time, he having become aware of the vacancy through seeing an advertisement in another local newspaper, the Grafton "Daily Examiner". He also was interviewed by Mr Lovett.
At the interviews each of the men was asked about his qualifications as a boiler attendant. In each case the interviewee produced his Certificate of Competency for inspection. In one case, at least, a photocopy of the certificate was taken for the respondent's file.
At that time there were about 65 employees at the mill. Generally, the mill worked only a single shift finishing at 3.30pm. However, the boiler was operated from about 6am to 9pm, its primary purpose being the supply of heat to a kiln used for the seasoning of timber. In order to accommodate the lengthy period of daily operation, Mr Maynes and Mr Warren worked shifts. The morning shift started at 6am and finished at 1.36pm. The afternoon shift ran from 1.36pm to 9.15pm. The men each worked five days a week, alternating their shifts between themselves on a weekly basis.
The pattern of daily work was that, upon arrival at 6am, the attendant who worked the morning shift opened the water valves and lit the boiler. He had to check the taking up of water to ensure that the level was correct as the boiler built up steam. This process took about one hour, after which the attendant made steam available for the kiln, which was located in the adjoining room. Whilst the kiln was operating, the attendant was required to supervise the operation of the boiler. This involved constant checking of water and steam levels and the flow of the wood shavings which fuelled the fire. Apparently, there were often blockages in the fuel line which had to be cleared. In addition, the attendant was responsible for the general maintenance of the boiler and the tidiness of the boiler room. Towards the end of the afternoon shift the attendant was required to shut down the boiler for the day.
Under State law, a boiler of this type was required to be constantly supervised by a certificated boiler attendant. Both Mr Maynes and Mr Warren were aware of that requirement and I am satisfied that each of them regarded himself as being obliged to maintain constant supervision of the boiler. I accept that, in practice, both Mr Maynes and Mr Warren spent most of their working hours in the boiler room, leaving it only to go to the toilet or to get some article or equipment required in connection with their duties. There was a bench in the boiler room which the attendant was entitled to use for the purpose of taking a meal, although sometimes the bench was unavailable because it was being used by another employee for work purposes. But, whether or not he chose to use the bench, the attendant had his meal in or near the boiler room, in a position where he could see the boiler gauges. He took his meal at a time of his own choice. When the attendant was working morning shift, that time might overlap the lunch break taken by the bulk of the employees but sometimes did not. There is evidence that the general lunch break provided the best opportunity of carrying out some types of maintenance activities.
Classification of employees
The first pair of breaches alleged against the respondent, in sub-paras. (a) and (b) of para.1 of the amended statement of claim, is the failure to pay the two men the rate prescribed, by cl.4(d) of the award, for a person performing the duties of a boiler attendant (fireman) during specified periods in 1985 and 1986. The validity of these allegations depends upon the proper classification of Mr Maynes and Mr Warren under the award. The award contains a schedule which assigns particular employee classifications to one of ten different groups. Different wage rates are fixed for each group.

The respondent paid Mr Maynes and Mr Warren on the basis that they were each employed in the classification listed in the schedule as "Kiln attendant (as defined)". The relevant definition reads "an employee who attends fires and boilers and reads records and maintains temperatures". The award also refers to a classification styled "Boiler attendants (firemen)". Employees within that classification are entitled to the rates of pay prescribed by the Engine Drivers and Firemen's (General) Award. At relevant times, those rates were slightly higher than for "kiln attendants (as defined)". The words "Boiler attendants (firemen)" are not defined under either award.
The parties agree that Mr Maynes and Mr Warren fell under one or other of these classifications, but they do not agree upon the relevant classification. The applicant contends that they were "boiler attendants (firemen)", the respondent submits that they fell within the definition of kiln attendants.
I do not think that the two employees fell within the definition of "kiln attendant". They did attend a fire and a boiler, but they did not read records or maintain temperatures. They did maintain the boiler pressure and this, no doubt, was dependent upon there being a sufficient fire temperature. But the concluding words of the definition are not really apposite to their duties.
The classification refers to kiln attendant, as defined. If the duties of a particular employee do not answer the definition, that employee falls outside the classification. Accordingly, it is not really necessary to consider whether these two men answered the description of kiln attendants, within the ordinary meaning of that term; although I note that they did not in fact attend the kiln. Its operation was supervised by others.
As I have said, the term "boiler attendants (firemen)" is not defined. The words must be given their ordinary meaning, as referring to persons whose job it is to attend a boiler and look after a fire. These words accurately describe the duties of Mr Maynes and Mr Warren. Although the matter is not conclusive, this "ordinary English" approach to the problem is supported by the circumstance that, when interviewed for the job, each man was asked about his qualifications as a boiler attendant.
Having regard to all of these matters, I am of the opinion that both of the men should have been classified as boiler attendants (firemen) rather than as kiln attendants. It is agreed that they were paid as kiln attendants, their rate of pay being less than that appropriate to boiler attendants (firemen). It follows that there was a breach of the award in respect of each of the first pair of complaints.
Meal breaks
A considerable amount of evidence was given about the opportunities available to Mr Maynes and Mr Warren to take meal breaks. I have already made some reference to this matter. By way of elaboration, I find that, on many shifts, the men had the opportunity to sit down and eat an uninterrupted meal. Indeed, it was common for the men to have lengthy periods of time during which they had no pressing duties, when they were able to eat a leisurely meal and possibly read a newspaper or a book. There seems to have been a considerable variation in the extent of the work required to be done from one shift to another.
However, it is equally clear that there was never a defined break, during which the attendants were free to do as they wished. Although they always had some opportunity to eat lunch, often at a leisurely pace, they never had a "lunch break"; a period of time during which they were free to leave the boiler room and chat to other workers or even leave the premises altogether on business of their own. Exemplifying the principle "They also serve who only stand and wait", they were always on duty.
Although the facts relating to meal breaks are clear, the award provisions are not. The Timber Consolidated Award was made in 1970. It was extensively amended in 1974. As so amended, the award contained cl.17, headed "Hours", and cl.18, headed "Shift work". It is not necessary to refer to the detail of these provisions because both clauses were again amended before the presently relevant dates; cl.17 on two occasions. The amendments were effected in a rather curious way. On 20 February 1984, a Full Bench of the Conciliation and Arbitration Commission made an order by which it varied the award, along with other awards, by amending cl.17, by inserting new cll.17A and 17B relating to a 38 hour week and by substituting a new cl.18, still headed "Shift work". The Full Bench ordered that, with one immaterial exception, the order should come into force from the beginning of the first pay period to commence on or after 20 February 1984 and should remain in force for a period of twelve months from that day.
However, on 4 May 1984, Deputy President Isaac further varied the award. His variations included the substitution of a new cl.17 - now entitled "Hours - other then shiftworkers". Clauses 17A, 17B and 18 were left unchanged. By order B of his formal order, the Deputy President ordered that the variation order "shall come into force from the beginning of the first pay period to commence on or after 14 October 1983 and shall remain in force for a period of six months."
On its face, the last mentioned order is curious. The amendments made on 14 May 1984 included detailed provisions on working hours, lunch breaks etc which differed from those in force both in October 1983 and immediately after the February order. The parties could not retrospectively adjust their conduct. Perhaps the intention was that they retrospectively adjust payments. Secondly, the variation order was made almost seven months after the date of its commencement. Yet it was expressed to remain in force for a period of only six months; on its face, it would have no prospective operation at all. But the effect of ss.58 and 59 of the Conciliation and Arbitration Act was that the variations would continue in force indefinitely, until there was some further order of the Commission. (The confusing practice of including in an award a statement that it is to operate for only a limited term, but by statute making the award continue indefinitely, has been perpetuated by ss.147 and 148 of the Industrial Relations Act. This seems to me unfortunate. Awards should be clear and accurate on their face; their comprehension should not be restricted to the initiated.)
For present purposes the significance of order B is that it creates a question as to which were the relevant operative provisions in 1985 and 1986. Counsel for the respondent contends that the February award then applied, his reason being that its "operative date" was later than that of the May award. I do not think that this is correct. It seems to me that the submission stems from some confusion in the use of the words "operative date". The February order took effect when it was made, operating only prospectively. The May order was given an operation retrospective to October, but it also took effect only on the day when it was made. It was a later decision of the Commission, having the effect of varying the position as laid down by the February decision. By virtue of s.59 of the Conciliation and Arbitration Act that decision continued to apply during the period of employment of Mr Maynes and Mr Warren in 1985 and 1986. The matter of meal breaks must be considered by reference to the May amendments.
As already indicated, a new cl.17 was inserted in May. That new clause relevantly provided:

"17 - HOURS - OTHER THAN SHIFTWORKERS Ordinary hours of work

(a) Subject to the exceptions hereinafter provided, the ordinary working hours shall not exceed 40 per week throughout the industry, provided that where employees are employed in a mixed industry (as defined) their hours of work shall be uniform with those prevailing in such industry.

Fixing the ordinary hours of work

(b) (i) The ordinary hours of work shall be such as may be agreed upon by a majority of the employees and the employer concerned in any business and approved of by the State Branch of the union. In default of any such agreement and approval such hours shall be worked within five days of not more than eight consecutive hours each, exclusive of lunch breaks, between the following spread of hours: 7.00 a.m. and 5.30 p.m. on Monday to Friday inclusive.

(ii) The usual ordinary hours of work once fixed shall not be altered, excepted by agreement as provided by paragraph (i) of this clause, without at least seven days' notice to the employees and the State Branch of the union.

Work outside ordinary hours of work

(c) All time worked before or after the usual ordinary hours of work, fixed by agreement or otherwise, shall be paid for in accordance with subclause 19(a) of this award.

Lunch break

(d) (i) One hour or such other time as may be agreed upon shall be allowed for a lunch break provided that an employee shall not be required to work more than five ordinary hours without a break for a meal.

(ii) Except as provided in paragraph (iii) hereof, all work done during an employee's lunch break shall be paid for at double time rates of pay. For work performed thereafter until a lunch break is allowed time and one-half rates shall be paid.

(iii) Except in the case of an emergency, an employee's lunch break, once fixed, shall only be altered by mutual agreement or by at least seven days' notice of the intended change being given to the employees and the State Branch of the union.

Shiftworkers

(e) The hours for shiftworkers shall be as prescribed by clause 18 of this award. Exceptions

(f) ...

(g) ...

(h) ..."

Clause 18 was not affected by the May amendments. The clause which had been inserted in February remained in place. That clause is lengthy but it contained the following relevant provisions:

"18 - SHIFT WORK

Where it is necessary that work be performed in shifts, the following conditions shall apply:

(a) (i) The method of working shifts shall be agreed between the employer, the majority of the employees concerned and the State Branch of the union. If agreement is not reached the matter may be referred to a Board of Reference for determination.

(ii) In the event of a day worker

commencing afternoon or night shift work at the instruction of the employer without seven days' notice the employer shall pay time and one-half rates for all ordinary time worked until such seven days' notice would have expired. Such extra rate shall be in substitution for the shift allowance.

Definitions

(b) For the purpose of this clause:

(i) 'Afternoon shift' means any shift finishing after 6.00 p.m. and at or before midnight.

(ii) 'Continuous work' means work carried on with consecutive shifts of persons throughout the 24 hours of each of at least six consecutive days without interruptions except during breakdowns or meal breaks or due to unavoidable causes beyond the control of the company.

(iii) 'Night Shift' means any shift finishing subsequent to midnight and at or before 8.00 a.m.

(iv) 'Rostered shift' means a shift of which the employee concerned has had at least 48 hours' notice.

Hours - continuous shift work

(c) ...

Hours - other than continuous work

(d) (i) Subject to clauses 17A and 17B the ordinary hours of shift workers not on continuous work, as defined in subclause (b) hereof, shall average 38 hours per week and shall not exceed 152 hours in 28 consecutive days. The ordinary hours prescribed herein may be worked on any day or all of the days of the week, Monday to Friday inclusive.

(ii) Such ordinary hours shall be worked continuously except for a meal break which shall not be counted as time worked.

One hour or such other time as may be agreed upon, which shall not be less than twenty minutes, shall be allowed for a meal break which, once fixed, shall only be altered, except in an emergency, by mutual agreement or in the absence of agreement by at least seven days' notice of the intended change given to the employees and the State Branch of the union. An employee shall not be allowed to work more than 5 hours without a meal break. Where in any establishment the ordinary hours of work are worked on the basis of four days of eight ordinary hours and one day of six ordinary hours within a work cycle of one week, by agreement between the employer and the majority of employees concerned the six ordinary hour day may be worked without a meal break.

(iii) Except at regular change-over of shifts an employee shall not be required to work more than one shift in each 24 hours."

The work performed by Mr Maynes and Mr Warren was not "continuous work", within the definition in cl.18(b). The period of work of the one of them terminating at 9.12pm was an "afternoon shift" within the definition. There is no definition of "shiftworker" but counsel for the respondent argues that, on either shift, each employee was a shiftworker, within the ordinary meaning of that word; so cl.18 applies to both men, whatever their shift, at all material times. As cll.17 and 18 are mutually exclusive, counsel contends, there can be no question of a breach of cl.17.
Counsel for the applicant accept that cl.18 applied whenever one of the employees was rostered to the afternoon shift. He was then on "afternoon shift", as defined. They say that, on such occasions, there was a breach of subcl.(d)(ii) in that no "meal break" was allowed. They seek the imposition of a penalty in respect of each of those breaches. But they also contend that, when the employee was working from 6am to 1.36pm he was a day worker, not a shiftworker, so that his entitlements were governed by cl.17 rather than cl.18. The practical effect of that submission is that the respondent would not merely be liable to a penalty for breaching the requirement to allow a lunch break - see cl.17(d)(i) - but would also be subject to an obligation to pay the employees at double time rates for lunch breaks not provided - see cl.17(d)(ii).
I think that each of these employees was a "shiftworker" within the ordinary meaning of that word, including when working from 6am to 1.36pm. It is true that this period would be a "day shift" and that cl.18 does not contain a definition of "day shift". But this is because it was unnecessary to provide such a definition. The concepts of "afternoon shift" and "night shift" were only important for provisions dealing with people working outside usual hours; for example cl.18(a)(ii). The day shift substantially corresponds with the working hours of an ordinary day worker.
Although the drafting of the two clauses leaves something to be desired, I think that it is tolerably plain that the hours and meal break entitlements of people who answer the description of "shiftworker" are regulated by cl.18, not by cl.17. Accordingly, I reject the allegations made in sub.paras (c) and (d) of para 1 of the amended Application, wherein the applicant alleges a failure to pay each of the two employees for time worked during their lunch breaks. These allegations depend upon the application to the case of cl.17. On the other hand, I find that the applicant has made out its allegations, in sub.paras (e) and (f) of para 1, of contraventions of cl.18(d)(ii) of the award.
Annual leave
Clause 21 of the award deals with annual leave. Sub-clause (m) envisages a close down of the plant for the purpose of allowing leave to employees. The amount of the leave due to each employee, at close down, depends upon the number of months of continuous service of that employment for which leave has not already been taken. Additionally, each employee is entitled to a loading of 17 1/2 percent of his specified wages. The evidence establishes that the respondent closed down the subject mill for a period over Christmas 1985, whilst Mr Maynes and Mr Warren were employed there. Three pairs of allegations are made regarding their annual leave entitlements. First, it is said that the respondent miscalculated - in each case to the employee's disadvantage - the number of hours leave to which Mr Maynes and Mr Warren were entitled. This is conceded, the error being 0.975 hours in the case of Mr Maynes and 3.87 hours for Mr Warren. This is the matter dealt with by sub.paras (k) and (l) of para.1 of the amended statement of claim. These breaches are proved.
The respondent's miscalculations as to the amount of leave due to each of the employees naturally resulted in an underpayment of holiday pay to them. The underpayment was compounded by the incorrect classification of the employees, as kiln attendants rather than boiler attendants (firemen). Upon the basis that they should have been classified as boiler attendants (firemen), it is agreed that Mr Maynes was short paid $41.80 and Mr Warren $62.41. These short payments are the subjects of the allegations in sub.paras (i) and (j) of para 1 of the amended statement of claim, which allegations are proved.
The respondent did pay a 17 1/2 percent loading on the amount calculated to be due to Mr Maynes and Mr Warren. But, of course, any miscalculation of the annual leave payment itself would flow through to the loading. Mr Maynes' loading was $7.32 less than it should have been, Mr Warren's $10.92. These short payments are alleged in paras.(g) and (h) of sub.para.1 of the amended statement of claim. They also are proved.
Orders
Affidavits have been sworn by several persons having executive responsibility, at various levels, for the sawmill. In these affidavits the deponents assert that they were unaware of the breaches which I have found proved. In particular, they say that they believed that the two men were properly classified as kiln attendants. The deponents claim to be unaware of any complaint, either as to the proper classification of the men or the lack of proper meal breaks. Mr F G Day, the Manager of Forest Resources for Boral Timber Division, which Division includes the respondent company, said that, when these matters were raised with him by the applicant, he spoke to Gavin Hillier, Secretary of the Australian Timber Workers' Union, who informed him that the union was happy with both the job classification and meal break arrangements made by the company.
I accept all of this evidence. It seems that the breaches of the award were all inadvertent. There is nothing to suggest an intention to exploit the two employees. Nonetheless, it is the duty of employers to ensure that employees are properly classified and that employee entitlements are actually provided. Rarely will an individual employee have resources of information and access to advice commensurate with those of an employer. In many cases, no doubt, the scales will be evened by union assistance; but, as this case demonstrates, not all union officials can be relied upon diligently to protect their members' interests. The facts that there was no complaint and that, when asked, the union secretary expressed satisfaction with the position are matters to be taken into account in favour of the respondent. But they do not absolve the respondent, as the employer, from its ultimate responsibility. It would be inappropriate for me to refrain altogether from imposing a penalty, as suggested by counsel for the respondent.

So far as appears, there has been no previous occasion upon which the respondent has been found to have contravened an industrial award. This is a factor to be taken into account in mitigation of penalties.
I think that each of the pairs of breaches which I have found proved should be taken to constitute a single breach of the relevant term of the award: see s.178(2) of the Industrial Relations Act. The relevant maximum penalty for each breach is $1000.
The failure to correctly classify and pay the two employees is, in my opinion, a significant matter. I accept that there are two competing classifications and that the error was inadvertent; but I think that it would have required little thought for the respondents' officers to realise that the classification of "kiln attendant" was inappropriate. In respect of this pair of breaches I impose a penalty of $750.
In relation to the second pair of breaches, those referred to in sub.paras (e) and (f) of para.1 of the amended statement of claim, once again it is appropriate to treat them as a single breach.
As my earlier comments will have indicated, it is not easy to pick one's way through the various amendments of cll.17 and 18 of the award or to determine their application. If the respondent's breaches arose out of an incorrect choice between those clauses, I would be inclined to regard them as non-culpable and properly punishable by only a nominal penalty. But both cl.17 and cl.18 require a structured meal break. In culpability terms it does not matter which clause was thought to apply. Any proper attention to the award would have alerted the respondent to the need to make arrangements for such a break.
On the other hand, it appears that the two employees did usually have an opportunity to eat an uninterrupted meal. The breaches occasioned them no financial loss. Having regard to the whole of the circumstances, it is sufficient to impose a penalty of $500 in relation to these two breaches.
The remaining six breaches may be dealt with together. To a large extent they are consequential upon the earlier breaches, the exception being the under-calculation of the number of hours leave to which the employees were entitled. This mistake was unfortunate, but it was the product of carelessness rather than any attempt to exploit the men. The sums of money involved were comparatively small. I think that a total penalty of a further $250 adequately reflects the respondents' culpability in connection with these breaches.
The total amount of the penalties to be imposed by me is $1,500. Pursuant to s.178(5) of the Act, the penalties are to be paid to the applicant. In addition, I propose to order the respondents to pay to each of the employees the amounts of the underpayments which I have found.

[1990] FCA 474

05 SEPTEMBER 1990