Hana Express Group Pty Ltd v Fair Work Ombudsman
[2020] FCCA 54
•5 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HANA EXPRESS GROUP PTY LTD v FAIR WORK OMBUDSMAN | [2020] FCCA 54 |
| Catchwords: INDUSTRIAL LAW – Fair Work – Review of a Compliance Notice – whether the Notice correctly identified breaches of the Road Transport and Distribution Award considered – non payment of delayed meal break penalties – meal breaks permitted but not required or encouraged – Notice confirmed. |
| Legislation: Acts Interpretations Act 1901 (Cth), s.15AA |
| Cases cited: Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616 |
| Applicant: | HANA EXPRESS GROUP PTY LTD (ABN 40 158 264 236) |
| Respondent: | FAIR WORK OMBUDSMAN |
| File Number: | SYG 1586 of 2018 |
| Judgment of: | Judge Driver |
| Hearing dates: | 8, 9, 10 October 2019 |
| Date of Last Submission: | 22 November 2019 |
| Delivered at: | Sydney |
| Delivered on: | 5 March 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr M Baroni |
| Solicitors for the Applicant: | Hayashi & Hong Laywers |
| Counsel for the Respondent: | Ms V Bulut |
| Solicitors for the Respondent: | Office of the Fair Work Ombudsman |
ORDERS
The Compliance Notice issued on 23 April 2018 by the Fair Work Ombudsman pursuant to s.716(2) of the Fair Work Act 2009 (Cth) is confirmed pursuant to s.717(3) of the Fair Work Act.
The application as amended on 13 July 2018 is otherwise dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1586 of 2018
| HANA EXPRESS GROUP PTY LTD (ABN 40 158 264 236) |
Applicant
And
| FAIR WORK OMBUDSMAN |
Respondent
REASONS FOR JUDGMENT
Introduction and background
By an amended application filed on 13 July 2018, the applicant (Hana) seeks review under s.717 of the Fair Work Act 2009 (Cth) (Fair Work Act) of a compliance notice issued to Hana by a Fair Work Inspector pursuant to s.716 of the Fair Work Act on 23 April 2018 (Compliance Notice).
Importantly, the amended application only seeks to review the Compliance Notice as it relates to the finding that Hana contravened clause 26.1 of the Road Transport and Distribution Award 2010 (RTD Award), being the “delayed meal break penalty” (Meal Break Penalty). There is no evidence before the Court, nor have any submissions been made, with respect to the Compliance Notice as it relates to the overtime clause (clause 27) contravention. As such, the respondent (Fair Work Ombudsman) maintains that there is no proper basis for the Court to accede to Hana’s request to “revoke” the Compliance Notice in its entirety.[1] Indeed, s.717(3) of the Fair Work Act only speaks of the Court “confirming”, “cancelling” or “varying” the Compliance Notice. On the basis of the amended application, the Fair Work Ombudsman maintains that the options available to the Court are to vary the Compliance Notice (if the Court accepts Hana’s submissions) or to confirm the Compliance Notice (if the Court does not accept Hana’s submissions). I agree, as discussed further below.
[1] See Hana’s closing submissions dated 30 October 2019 at [8]
The following statement of background facts is derived from the submissions of the parties.
Hana operates a delivery and distribution business that holds contracts with companies to deliver goods in Australia. It employs a number of truck drivers, amongst other staff. At the relevant time, Hana employed the following individuals as truck drivers:[2]
a)Mr Dong Jun Lee;
b)Mr Jae Han Jeoung; and
c)Mr Jae Won (Jason) Jang.
[2] Collectively, the Employees
It is not in dispute that at all relevant times, the RTD Award applied to the Employees.
On 23 April 2018, the Compliance Notice was issued to Hana. The Compliance Notice provided, amongst other things, that the Inspector had determined that:
a)Hana had contravened provisions of the Fair Work Act and the RTD Award in relation to the Employees, which required Hana to pay the Employees:
i)a delayed meal break penalty (clause 26 of the RTD Award); and
ii)overtime (clause 27 of the RTD Award),
b)the underpayments in respect of the above contraventions were quantified, during the respective “Assessment Periods”, as:
i)Mr Lee:
1. delayed meal break penalty: $56,849.07;
2. overtime (first two hours): $706.29;
3. overtime after two hours: $505.16;
total: $58,060.52.
ii)Mr Jeoung:
1. delayed meal break penalty: $37,025.28;
2. overtime (first two hours): $368.16;
3. overtime after two hours: $137.05;
total: $37,530.49.
iii)Mr Jang:
1. delayed meal break penalty: $14,883.32;
total: $14,883.32.
As is evident from the above, the large majority of the underpayment resulted from the finding that Hana had contravened clause 26 of the RTD Award, being the Meal Break Penalty.
Hana has rectified the underpayments with respect to overtime but is seeking a review of the Compliance Notice as far as it relates to the Meal Break Penalty.
The evidence and submissions
This matter was heard over three days on 8, 9 and 10 October 2019.
Over the course of the three days, the Court received evidence from seven witnesses, namely:
a)the Employees;
b)Inspector, Mr Joshua Toomey (the Inspector)[3]; and
c)evidence from Hana as follows:
i)Dr William Song[4];
ii)Mr Chung Hoon Lee[5] (Mr Brian Lee); and
iii)Mr Soo Yong Yang[6].
[3] See affidavit of the Inspector affirmed 23 October 2018 (Toomey Affidavit)
[4] See affidavits of Dr Song sworn 23 October 2018 and 22 August 2019 (Song Affidavits)
[5] See affidavit of Mr Brian Lee sworn 22 August 2019 (Brian Lee Affidavit)
[6] See affidavit of Mr Yang sworn 22 August 2019 (Yang Affidavit)
With the exception of the Inspector, each of the witness gave their evidence through an interpreter.
Consideration
The Court’s review of the Compliance Notice
Hana asks the Court to “revoke” the Compliance Notice or, in the alternative, to vary it, but only in relation to the part of the Compliance Notice which deals with the Meal Break Penalty.[7]
[7] Exhibit ‘JJT-2’, page 25 of Toomey Affidavit
It is not apparent to me on what basis the Compliance Notice could be revoked (or cancelled) in part. The Fair Work Ombudsman maintains that the only relief the Court could properly grant would be to vary the Notice. That is the alternative relief sought by Hana. Given that there is no dispute that the Court could at least vary the Notice, that question does not require a definitive resolution, but for the sake of clarity I agree with the Fair Work Ombudsman.
As Hana is the applicant in these proceedings, it bears the onus of establishing the facts and circumstances supporting intervention by the Court. The Fair Work Ombudsman maintains that Hana bears the onus of proof. Hana initially submitted that the Fair Work Ombudsman bore the onus of establishing that the Compliance Notice should not be revoked or varied. The closing position of Hana was that the question of onus was neutral. I proceed on the basis that the onus is on Hana to prove its case.
There is also a dispute between the parties as to the nature of the review to be conducted by the Court.
Section 717 of the Fair Work Act is a statutory mechanism for reviewing a compliance notice issued under s.716 and is an alternative to an avenue of judicial review. The nature of the review being conducted by the Court in this case is governed by the terms of s.717, which provides that a review is available only on two grounds (of which either or both can be relied on), namely:
a)that the recipient has not committed a contravention set out in the Notice;[8] and/or
b)the Notice does not comply with ss.716(2) or (3).[9]
[8] Section 717(1)(a)
[9] Section 717(1)(b)
The application seeks a review of a Compliance Notice issued by a Fair Work Inspector. The issuing of the Compliance Notice by the Inspector is a decision capable of review by this Court in accordance with s.717 of the Fair Work Act. The decision is an administrative one. In other words, it is a decision of an authority (a Fair Work Inspector) that can be reviewed externally.
The power of an Inspector to issue a compliance notice is derived from s.716 of the Fair Work Act which provides as follows:
Application of this section
(1) This section applies if an inspector reasonably believes that a person has contravened one or more of the following:
(a) a provision of the National Employment Standards;
(b) a term of a modern award;
(c) a term of an enterprise agreement;
(d) a term of a workplace determination;
(e) a term of a national minimum wage order;
(f) a term of an equal remuneration order.
Giving a notice
(2) The inspector may, except as provided by subsection (4), give the person a notice requiring the person to do either or both of the following within such reasonable time as is specified in the notice:
(a) take specified action to remedy the direct effects of the contravention referred to in subsection (1);
(b) produce reasonable evidence of the person’s compliance with the notice.
(3) The notice must also:
(a) set out the name of the person to whom the notice is given; and
(b) set out the name of the inspector who gave the notice; and
(c) set out brief details of the contravention; and
(d) explain that a failure to comply with the notice may contravene a civil remedy provision; and
(e) explain that the person may apply to the Federal Court, the Federal Circuit Court or an eligible State or Territory Court for a review of the notice on either or both of the following grounds:
(i) the person has not committed a contravention set out in the notice;
(ii) the notice does not comply with subsection (2) or this subsection; and
(f) set out any other matters prescribed by the regulations.
Relationship with enforceable undertakings
(4) An inspector must not give a person a notice in relation to a contravention if:
(a) the person has given an undertaking under section 715 in relation to the contravention; and
(b) the undertaking has not been withdrawn.
Relationship with civil remedy provisions
(4A) An inspector must not apply for an order under Division 2 of Part 4‑1 in relation to a contravention of a civil remedy provision by a person if:
(a) the inspector has given the person a notice in relation to the contravention; and
(b) either of the following subparagraphs applies:
(i) the notice has not been withdrawn, and the person has complied with the notice;
(ii) the person has made an application under section 717 in relation to the notice that has not been completely dealt with.
Note: A person other than an inspector who is otherwise entitled to apply for an order in relation to the contravention may do so.
(4B)A person who complies with a notice in relation to a contravention of a civil remedy provision is not taken:
(a) to have admitted to contravening the provision; or
(b) to have been found to have contravened the provision.
Person must not fail to comply with notice
(5) A person must not fail to comply with a notice given under this section.
Note: This subsection is a civil remedy provision (see Part 4‑1).
(6) Subsection (5) does not apply if the person has a reasonable excuse.
As noted above, s.717 permits an external review of the decision of an inspector to issue a compliance notice. Section 717 provides as follows:
(1) A person who has been given a notice under section 716 may apply to the Federal Court, the Federal Circuit Court or an eligible State or Territory Court for a review of the notice on either or both of the following grounds:
(a) the person has not committed a contravention set out in the notice;
(b) the notice does not comply with subsection 716(2) or (3).
(2) At any time after the application has been made, the court may stay the operation of the notice on the terms and conditions that the court considers appropriate.
(3) The court may confirm, cancel or vary the notice after reviewing it.
In exercising its function, the Court may either confirm, cancel or vary the Notice after reviewing it.[10] The decision itself has two aspects. The first is the holding of a reasonable belief. The second is the exercise of a discretion to issue the Compliance Notice.
[10] Section 717(3)
The first issue to be determined on review is the reasonable belief of the Inspector. That is, did the Inspector hold a reasonable belief as required by s.716(1) of the Fair Work Act on which to base his decision to issue the Compliance Notice? The question is not whether the external reviewer would have formed that belief. Moreover, the question is not whether the Inspector held that belief but whether such belief was reasonable in the circumstances.[11]
[11] See Growthbuilt Pty Ltd v WorkSafe NSW [2018] NSWIRComm 1002 which deals with sections contained in the Work Health and Safety Act2011 (NSW) which operate on similar if not identical terms.
When a statue prescribes that there must be reasonable grounds for a state of mind, including suspicion and belief, it requires the existence of facts which are sufficient to induce that state of mind in a person. The test of reasonable belief is objective.[12]
[12] George v Rockett [1990] HCA 46
An Inspector is, however, required to balance the objective information available to him, and is obliged to make reasonable enquiries. Whilst the Inspector is not bound by any responses he may receive from, for example, Hana, he must take them into account in forming his view. A reasonable and balanced approach does not allow an Inspector to make assumptions and act on them without, at least, attempting to test, in a timely and practical manner, the validity of those assumptions.[13]
[13] Growthbuilt at [95]-[96]
The exercise of discretion
Section 716 clearly involves the exercise of a discretion once a reasonable belief is formed. That discretion must be exercised appropriately and not capriciously, disproportionately or unreasonably.
There is no express or implied limitation upon the power of the Court to deal with the exercise of that discretion.
Relevant to the exercise of the discretion are the scope and objects of the statute[14]. Section 3 of the Fair Work Act states that:
[14] Water Conservation Comm v Browning (1947) 74 CLR 492 at 505
Object of this Act
The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:
(a) providing workplace relations laws that are fair to working Australians, are flexible for businesses, promote productivity and economic growth for Australia’s future economic prosperity and take into account Australia’s international labour obligations; and
(b) ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards, modern awards and national minimum wage orders; and
(c) ensuring that the guaranteed safety net of fair, relevant and enforceable minimum wages and conditions can no longer be undermined by the making of statutory individual employment agreements of any kind given that such agreements can never be part of a fair workplace relations system; and
(d) assisting employees to balance their work and family responsibilities by providing for flexible working arrangements; and
(e) enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms; and
(f) achieving productivity and fairness through an emphasis on enterprise‑level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action; and
(g) acknowledging the special circumstances of small and medium‑sized businesses.
Whilst the discretionary power to “re exercise” that power clearly exists, the Court would not have to exercise that power if it were to find that the Inspector did not have a “reasonable belief” in the first place.
The scope of the review
Hana in its Reply Submissions asserted that the task which the Court is to undertake with respect to a review of a compliance notice is something akin to a merits review.[15] Hana presses this submission and contrary to the Review Submissions, Hana notes the following:
a)subsection 717(1) of the Fair Work Act permits a review of the notice;
b)the review is on either or both of the grounds set out in subsections (a) or (b) (Hana relies on subsection (a)); and
c)under s.717(3) the Court may confirm, cancel or vary the notice after reviewing it.
[15] Hana’s submissions in reply filed on 26 August 2019 (Reply Submissions) at [17]
If the Court rejects Hana’s submission that the task of the Court is something akin to a merits review, Hana submits that, in the alternative, the task of the Court is to review the Compliance Notice on a similar basis as the Court would otherwise do in matters before it arising under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). This is so because in such matters, the Court is not required to find jurisdictional error. The Court’s task is to review decisions or conduct which have an administrative character.[16] Hana, however, concedes that there are differences and, therefore limitations, in such an analogy but nonetheless submits that the Court may be guided by such an analogy.
[16] Section 3(1) of the ADJR Act
The remarks of Mason J[17] are of assistance in this regard: [18]
There are, of course, sound reasons for thinking that in many cases an appeal to a court from an administrative authority necessarily entail a hearing de novo…..The nature of the proceedings before the administrative authority may be of such a character is to lead to the conclusion that he was not intended that the court was to be confined to the materials before the authority. There may be no provision for a hearing at first instance or for a record to be made of what takes place there. The authority may not be bound to apply the rules of evidence or the issues which arise may be non-justiciable. Again, the authority may not be required to furnish reasons for its decision. In all these cases they may be ground for saying that and appeal calls for an exercise of original jurisdiction all for hearing de novo.
[17] Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616
[18] Ibid at 621
Hana submits that on a proper construction of the section there can be no doubt that the task before the Court is to review the Compliance Notice. If it were not the case, there would be no need for the word vary as found in s.717(3). Hana invites the Court to reject the Fair Work Ombudsman’s submission that the word vary simply empowers the Court to vary a compliance notice, for example, in circumstances where the compliance notice contains multiple (but different) non-compliance matters and one or more are not made out.
In other words, Hana opposes the interpretation that, if there are five contraventions and the Court forms the view there is no contravention with respect to one, the Court would vary the Compliance Notice so that it reflected only four contraventions. There is said to be nothing in the provision or the second reading speech that assists the Court in reaching such a conclusion. The reality is said to be that the ability to vary the Compliance Notice allows the Court to substitute its own decision in lieu of the decision of the Inspector.
Hana submits that the Court’s ability to vary the Compliance Notice is a direct consequence of its power to review it. Of course, the Court’s power to confirm or cancel the Compliance Notice is likewise a direct consequence of the Court’s power to review it.
The proceedings before the Court are an application for a review from the decision of an authority, namely the Fair Work Ombudsman. The evidence before the Court was not confined to the evidence before the authority. There was no hearing before the authority and the rules of evidence did not apply, and the authority was not required to, nor did it, provide reasons.
Further, Hana submits that the fact the current application is before the Court and not a tribunal is of no moment.[19] The Court has been provided with jurisdiction by the Parliament to deal with the matter (compare for example the Court’s jurisdiction pursuant to the ADJR Act but noting Hana’s comments relating thereto).[20]
[19] See for example Tasty Chicks Pty Limited & Ors v Chief Commissioner of State Revenue [2011] HCA 41
[20] In a different context, see the ADJR Act which allows, amongst others, this Court to review administrative decisions on grounds as set out in s.5(1) and s.6(1), which are not typical in the context of judicial review, and in particular s.5(1)(h) which is qualified by s.5(3) (review of decision) and s.6(3) (review of conduct) noting:
The ground specified in paragraph (1)(h) shall not be taken to be made out unless:
(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established; or
(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.
(counsel’s emphasis retained)
Further, Schedule 1(a) of that Act excludes decisions made under the Fair Wok Act.
In Tasty Chicks, the High Court was asked to determine a question with respect to whether a review to the Supreme Court of NSW (Supreme Court) from a decision of the Commissioner of State Review (NSW) was a review or an appeal.
The relevant provisions of the Tax Administration Act 1996 (NSW) (Tax Act) were as follows:
97 Review by Supreme Court
(1)A taxpayer may apply to the Supreme Court for a review of a decision of the Chief Commissioner that has been the subject of an objection under Division 1 if:
(a)the taxpayer is dissatisfied with the Chief Commissioner’s determination of the taxpayer’s objection, or
(b)90 days (not including any period of suspension under section 92) have passed since the taxpayer’s objection was served on the Chief Commissioner and the Chief Commissioner has not determined the objection.
(2)A taxpayer who has applied to the Civil and Administrative Tribunal under section 96 for an administrative review in respect of a decision cannot apply to the Supreme Court under this section in respect of the same decision. However, the taxpayer may do so if the earlier application is withdrawn with the approval of the Civil and Administrative Tribunal for the purposes of enabling the Supreme Court to deal with the matter.
(3)(Repealed)
(4)A review by the Supreme Court is taken to be an appeal for the purposes of the Supreme Court Act 1970 and the regulations and rules made under that Act, except as otherwise provided by that Act or those regulations or rules.
100 Provisions relating to applications for review
(1)An application for review following a failure of the Chief Commissioner to determine an objection cannot be made unless the applicant has given written notice of the proposed application to the Chief Commissioner not less than 14 days before it is made.
(2)The applicant’s and respondent’s cases on an application for review are not limited to the grounds of the objection.
(3)The applicant has the onus of proving the applicant’s case in an application for review.
(4)If the applicant or respondent appeals against a decision of the Civil and Administrative Tribunal in an application for review to an Appeal Panel of the Tribunal, the applicant in the application for review continues to bear the onus of proving the applicant’s case in the appeal if the Appeal Panel grants leave for the appeal to extend to a review of the merits of the decision.
101 Powers of court or tribunal on review
(1)The court or tribunal dealing with the application for review may do any one or more of the following:
(a)confirm or revoke the assessment or other decision to which the application relates,
(b)make an assessment or other decision in place of the assessment or other decision to which the application relates,
(c)make an order for payment to the Chief Commissioner of any amount of tax that is assessed as being payable but has not been paid,
(d)remit the matter to the Chief Commissioner for determination in accordance with its finding or decision,
(e)make any further order as to costs or otherwise as it thinks fit.
(1)Nothing in this section limits the application of the following provisions in respect of an application for review before the Civil and Administrative Tribunal:
(a)Division 3 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997,
(b)section 60 (Costs) of the Civil and Administrative Tribunal Act 2013.
(counsel’s emphasis retained)
In Tasty Chicks, the High Court noted[21]:
An "appeal" from an administrative decision to a court is the creature of statute and it confers original, not appellate, jurisdiction. Further, where a jurisdiction called an "appeal" is enlivened, it is essential to identify its nature and the duties and power of the court in the exercise of that jurisdiction. The term "review" presents similar considerations. It takes its meaning from the context in which it appears. It may be used by the statute in question to empower decision‑making by an administrative body, or to confer a species of original jurisdiction on a court. If the latter, again it will be necessary to identify the nature of the "review" and the duties and powers of the court in the exercise of that jurisdiction.
(footnotes omitted)
[21] at [5]
Further at [9]:
Rather, the proceedings before the primary judge turned upon the application of the "de‑grouping" provisions to Tasty Chicks and Angelo Transport. His Honour held that he was entitled to re‑exercise the powers of the Chief Commissioner under those provisions and, in doing so, replaced the decision of the Chief Commissioner with a decision that on and after 1 July 2003 Tasty Chicks and Angelo Transport were not members of a group with the Firm.
(counsel’s emphasis retained)
Ultimately, the High Court determined that it was not an appeal but a review by virtue of the provision of the Tax Act which gave the Supreme Court jurisdiction to review the assessment of the Commissioner. Whilst Hana concedes that the analysis in Tasty Chicks concerned a different legislative regime, nonetheless it was determined that the task before the Court was that of undertaking a review.
The relevant provisions of the Tax Act, referred to above, are said to make this abundantly clear by virtue of, first, its language; the entitlement to a review and, secondly, the powers of the Court. In other words, the Supreme Court can, using the language of the statute, confirm, revoke or make its own assessment or other decision. These powers, Hana submits, are no different to what the Court is entitled to do in accordance with s.717 of the Fair Work Act.
Hana submits that, in fact, s.568 of the Fair Work Act makes plain that the Court’s powers are not restrained. In that respect, the Court’s attention is drawn to s.14 of the Federal Circuit Court of Australia Act 1999 (Federal Circuit Court Act) which provides:
Determination of matter completely and finally
In every matter before the Federal Circuit Court of Australia, the Federal Circuit Court of Australia must grant, either:
(a) absolutely; or
(b) on such terms and conditions as the Federal Circuit Court of Australia thinks just;
all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible:
(c) all matters in controversy between the parties may be completely and finally determined; and
(d) all multiplicity of proceedings concerning any of those matters may be avoided.
Lastly, Hana notes that s.100(3) of the Tax Act makes plain that it is an applicant seeking a review which carries the onus. While there is no such provision in s.717 of the Fair Work Act, I see no particular significance in the omission.
Equally, the fact that Hana, as submitted by the Fair Work Ombudsman, may have a “choice” with respect to jurisdiction and that there was no intention to limit its ability to make an application pursuant to s.39B of the Judiciary Act1903 (Cth) is also of no moment. Hana has not sought judicial review but rather a review pursuant to s.717 of the Fair Work Act.
Further, Hana submits that the Court should accept that the meaning of a term in other legislation, in this case the term review, can be used where other legislation is sufficiently analogous; (see Pearce DC and Geddes RS, Statutory Interpretation in Australia.[22] Hana has referred to analogous legislation in its Reply Submissions.[23]
[22] 7th ed, LexisNexis Butterworths, 2011 at [3.36]
[23] See [12]-[14] of Hana’s reply submissions
Hana’s submission is said to be further fortified because of, as noted above, the use of the word review in s.717 of the Fair Work Act. Hana submits that, in construing the meaning of the word review, the Court should have regard to the following propositions:
a)first, general words in an Act should be given their legal meaning. The word review has a well-established legal meaning and absent anything contrary in the text of s.717 of the Fair Work Act, should not be viewed alternatively;
b)secondly, the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.[24] This is achieved by a review of the legislation’s text and structure. It is the text that provides the meaning and purpose of the legislation.[25]
c)thirdly, regard should also be had to s.15AA of the Acts Interpretations Act 1901 (Cth).
[24] Project Sky Blue v Australian Broadcasting Authority (1998) 194 CLR 355 at 389
[25] Ibid at 390
Whilst these submissions by Hana are not without merit, they do not support a review at large of the Compliance Notice. The parameters of the review are established by the material advanced by the parties in adversarial proceedings. Hana, as the applicant in these proceedings, must establish its case.
The amended application relies only on the ground in s.717(1)(a) of the Fair Work Act (namely, that Hana did not contravene clause 26.1 of the RTD Award). The task of the Court is therefore to consider, and to make a finding, as to whether or not as a matter of fact Hana contravened clause 26.1 of the RTD Award; or, more accurately, whether Hana has satisfied the Court that it has not contravened the relevant clause of the RTD Award. I agree with the Fair Work Ombudsman that it is for Hana (who brought the amended application) to prove that.
In Hindu Society of Victoria (Australia) Inc v Fair Work Ombudsman,[26] Judge Riethmuller considered the context in which a determination must be made as to who bears the onus of proof in proceedings made under s.717, observing at [20]:
a)the issuing of compliance notices is a simple form of administrative process to enforce compliance with workplace obligations;
b)the notice can only be issued upon an Inspector reasonably believing that a person has contravened a relevant provision;
c)compliance with a notice does not result in any form of admission or finding of contravention;
d)non-compliance with the notice is itself an offence; and
e)a person receiving the notice has a right to apply to the Court for a review of the notice.
[26] (2016) 304 FLR 264
Judge Riethmuller considered that the purpose of compliance notices was another option to deal with non-compliance instead of pursuing court proceedings.[27] Judge Riethmuller accepted the Fair Work Ombudsman’s submission that, from a practical perspective, should the Fair Work Ombudsman bear the onus of proof, it would be required to conduct every review proceeding as a substantive civil penalty proceeding.[28] Judge Riethmuller observed that, when reading s.717 as a whole, including s.717(1)(b), which provides a right to apply to the Court for a review of the notice on the basis that the notice does not comply with s.716(2) or (3), it “would be remarkable if the applicant did not bear the onus of demonstrating the non-compliance of the notice in this respect”. Should the Fair Work Ombudsman bear the onus of proof under s.717(1)(a), his Honour found that this “would lead to two different onuses of proof depending on which subsection was the review ground”.[29]
[27] See at [24]
[28] See at [25]
[29] See at [28]
It was for the above reasons that Judge Riethmuller concluded that “in the general scheme of the legislation” and “when reading s.717 on its own clear terms the section literally provides for the applicant to have a right to apply to the court for review of the notice on one of two grounds … [and] On a literal reading of the provision it appears to me that it provides for the applicant to bear the onus of proof of the facts and circumstances necessary to establish the ground that an applicant relies upon when seeking that the court cancel or vary the notice.”[30]
[30] See at [34]
I accept from the above that:
a)Hana bears the onus with respect to its application brought pursuant to s.717 of the Fair Work Act; and
b)Hana must prove the facts and circumstances necessary to establish the ground that it relies upon when seeking that the Court cancel or vary the notice, for present purposes, s.717(1)(a) of the Fair Work Act.
I reject the contentions by Hana that the decision in Hindu Society does not deal with the task that the Court is to undertake in reviewing a compliance notice. The above passage provides a clear indication of the task at hand. Indeed, in Hindu Society, that is precisely the task that Judge Riethmuller undertook.
For the reasons set out in Hindu Society, supported by the plain reading of the words in s.717 of the Fair Work Act, it is clear, in my view, that Hana bears the onus of proof to establish that, for present purposes, it did not, as a matter of fact, contravene clause 26.1 of the RTD Award. That is the case raised, as the ground of review, in the amended application. There has been no application to further amend that application.
As to the nature of the review being undertaken by the Court in accordance with s.717 of the Award, the parameters of the review are dictated by the provision itself. That is, the review is limited to one of the grounds set out in s.717(1) and, in this case, the ground in the amended application.
The Court is not tasked with undertaking some broad review by reference to the word “review” in isolation.[31] The word must be read in context, having regard to the purpose of the provision. To undertake a review of “all of the facts and circumstances which gave rise to the issue of the compliance notice in the first place” (as advanced by Hana in its submissions) goes beyond the two grounds of review set out in s.717(1). In this regard, the Court is not assisted by decisions which make findings about the meaning of the word “review” in other (unrelated) legislation which does not limit the grounds of review as does s.717(1) of the Fair Work Act.
[31] Contrary to Hana’s Reply Submissions at [12]-[35]
As Judge Riethmuller observed in Hindu Society at [34], and as noted above:
…. On a literal reading of the provision it appears to me that it provides for the applicant to bear the onus of proof of the facts and circumstances necessary to establish the ground that an applicant relies upon when seeking that the court cancel or vary the notice.
Accordingly, the facts and circumstances which led to the Compliance Notice being issued are of no direct relevance to the review being conducted by this Court pursuant to s.717, nor to the case as set out in the amended application. The only ground relied upon by Hana is that it did not contravene clause 26.1 of the RTD Award (i.e. s.717(1)(a)). As such, the facts relevant to clause 26.1 of the Award are the only relevant facts for the purposes of the review being undertaken by the Court.
Of course, if the Court were to find that in fact Hana did not breach clause 26.1 of the RTD Award, then it would logically follow that the Inspector’s belief was not reasonably held and that the discretion to issue the Compliance Notice to that extent miscarried.
Clause 26.1 of the RTD Award
Clause 26(1) of the RTD Award provides that:
26.1 Regular meal break
(a) An employee must be allowed a regular meal break during the ordinary hours of work except where unforeseen extraordinary circumstances arise.
(b) The meal break must:
(i) be of a regular duration of not more than one hour or less than 30 minutes; and
(ii) commence no earlier than three and a half hours and no later than five and a half hours after an employee’s fixed starting time of the ordinary hours of work; and
(iii) where reasonable and practical, be taken at a time to coincide with any requirement to take a break under fatigue management rules/regulations, or as otherwise required by the employer.
(c) If the meal break is not allowed, all time worked after the commencement time of the regular meal break until a break without pay for a meal time is allowed must be paid for at double the minimum hourly rate in clause 15.2.
The general approach to the construction of industrial instruments is set out in the judgment of French J, as his Honour then was, in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union,[32] at 438:
The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to ‘...the entire document of which it is a part or to other documents with which there is an association’. It may also include ‘... ideas that gave rise to an expression in a document from which it has been taken’ - Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518 (Burchett J); Australian Municipal, Clerical and Services Union v Treasurer of the Commonwealth of Australia (1998) 80 IR 345 (Marshall J).
[32] (2006) 153 IR 426
Further, Madgwick J in Kucks v CSR Limited[33] observed that a narrow pedantic approach to interpretation should be avoided, a search of the evident purpose is permissible and meanings which avoid inconvenience or injustice may reasonably be strained for, but, at 184:
... the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.
[33] (1996) 66 IR 182
As French J observed in Wanneroo, at 440:
It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities - City of Wanneroo v Holmes (1989) 30 IR 362 at 378-379 and cases there cited. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned - see eg George A Bond and Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504 (Street J). It may be that this means no more than that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdity or illogicality or apparent inconsistencies. But while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City of Wanneroo v Holmes (at 380):
Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties.
Accordingly, in interpreting the RTD Award, and specifically the Meal Break Penalty provisions, the Court must look at the language of the RTD Award, having regard to its context and purpose.
It is relevant that clause 26, titled “Breaks”, falls within Part 5 of the RTD Award, which also deals with ordinary hours of work, shiftwork, start times, overtime, penalty rates and requests for flexible working arrangements. Each of these matters, of course, are matters which are beneficial to employees.
Additionally, clause 26.4 (which is part of the same clause 26 in which 26.1 is found) is also relevant and needs to be read with clause 26.1. It provides:
26.4 Notwithstanding anything contained in this clause an employee will not be required or permitted to work longer than five and a-half hours without a break for a meal.
There has been some, albeit limited, consideration of clause 26.1 by courts and tribunals.
One such decision is Taylor v Miller,[34] in which Lieschke IM (as his Honour then was), in considering clause 26.1 of the RTD Award and the relevant provisions of the applicable NASPA, noted at [67] and [70]:
Both Awards provide for an employee to be “allowed” the specified meal breaks. It is not a question of whether a meal break was actually taken, but whether it was realistically allowed based upon fair opportunities in the system of work and the instructions the applicant had to follow. If a meal break was genuinely allowed but was not taken, the penalty provisions are not triggered. In this regard I accept Ms Miller’s evidence of telling the applicant he was permitted and encouraged to take a meal break that was effectively free of all duty, but he must also follow all of her clients’ instructions. The real issue is the frequency and duration of genuine opportunities for the applicant to be allowed a meal break of the requisite length free of all duty.
…
… a regular meal break of between 30 and 60 minutes should have been allowed between 8:30 and 10:30am, being between 3 ½ and 5 ½ hours after the agreed starting time of 5:00am.
(counsel’s emphasis retained)
[34] [2015] SAIRC 24
Lieschke IM considered the individual run sheets to determine whether there were “realistic opportunities” for the employee to take meal breaks based on the demands of the job and scheduling arrangements.
In the more recent decision in Taylor v Ellison House (SA) Pty Ltd,[35] Lieschke DP considered a case which bears some resemblance to the present case before this Court. Lieschke DP noted that the employee:
a)never took a meal break of 30 minutes or more. He would often stop at a bakery or other retail outlet such as a petrol station to buy his lunch and use their bathroom, but would return to his van and continue his deliveries: at [13];
b)was paid the same rate for all hours worked. He still did not take any meal breaks and none were recorded on his continuous run sheets: at [14];
c)was provided with an “Induction Manual” which did not make a reference to meal breaks or any Award conditions: at [15];
d)was made aware of some customer complaints over his late delivery times: at [18]; and
e)was regularly told by Mr Abbott [one of the principals of the business] in the mornings to hurry up, or that he was late leaving. The applicant would have regular contact with the office by phone throughout the day, generally with time queries such as his location, why he had not made a particular delivery by then, his estimated time to his next or to a particular drop, or questions about where he had been: at [22].
[35] [2019] SAET 35
Lieschke DP ultimately accepted the submission that the applicant’s job did not allow a fair opportunity to take any meal breaks of at least 30 minutes, whether at a regular or irregular time, due to the pressures of work and the time constraints placed on him to complete deliveries. His Honour found that:
a)the daily run sheets were consistent with the applicant’s evidence of never taking any meal breaks;[36]
b)the relatively few opportunities when the applicant could have had a meal break, due to no particular time constraints, were not taken up out of fear for his job;[37] and
c)if the opportunity was reasonably available on occasion, that does not satisfy the regularity requirement.[38]
[36] Taylor v Ellison House (SA) Pty Ltd at [74]
[37] Ibid, [81]
[38] Ibid, [81]
Lieschke DP rejected the submissions from the employer that the employee ought to have created an opportunity for a 30 minute meal break in light of the daily run sheets, known to the employer, which did not record a meal break amidst recorded continuous daily deliveries.[39] His Honour found that the employer could not discharge its responsibilities by shifting responsibility to the employee and that the employer had failed to discharge its responsibilities to organise that part of its business model that arranged the employee’s work schedule in such a way as he was never reasonably allowed a regular compliant meal break.[40]
[39] Ibid, [95]-[96] and [98]
[40] Ibid, [102]-[104]
Hana, in its submissions, has set out in detail, what it considers is the proper application of the Award.[41]
[41] Hana’s outline of submissions filed on 30 October 2018 at [15]-[19]
The decisions in Taylor and Ellison are said to be of no assistance on this point.
Clause 26.1(b)(iii) is said to make plain that there are exceptions to the mandatory provisions as set out in clause 26.1(b). Clause 26.1(a) does no more than place an onus on an employer to “allow” a meal break during the ordinary hours of work.
Clause 26.1(b)(i) and (ii) prescribe how long and when the meal break must be taken. In fact, subclause (b)(i) and (ii) follow naturally after the word “must”. Conversely, subclause (b)(iii) does not because it commences with the word “where….”. This is so, Hana submits, because subclause (b)(iii) qualifies, or creates exceptions to the mandatory nature of subclause (b)(i) and (ii). When properly understood, subclause (b)(iii) is said to make plain that breaks can be taken at other times either to comply with statutory fatigue laws or, as required by the employer.
Consequently, Hana submits that the Inspector’s understanding of the operation of the clause is not correct. It is said to be far from fatal if the meal break is taken at other times described in subclause (b)(ii).
The Court raised the issue with respect to what would happen if the break is taken after 5.5 hours. Hana submits that subclause (b)(iii) is a complete answer in the sense that it is permissible to have a meal break at any times outside of the span described in subclause (b)(ii).
Support for this interpretation is said to be found in clause 26.1(a) because, as noted above, the requirement is for an opportunity to have a meal bring during ordinary hours. Further, subclause 26.1(c) does not impose a penalty if the meal break is not taken as described in (b)(ii) but rather it is to be understood as imposing a penalty as follows:
a)if the meal break is not allowed;
b)it is to be calculated at double time for all time worked after the commencement time of the regular meal break.
In other words, the trigger is said to be the employer not permitting the employee to take the meal break, which of course may include lack of opportunity at all and not because there is no opportunity to take the meal break in accordance with subclause (b)(ii). Therefore, Hana contends that it is only the calculation which is relevant to (b)(ii), not the taking of the meal break itself.
Hana submits that if this were not the case there would absolutely be no requirement for subclause (b)(iii).
Further, the trigger for a “penalty payment” is not said to be subclause 26.4, but only subclause 26.1(c). A breach of subclause 26.4 is said not to enliven subsection 26.1(c), but rather it is non-compliance with subclause 26.1(b).
Hana contends that, other than a breach of the Award,[42] a breach of subsection 26.4 does not result in any penalty payment as contemplated by subclause 26.1(c) for the same reason, for example, a breach of subclause 26.2[43] or 26.3[44] of the Award would not trigger a “penalty payment” as contemplated by subclause 26.1(c).
[42] Which enlivens s.45 of the Fair Work Act
[43] Meal Breaks after ordinary hours
[44] Meal allowance
Clause 26.4 is said to be directed at prohibiting an employee to work more than five and a half hours without a meal break. It is said not to be directed at prohibiting an employee to work more than five and a half hours without a meal break from the employee’s start time as contemplated by subclause 26.1(b)(ii).
It is therefore submitted by Hana that subclause 26.4 is not relevant to the imposition of a Meal Break penalty.
I do not accept Hana’s submissions. The interpretation of clause 26.1 of the RTD Award, as set out by Lieschke DP in Taylor and Ellison, is in my view correct. Hana’s submission that those decisions do not consider clause 26.1(b) and (c) of the RTD Award are, with respect, misconceived. Those were the provisions considered by Lieschke DP.[45]
[45] Ellison at [106]
I find that, having regard to the above decisions, and the beneficial nature of the Meal Break Penalty, clause 26.1 of the RTD Award requires employers to:
a)implement a system of work; and/or
b)give instructions to its employees,
such that the employees have:
c)a realistic opportunity; and/or
d)a fair opportunity,
to take a regular meal break as required pursuant to clause 26 of the RTD Award, being a meal break of not more than one hour or less than 30 minutes in duration, and commencing no earlier than three and a half hours and no later than five and a half hours after an employee’s starting time of the ordinary hours of work.
Hana submits that the meal break can be taken at any time during the employee’s ordinary hours of work. I disagree. Clause 26.1(b)(iii) does not, as submitted by Hana, “create an exception” to the mandatory nature of clause 26.1(b)(i) and (ii).
First, the chapeaux in clause 26.1(b), with the use of “must”, makes plain that the requirements that follow are mandatory in nature with respect to “the meal break”, which, on its plain reading, is a reference to the meal break in clause 26.1(a).
Secondly, each of items (i) and (ii) in clause 26.1(b) is followed by the conjunctive “and”. That is, each of (i), (ii) and (iii) are mandatory requirements. The interpretation advanced by Hana takes no account of the conjunctive “and”.
Finally, the interpretation advanced by Hana fails to effectively deal with clause 26.4, which makes plain that “Notwithstanding anything contained in this clause an employee will not be required or permitted to work longer than five and a-half hours without a break for a meal.” (emphasis added). The interpretation advanced by Hana is inconsistent with clause 26.4. In my view, the purpose of clause 26.4 is to compel employers to enforce meal breaks, at least after five and a half hours of work. This reflects the public policy of road safety, both for drivers and other road users.
Consideration of the evidence
Hana’s contentions
The evidence of the Fair Work Ombudsman
The Inspector
The Inspector’s decision to issue the First Contravention Letter[46] was based on a number of considerations:
a)telephone interviews with the Employees;[47]
b)the Employer Timesheets[48] and Employee Time Sheets[49] (collectively “Timesheets”);
c)a belief that it was the responsibility of Hana to keep records with respect to the taking of meal breaks;[50] and
d)presumably, the original complaints.
[46] Toomey Affidavit at [18].
[47] Ibid at [20]-[21].
[48] Ibid at [14].
[49] Ibid at [13].
[50] Ibid at [16].
The period to which the above material related was 27 February 2016 to 17 January 2017. Hana has raised an objection with respect to the admissibility of the Timesheets and presses that objection. The Inspector relied on “Google Translate” to interpret what was written on the Timesheets in Korean. The translated text is, in Hana’s submission, hearsay and any conclusions drawn from the translated text is said to be opinion evidence with respect to which the Inspector has no expertise.
In cross-examination the Inspector conceded that he made no attempt to check the translation by way of a qualified interpreter.
Further, the Inspector, in cross-examination, conceded that there was no legal requirement for Hana to keep any records that required Hana to record when a meal break was taken.
The Inspector also agreed in cross-examination that his inspections had to be very “meticulous”. The Inspector also reassured Mr Jang[51] of that fact. Importantly however, the Inspector in cross-examination also conceded that various aspects of his investigation were not as “meticulous” as perhaps they should have been. The following examples are noted in Hana’s submissions.
[51] Toomey Affidavit at page 430.
First, as noted above, no attempt was made by the Inspector to check the correctness of the translation he relied on in deciding to issue the First Contravention Letter.
Secondly, the Inspector is said to have relied upon an erroneous assumption as to Hana’s legal responsibility with respect to what records were to be kept. He conceded there were none. To that end, in fact, the Timesheet entry dated 10 September 2014[52] contained an entry “1 hour lunch” which entry is said to have been ignored.
[52] Ibid at page 59.
Thirdly, the Inspector is said to have relied on the “quite inadequate” interviews with the Employees. The interviews were “phone interviews”[53] which disclose no questions with respect to meal breaks.
[53] Ibid at page 50-56.
On 10 October 2017, the Inspector issued a Revised Contravention Letter (Second Letter). The Inspector deposed that the Second Letter was sent to Hana after he had “reviewed” additional documents provided to the Inspector by Hana. Those documents were Driver Run Sheets (Run Sheets)[54] for the period March 2016 to May 2016 for the Employees. Further, the Inspector conceded in cross-examination that the references to “John” on some of the Run Sheets were in fact a reference to Mr Lee. It is said to be notable that notwithstanding the Inspector knew who “John” was,[55] he did not take those Run Sheets into account and in fact, is said to have ignored them because he mistakenly believed that “John” was not one of the Employees.[56]
[54] Ibid at [23].
[55] Ibid at [23].
[56] Ibid at page 507 where the Inspector notes: “These run sheets should not be considered as it is not for one of the employees”.
The Inspector also used “Google Maps” to determine various times and distances between drop off and pick up locations for the purposes of determining whether there was a meal break contravention. Under cover of the objection raised by Hana, the representations made as a consequence of the use of “Google Maps” is said to be hearsay. Further, there is said to be no evidence before the Court of the accuracy or otherwise of “Google Maps”. In any event, the use of such a method is in Hana’s submission hardly “meticulous”.
Further, the Inspector conducted face to face interviews with the Employees on 3, 9 and 10 August 2017. As a consequence of those interviews, the Inspector was seized, it is submitted by Hana, with certain information that he should have taken into account, but failed to do so. If he had, it would have raised significant concerns with respect to the assertions of the Employees compared to what was recorded, by the Employees themselves, on the Run Sheets.
The Inspector “tabulated” his analysis of the Run Sheets.[57] The analysis has allegedly significant errors and omissions.
[57] Ibid at pages 506-508
First, the evidence of the Employees was that, with respect to the morning run, they had to have completed that run by approximately 12:00pm or 12:30pm. This, according to the Employees, was also the case when they performed the “Newcastle run”. On any view, Run Sheets that the Inspector tabulated at pages 506 to 507 of his affidavit, as “not having their corresponding run sheet for the same date/driver”[58] is said to clearly show that the drivers, namely Mr Jang and Mr Jeoung, could never have been required to return to Eastern Creek by the asserted time. This is said to be so because, in Hana’s submission, the Drivers, on a Newcastle run, were free to arrange their work as they saw fit and could take a break uninterrupted because there was no requirement for a return to Eastern Creek as asserted by the Employees. Hana submits that the Inspector either ignored the variable evidence or the investigation simply did not take into account the inconsistencies that became apparent between the evidence of the Employees and the Run Sheets.
[58] Ibid at 506
Secondly, Hana submits, as noted above, that the Inspector simply ignored all of the Run Sheets which were completed by “John”.[59] The Inspector knew that “John” was Mr Lee.
[59] See Toomey Affidavit at Annexure JJT 14 at pages 506-508
Thirdly, there is no evidence about the accuracy of the time recording on the Run Sheets by the Employees;
Fourthly, Hana submits that the Inspector’s apparent finding that the Employees could only take break where the Inspector thought it appropriate was erroneous. There were lunch room facilities at Eastern Creek[60] and there are numerous places where truck drivers could stop and have a break. Mr Lee stopping at Kentucky Fried Chicken is said to be a good example.
[60] Song Affidavit (24 October 2018) at [16(d)]
Fifthly, Hana submits that the Inspector’s own tabulation contain errors which are said to have been demonstrated in the examples below. In most cases, the Employees, with respect to whom the Run Sheets relate, had the opportunity to take a meal break.
The examples[61] below are said to adequately demonstrate the flaws raised above:
[61] ibid, Toomey Calculations at pages 507 to 508
a)Run Sheet 16 March 2016[62] shows that “John” left Ryde at 11:58am and arrived at Eastern Creek at 12:10pm, that is, in 12 minutes. This with respect is simply not possible;
[62] Ibid at pages 460 to 461
b)Run Sheet 17 March 2016[63] shows “Jeoung” leaving Blacktown at 10:19am and arriving at Eastern Creek at 11.00am; that is 41 minutes. On any view it does not take 41 minutes. It is no more than approximately 14 minutes;
[63] Ibid at pages 462 and 467
c)Run Sheet 14 March 2016[64] shows “John” leaving Lakemba at 8:30am and arriving at Eastern Creek at 11:10am. The Inspector concludes that he could not have had a meal break. There is more than 2 hours and 30 minutes in which the driver could have had a break;
[64] Ibid at pages 449 to 450
d)Run Sheet 14 March 2016[65] shows “Jeoung” leaving Blacktown at 11:34am and arriving at Eastern Creek at 12:10pm, some 36 minutes later. As noted above, that trip should take approximately 14 minutes. He then leaves Eastern Creek at 12:30pm and arrives at Blacktown at 12:55pm, only 25 minutes. This is said to be another example of inaccuracies in time recordings and in any event would demonstrate there was ample time for a meal break. Hana also submits, that inaccuracies in time recording, and the use of “Google Maps” will have a compounding “error” effect;
[65] Ibid at pages 451 to 452
e)Run Sheet 15 March 2016,[66] the Inspector assumes that there was no time for a break presumably because he looked at nothing else other than the departure time of 11:30am at Woy Woy and the arrival time at Eastern Creek at 1:00pm and, using “Google Maps” calculated the travel time between the two locations concluding no opportunity for a break. This ignores the fact that:
[66] Ibid at 457-458
i)there was no need to return by midday to Eastern Creek;
ii)his own minimum travel time is 1 hour and 15 minutes which, if added to the departure time of 11:30am would mean the driver would have arrived 12:45pm leaving 30 minutes before the next departure; and
iii)Hana had always made it clear that the drivers could stop and take breaks, not simply when they finished their “deliveries”. The Inspector is said to have simply ignored that evidence;
f)Run Sheet 2 May 2016,[67] the Inspector is said to have simply ignored the Run Sheet because he presumed there was a missing “same” Run Sheet (afternoon run). The Inspector listed all such Run Sheets on pages 506 to 507 of his affidavit. Hana submits that should not have been ignored and is evidence of the opportunity to take a meal break;
g)Run Sheet 4 May 2016[68] shows “Jeoung” leaving West Gosford at 10:30am and arriving at Eastern Creek at 12:00pm and his lowest travel time using “Google Maps” is 1 hour and 5 minutes which means he would have arrived at Eastern Creek at 11:35am leaving 55 minutes before the driver’s next departure. There is said to be no reason why the driver could not have had his meal break either around West Gosford or at Eastern Creek. In fact, there is no evidence that he did not;
h)Run Sheet 6 May 2016[69] shows “John”:
i)taking 105 minutes to unload 300 tyres. When compared to the various arrival and departure time of all of the Employees, it is said to be difficult to see how it would take 105 minutes to unload 300 tyres. One explanation may be that “John” had a meal break;
ii)there are two Thornleigh deliveries with exactly the same arrival and delivery times. Hana suggests that this was ignored by the Inspector;
iii)the driver left Thornleigh at 9:54am (assuming this is correct) and arrived at Eastern Creek at 10:50am. The Inspector’s own “Google Maps” times show it could take 30 minutes (minimum time), therefore he had approximately 25 minutes available to have his meal break. The Inspector concluded otherwise.
[67] Ibid at 476
[68] Ibid at pages 485-486
[69] Ibid at pages 493-494
Hana submits that the difficulty that arises with such an approach is the lack of veracity with respect to how the Inspector has approached the investigation. The last example above is said to underline this submission because on one view, Hana has fallen five minutes short of providing the Employees with the opportunity of taking the 30 minutes meal break. The effect of this, Hana submits, is that the Court can simply not be satisfied that there has been a breach as alleged in the Compliance Notice and, conversely, should be satisfied that there has not.
Sixthly, for the reasons set out in Hana’s submissions, the Inspector is said to have incorrectly applied clause 26.1 of the Award by forming the view that a meal break could only be taken between 3.5 and 5.5 hours after the commencement of work. For reasons set out below, Hana submits that this is plainly wrong.
Seventhly, the Inspector is said to have failed to analyse whether in fact the “drop off” or “departure times” were accurate. These times were all recorded by the Employees. This is said to be an important aspect of the Inspector’s failure because, for example, the Run Sheet for 16 March 2016[70] for “John” shows him leaving Ryde at 11:58am and arriving at Eastern Creek at 12:10pm. This is simply impossible.
[70] Toomey Affidavit at pages 460-461
Eighthly, Hana had proved the Inspector with a statutory declaration from Ms Grace Lee with respect to the conformation that meal money was paid and, a letter from an owner driver, Mr Hassanin,[71] who worked for Hana, told the Inspector, among other things, that in fact, he and others did take breaks as and when it was appropriate to do so. The Inspector, in his evidence in cross-examination, indicated that whilst he did telephone the owner driver, he conceded that he did not think he was relevant because he was not an employee.
[71] Ibid at page 556
The Inspector ultimately issued the operative Compliance Notice on 23 April 2018. Prior to the issuing of the Compliance Notice, Hana provided the Inspector with “raw data” of its GPS records for a limited period in an attempt, to once again, demonstrate to the Inspector that the Employees could take meal breaks. There is no evidence from the Inspector as to what GPS record he actually inspected or for what period other than the GPS records related to Mr Lee and Mr Jeoung.
What is said to be clear is the “methodology” adopted by the Inspector with respect to the GPS records which is set out at [30] of his affidavit. The “methodology” is said to be superficial and to fail to take into account important transport industry considerations. This is said to be important because the Inspector conceded that he had carried out investigations in the transport industry and was reasonably familiar with it.[72] Further, this point is relevant because, during his oral evidence he confirmed that he relied on what other industries did with respect to the noting of meal breaks on timesheets or records.
[72] Evidence given by the Inspector during cross-examination, P-184
The Inspector only took into account periods when the vehicle was not moving with its engine off, whether it was an appropriate location, more than 30 minutes and if it was between three and a half hours and five and a half hours from commencement. There are said to be significant difficulties with this approach.
First, Hana submits that the Inspector paid no regard to the fact that it is not uncommon for drivers to keep their engine running whilst having breaks in the vehicle because it may be too hot or cold. This is notwithstanding his experience of the transport industry.
Secondly, the Inspector superimposed his opinion as to what he considered to be an appropriate location to stop and had no regard to the evidence of Hana with respect to their assertion that the Employees could indeed stop.
Lastly, there was no analysis by the Inspector as to test, or cross match, the entries on the Run Sheets with the relevant GPS records of truck movements.
The Employees
Hana contends that the evidence of the Employees can be best described as:
a)selective;
b)evasive;
c)self-serving;
d)non responsive to the most basic propositions; and
e)inconsistent with the available evidence.
Mr Lee
Hana submits that the evidence of Mr Lee should not be believed. His evidence was that he would load approximately 1,700[73] tyres on the morning run and 200 to 300 on an afternoon run. He further deposed that he would be the last to leave the depot in the morning.[74] Mr Lee says he would leave the depot after loading the 1,700 tyres and that it would be around 8:30am to 9:30am.[75]
[73] Lee Affidavit at [18]
[74] Ibid at [19]
[75] Ibid
The difficulty with respect to Mr Lee’s evidence is that despite his evidence, there is not one single Time Sheet or Run Sheet in evidence that supports his evidence on these two issues. In fact, the evidence discloses the opposite. Specifically, the evidence discloses that:
a)he would never leave the depot in the morning at times as suggested in his affidavit at [19]; or
b)that he would carry or deliver anywhere near the number of tyres as asserted by him in his interview with the Inspector[76] which was between 400 and 500. The evidence discloses he would carry, on average, 133.9 tyres on the morning run, 46.2 tyres on the afternoon run, or 180.1 tyres per day.[77]
[76] Toomey Affidavit, Annexure JJT11 at page 310
[77] Ibid at page 449-497
Further, Mr Lee deposed that he could never take a lunch break and that he would eat in his truck. Annexure D to the affidavit of Dr Song is evidence contrary to this assertion. During cross-examination, Mr Lee was asked a question specifically as to the notation on the receipt that said “eat in”. Mr Lee said that because he does not speak very good English he was misunderstood and could not explain himself that he did not want to eat in. This is said to be fanciful and should be rejected. Mr Lee was capable of ordering, what on any view, was a reasonably long list of itemised food as is shown on the receipt notwithstanding his poor grasp of English.
Mr Lee, in his reply affidavit, had also deposed that he was asked to fabricate run sheets. Hana complains that there is no evidence that would support that assertion. What the evidence, in effect established was that the delivery schedules would be determined in advance and then posted on an “app” called “Kakao Talk”. The schedules contained nothing more than the quantity of tyres per customer to be delivered and the customer’s address or destination.[78] It did not contain any times or schedules with respect to which any of the drivers, including Mr Lee, would have to comply with.
[78] This evidence was confirmed and conceded by each of the Employees during cross-examination
Hana submits that no weight should be given to Mr Lee’s evidence and the Court should be quite concerned about his candour.
Mr Jang
Mr Jang’s evidence was that he nearly exclusively performed the Newcastle run. He told the Inspector[79] that he would also be pushed to return to Eastern Creek by “12 O’clock”.[80] As noted above, there is not one Run Sheet that would demonstrate a “schedule” that would allow an inference to be drawn that Mr Jang was being pushed to finish his Newcastle run and return to Eastern Creek by noon.
[79] Toomey Affidavit, Annexure JJT12 at page 388
[80] Ibid
None of Mr Jang’s Run Sheets[81] would suggest that it was even remotely possible to return Eastern Creek by noon. This is said to be so because there never was such a requirement and accordingly, Mr Jang is said to have had ample opportunities to take breaks because it did not matter what time he returned from Newcastle. Further, none of the Run Sheets contain any evidence that would suggest there were pre-determined times with respect to when tyres had to be delivered.
[81] Toomey Affidavit, annexure JJT 14 at pages 449-497
Further, on the occasions that he was performing metropolitan deliveries, for example, on 14 March 2016,[82] Mr Jang is said to have had ample time to have a break.
[82] Ibid at pages 453-454
Lastly, there is no evidence of the accuracy or otherwise of the delivery times or departure times completed by Mr Jang. This is said to be relevant for all of the Employees, particularly in circumstances where there is no requirement to keep such records by Hana, their accuracy or otherwise would hardly be something the Fair Work Ombudsman would need to turn its mind to.
It is also said to be informative that none of Mr Jang’s Time Sheets[83] confirm his evidence that he ever worked until midnight loading tyres.[84]
[83] Ibid at pages 225-248
[84] Jang Affidavit at [20]
Hana submits that Mr Jang’s evidence should not be believed.
Mr Jeoung
Mr Jeoung’s evidence is said to suffer from the same defects.
Mr Jeoung also seemed to predominately perform the Newcastle run.[85] As such, there was never any requirement to be back by noon at Eastern Creek. Consequently, there is said to be absolutely no credible evidence as to why Mr Jeoung could not have had his meal break at whatever time suited him. He did not have to be at any particular customer’s premises at any particular time.
[85] Toomey Affidavit, Annexure JJT11 at pages 310-311
At [19] of his affidavit Mr Jeoung says that in order to deliver the tyres within Hana’s time frames he could not have a meal break. He conceded, as did all of the Employees, that there were no “time frames”.[86] The schedules that were posted to “Kakao Talk” did not stipulate any delivery times. At best, as Hana submits was made clear in its own evidence, the “morning run” would generally be finished between 12:00pm to 12:30pm and the “afternoon run” sometime around 3:00pm or so.[87] Mr Yang (for the Fair Work Ombudsman) had suggested that it was around 2:00pm or 2:30pm.
[86] Ibid at page 19
[87] This is consistent with evidence of Mr Jeoung at [16]
Further, to the extent deliveries were not effected during those time windows (which were windows requested by a client (Hankook) and not Hana), there is said to be no evidence that anything would happen to the Employees. There were never any consequences.
Mr Jeoung, also gave evidence to the Inspector that he would deliver around 150 tyres per day.[88] His Run Sheets do not support his evidence and indicates that he would deliver or carry far fewer that what he claimed he delivered.
[88] Toomey Affidavit, Annexure JJT11 at page 352
Use of the GPS records and the complaint against Mr Jeoung
The Fair Work Ombudsman sought to make much of the GPS system asserting that the GPS was used to “track” the Employees and make sure they kept working.
Hana asserts that there is no credible evidence that would support such an assertion. The evidence of Hana’s witnesses, collectively, was that:
a)Hana never used the GPS system to track anyone;
b)it was only installed at the request of Hankook; and
c)to the extent that Hana would contact any of the Employees whilst they were delivering tyres, it was only on the basis that Hana had received an enquiry from a customer asking for an indication of when the tyres would be delivered and for no other reason.
This fact with respect to customer enquiries, is said to lend significant weight to Hana’s contention that there were no set delivery times with respect to any customer.
Hana submits that there is no reason to not accept the evidence of Hana on this issue.
The Fair Work Ombudsman sought to make much of the letter of complaint[89] against Mr Jang. The proposition put by the Fair Work Ombudsman is that the complaint is evidence of time pressures on the driver. This assertion is said to have no basis.
[89] Ibid at page 224
Hana submits that, on a proper analysis, the complaint is directed at Mr Jang’s lack of care when off-loading tyres, his rudeness and abruptness. Moreover, the phrase in the complaint that he just wants to get on his way, should not be given any weight by the Court for a number of reasons.
First, it is second and third hand hearsay. Secondly, there is no context as to what is meant by the writer. Thirdly, it is not known whether it is the writer’s own words or someone else’s. Hana submits the complaint should be given no weight.
The evidence of Hana
Hana submits that in stark contrast to the evidence of the Employees, its own evidence was credible and consistent. Further, Hana’s witnesses did not “shy” away from propositions put to them by counsel for the Fair Work Ombudsman. Put more appropriately, they are said not to have been evasive and were always responsive to questions in cross-examination.
Hana submits that its witnesses also made appropriate concessions when required. Ultimately, Hana’s evidence can be summarised as follows:
a)generally, morning runs would be finished by 12:00pm to 12:30pm and afternoon runs would be finished by 3:00pm to 3:30pm. This was not a requirement;[90]
[90] Song Affidavit at [16(g)]
b)they did not use the GPS system to track the drivers;
c)they never told any drivers or the Employees not to take breaks. In fact, they encouraged the drivers to take breaks;[91]
d)the Eastern Creek site had lunch facilities and these were utilised by the drivers;
e)Newcastle and Central Coast runs did not return before midday and there was certainly no requirement that they do so;
f)the Employees were not reprimanded if they were late for a delivery.[92] Hana would contact the Employees if they received a query from a customer about what time the customer could expect the tyres. Nothing more;
g)there were no schedules that required any customer to receive tyres at a particular time;
h)the “Kakao Talk” app did not contain any required delivery times;
i)Hana would deliver approximately 500 tyres in total;[93]
j)the drivers would determine when they would take breaks having regard to the schedule;[94] and
k)consideration was given to various factors including meal breaks when schedules were prepared.[95]
[91] See for example Song and Lee Affidavits
[92] cf [139] above
[93] Song Affidavit at [9]
[94] Ibid at [16(c)]
[95] Ibid at [13]
Hana also submits, given the unusual proceedings which are before the Court and the debate with respect to onus, that the evidence relied on by the Fair Work Ombudsman is also, conversely, evidence upon which Hana relies on.
Putting aside the way in which the Inspector relied on the Time Sheets and Run Sheets to reach his conclusions and what reliance can be placed on such evidence in circumstances where there is no record keeping requirement under the Fair Work Act, the evidence, for the reasons set out above with respect to the Inspector’s and the Employees’ evidence, Hana submits does show opportunities to take meal breaks.
Resolution
Assessment of the evidence
At its highest, the case made out for Hana is that the evidence relied upon by the Inspector is in fact unreliable and that, having regard to best case scenarios on particular runs, there were hypothetical opportunities on or between some of those runs for drivers to have a break of some duration. That case does not, however, persuade me that Hana has established that it did not breach clause 26.1 of the RTA Award, when read with clause 26.4. My reasons follow.
In light of my interpretation of clause 26.1 set out above the question for the Court is whether Hana, in discharging its onus, has satisfied the Court on the evidence before it that it:
a)implemented a system of work; and/or
b)gave instructions to the Employees,
such that the Employees had:
a)a realistic opportunity; and/ or
b)a fair opportunity,
to take a regular meal of not less than 30 minutes in duration no earlier than three and a half hours and no later than five and a half hours after the Employees started work. That was not when the Employees started their delivery runs but when they started work at Hana’s depot. The evidence establishes that the Employees all had a fixed starting time for their ordinary hours of work, being 6:00am.
In light of the Employees’ fixed starting time of the ordinary hours of work, being 6:00am, the relevant opportunity to take a regular meal break must have been between 9:30am and 11:30am.
I accept the Fair Work Ombudsman’s submission that there are two possible ways in which Hana can satisfy the Court that it did not contravene clause 26.1 of the RTD Award with respect to the Employees. Either:
a)the Employees did, as a matter of fact, take a meal break in accordance with clause 26.1; or
b)the Employees were provided with the opportunity to take a meal break in accordance with clause 26.1, whether or not they took up that opportunity.
I further accept the Fair Work Ombudsman’s submission that, taking the two options in turn, there is simply no evidence to support the first proposition that the Employees did, as a matter of fact, take meal breaks. Indeed, that was not even put to them in cross-examination.
At its highest, it was put to Mr Lee that he had a meal break on one occasion on 12 September 2014, at the Kentucky Fried Chicken outlet in Morisset, for which Hana had a receipt.[96] That evidence, however, does not prove that, even on that occasion, Hana complied with clause 26.1 of the RTD Award because:
a)first, there is no evidence as to the duration of that break. Even if Mr Lee did “eat in” as indicated on the receipt (which he denied), there is no evidence that he stayed at the Kentucky Fried Chicken store for at least 30 minutes. Indeed, that assertion was never put to him in cross-examination nor was any evidence led from Hana in that regard;
b)secondly, the receipt contains the time stamp of 12:30pm. Given that the uncontested fact is that the Employees commenced their shifts at 6:00am, in order to comply with clause 26.1, Mr Lee was required to be provided with the opportunity to take a meal break of at least 30 minutes’ duration between 9:30am and 11:30am. A break (even if the evidence established a 30 minute break) at 12:30pm does not satisfy the requirements of clause 26.1; and
c)thirdly, the meal break, even if proved, does not satisfy the requirement for the break to be regular. Mr Lee’s unchallenged evidence was that this occurrence was an anomaly because he was told by Mr Brian Lee to take a trainee to lunch.[97] That explanation is consistent with the face of the document, as it shows that two meals (being Zinger Boxes) were ordered on that occasion.
[96] Song Affidavit (filed on 24 October 2018), page 25
[97] Transcript, P-171.38-39
Each one of the above points, independently and certainly cumulatively, is fatal to Hana’s case as it relates to evidence of the Employees actually taking a meal break.
As to the second avenue available to Hana, namely proving that the Employees were provided with the opportunity to take a meal break in accordance with clause 26.1, whether or not they took up that opportunity, the evidence is scant and unreliable.
Hana led evidence from three witnesses to support its amended application:
a)Dr William Song, the former Director and Operations Manager of Hana;
b)Mr Chung Hoon (Brian) Lee, the Director of Hana who effectively ran the business; and
c)Mr Soo Yong Yang, a manager employed by Hana.
Each of those witnesses gave evidence, during cross-examination, as to Hana’s system of work. Specifically, their evidence was that:
a)the Employees arrived at the Hankook warehouse by 6:00am in the morning;[98]
b)the Employees loaded tyres and then left to make the morning deliveries, leaving at various times;[99]
c)Hana’s contract with Hankook required the morning run to be delivered by 12:00pm (or 12:30pm, depending on the witness);[100]
d)the driving scheduled was designed so that the Employees would be “expected to return to the warehouse” between 11:00am and 12:00pm;[101]
e)the Employees were then to load the trucks for the afternoon deliveries;[102]
f)Hana’s contract with Hankook required the afternoon run to be delivered by 3:00pm (or 3:30pm, depending on the witness);[103]
g)the Employees’ manager, in fact, required them to deliver the afternoon deliveries by 2:00pm;[104]
h)in the period of 9:30am to 11:30am, the Employees were typically performing their morning deliveries;[105] and
i)with respect to the timing of the deliveries, and the importance of the deliveries being on time, Mr Brian Lee gave evidence (in re-examination) that:[106]
Of course, it is important to make on-time deliveries, whether it’s for morning or for the afternoon, but for the morning deliveries, the amount involved was always a lot more significant. It was greater, so that actually really kept us on our toes so that – so there was always a little bit of tension or ..... alert to that importance.
[98] Transcript, P-43.45-46, P-68.42-P-69.1, and P-84.46-P-85.1
[99] Transcript, P-44.7-14, P-69.7-10, and P-85.3-9
[100] Transcript, P-46.6-8 and P-70.33-35
[101] Transcript, P-46.14-18 and P-86.5-9
[102] Transcript, P-86.19-22
[103] Transcript, P-46.10-12 and P-70.37-39
[104] Transcript, P-86.24-26
[105] Transcript, P-62.34-37 and P-74.6-9
[106] Transcript, P-80.30-36
Mr Brian Lee’s evidence is consistent with the email complaint from Hankook, which is in evidence, noting that, “Having a structured delivery time is essential to running a tyre shop”.[107]
[107] Toomey Affidavit, page 555
It is clear from the above system of work that during the critical period, between 9:30am and 11:30am, the Employees were undertaking their morning deliveries. It was important that the deliveries were on time (before 12:00pm or 12:30pm) and, indeed, there was an expectation that the Employees would return to the warehouse and load for the afternoon run between 11:00am and 12:00pm.
Having regard to the “tension” to make sure deliveries were on time, the system of work implemented by Hana did not provide the Employees the fair or realistic opportunity to take a regular meal break of at least 30 minutes between 9:30am and 11:30am.
Equally, Hana’s evidence as to any instruction given to the Employees to take a meal break was insufficient to satisfy the requirement of clause 26.1 of the RTD Award, for the reasons set out below:
a)first, the affidavit evidence relied upon by Hana never rose above mere assertions that the Employees did have an opportunity to take a meal break. Such evidence is conclusory in nature and opinion evidence, although I did receive it;
b)secondly, the only direct evidence of any instruction being given to drivers is the evidence of Mr Brian Lee, being that he told the drivers that, “If you feel tired or sleepy, take a break or have a nap.”;[108]
c)thirdly, even accepting Mr Brian Lee’s evidence (which was denied by the Employees), Mr Brian Lee, in cross‑examination clarified that:[109]
THE INTERPRETER: There were actually times when I have directed that the drivers – if they feel sleepy after lunch, for example – that they should take a nap for, say, 10 minutes, or something like that.
MS BULUT: Okay. But you accept, don’t you, that drivers taking naps whenever they felt like it would cause problems for Hankook Tyres?
[108] Brian Lee Affidavit at [6]
[109] Transcript, P-73.19-32
THE INTERPRETER: Yes.
MS BULUT: Yes. And the nap you contemplated was a nap of 10 minutes or so; is that your evidence?
THE INTERPRETER: I didn’t actually specify the time during which they were allowed to take the nap.
(counsel’s emphasis retained)
d)finally, even accepting Mr Brian Lee’s evidence, as clarified in cross-examination, the evidence does not establish that the Employees were directed to:
i)take a meal break of at least 30 minutes’ duration. Indeed, what was contemplated was a break of 10 minutes’ duration; and
ii)take a meal break between 9:30am and 11:30am, as required by clause 26.1.
The evidence of Hana, which bears the onus with respect to the amended application and the assertion that Hana did not contravene clause 26.1 of the RTD Award, does not prove to my satisfaction that:
a)the Employees did, as a matter of fact, take a meal break in accordance with clause 26.1; nor that
b)the Employees were provided with the fair or realistic opportunity to take a meal break in accordance with clause 26.1, whether or not they took up that opportunity.
The system of work implemented by Hana, as outlined by the witnesses called for Hana, did not, as a matter of fact, provide the Employees with the fair or realistic opportunity to take a regular meal break of at least 30 minutes’ duration between 9:30am and 11:30am.
The Fair Work Ombudsman’s evidence
Much is said in Hana’s submissions about the evidence of the witnesses called by the Fair Work Ombudsman.
The criticism made of the Fair Work Inspector’s investigation is overstated. The various Findings of Contraventions letters issued to Hana prior to the issuing of the Compliance Notice, and the steps taken by the Inspector along the way, cannot, as a matter of logic, have a bearing of the question before the Court, which is whether, as a matter of fact, Hana has contravened clause 26.1 of the RTD Award.
It is not material whether the Inspector could have undertaken a more “meticulous” investigation or taken some step which he did not take during the investigation. None of those matters assist the Court in making a factual finding as to whether Hana has complied with its obligation pursuant to clause 26.1 of the Award.
Further, the criticism made of the Inspector having used Google Maps to determine distances and times for travel is unwarranted and inconsistent. Although Hana purports to give evidence (through submissions) as to how long a trip “should take”, the fact is that Hana has led no evidence in that regard. The criticisms are also inconsistent, as Hana appears to rely on the Inspector’s Google Maps data to assert that an opportunity did, in fact, exist to take a meal break. The Google Maps evidence is evidence of at least the process followed by the Inspector and could have been rebutted by Hana had it been able to do so. I draw the same conclusion in relation to the Google Translate evidence.
Similarly, the criticism made against the Employees is unduly harsh. The Employees had some difficulty understanding the questions asked of them during cross-examination, in part because of the nature of the questions, the expressions used and the fact that an interpreter was required. Their evidence was not wholly reliable but that does not assist Hana in establishing its case.
Importantly, with respect to the critical matters, being the system of work implemented by Hana as set out above, the evidence of the Employees was consistent with the evidence of the witnesses called by Hana.
Mr Jeoung’s evidence is criticised by Hana as “there was never any requirement to be back by noon at Eastern Creek”. That assertion is contradicted by the evidence of Mr Yang, Mr Jeoung’s supervisor called by Hana who, during cross-examination, gave the following evidence:[110]
[110] Transcript, P-86.5-17
MS BULUT: Okay. And the morning run had to be delivered by 12 noon; that’s correct?
THE INTERPRETER: The schedule was designed in such a way so that the drivers would be expected to return to the warehouse between 11 and 12 o’clock.
MS BULUT: Okay. But in terms of the contract between Hankook Tyre and Hana Express, the requirement on Hana Express was to make the morning deliveries before noon – 12 o’clock noon.
THE INTERPRETER: Well, without regard to the contractual conditions themselves, the schedule was prepared in such a way so that the drivers would be returning between 11 and 12 o’clock.
(counsel’s emphasis retained)
No distinction was drawn by Mr Yang between the drivers completing the Newcastle run, and those completing any other run. This is, again, consistent with the evidence of Hana’s witnesses that the drivers undertaking the Newcastle run would leave the warehouse first as they had to drive the furthest distance.
Whilst I accept that Hana made some allowance for drivers undertaking the Newcastle run, in terms of a more flexible return time expectation, it does not follow that the drivers on that run had a real opportunity to take a meal break in accordance with clause 26.1.
In substance, Hana’s criticism of the Fair Work Ombudsman’s witnesses, even to the extent it is warranted, cannot and does not fill the evidentiary holes in Hana’s case.
Hana’s own evidence, taken at its highest, does not prove that it did not contravene clause 26.1 of the RTD Award.
Even if Hana were able to satisfy the Court that one or more of the calculations relied upon by the Inspector in issuing the Compliance Notice was unsound, (on which I make no finding):
a)it is no part of Hana’s case that the calculations in the Compliance Notice are incorrect. That is not the case advanced in the amended application, and that is not the case pressed in Hana’s submissions. The only case brought by Hana is that it did not contravene clause 26.1 of the RTD Award at all;
b)Hana has not presented any alternate calculations to the Court; and
c)even if, on one or more occasions, the data before the Court is sufficient to satisfy the Court that the Employees (or one of the Employees) did have an opportunity to take a break on that occasion, that does not satisfy clause 26.1 of the RTD Award. That is because clause 26.1(a) makes plain that the employee “must be allowed a regular meal break”. A one-off occurrence or the like does not satisfy the regularity requirement.[111]
[111] See Taylor v Ellison House (SA) Pty Ltd [2019] SAET 35 at [81]
Conclusion
I conclude that Hana has failed to establish that it did not in fact breach clause 26.1 of the RTA Award, when read with clause 26.4. I will confirm the Compliance Notice and dismiss the application.
I certify that the preceding one hundred and seventy-six (176) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 5 March 2020
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