More v G and T Security PY Ltd

[2015] FCCA 2796

FEDERAL CIRCUIT COURT OF AUSTRALIA

MORE v G & T SECURITY PY LTD [2015] FCCA 2796

Catchwords:

INDUSTRIAL LAW – Security Services Industry Award 2010 – small claims – unpaid wages to be paid.

Legislation:

Security Services Industry Award 2010, cl.21.6

Applicant: THOMAS ANDREW MORE

Respondent: G & T SECURITY PTY LTD

File Number: BRG 268 of 2015

Judgment of: Judge Vasta

Hearing date: 25 September 2015

Date of Last Submission: 25 September 2015

Delivered at: Brisbane

Delivered on: 25 September 2015

REPRESENTATION

The Applicant appearing on his own behalf

Mr Nelson appearing on behalf of the Respondent

ORDERS

1. That the Respondent pay to the Applicant the sum of $6,822.21 for unpaid wages within sixty (60) days from the date of these Orders.

2. That the Applicant’s application with respect to Clause 21.6(a) of the Modern Award otherwise be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 268 of 2015

THOMAS ANDREW MORE

Applicant

And

G & T SECURITY PTY LTD

Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. From 19 March 2009 to 27 June 2013 the applicant, Thomas Andrew More, was an employee of the respondent, G & T Security Proprietary Limited.  G & T Security Proprietary Limited are the providers of security services.  The place in which Mr More spent quite a deal of his time whilst working with the Respondent was on the wharves and there was a structure there known as the Pizza Hut.  The Pizza Hut was a place where the security employees were able to conduct their duties.  The code of conduct of G & T Security says this with regard to breaks:

   “Breaks; remember to take your breaks.  You are provided with a half-hour break if you work six hours and over and a one-hour break if you work 10 hours and over.  These are unpaid breaks.  Breaks may be broken up into manageable times, eg one-hour break into two half-hour breaks.  Advise your supervisor when required to go for a break.  Do not just go and leave your position unattended.  Where security officers are self-managed, they need to regulate their own breaks.  If on a break and a security issue arises, the security officer is required to attend and then go back to their breaks.  Exceptions NRL where you are paid for your breaks.”

2. The Security Services Industry Award 2010 states at clause 21.6:

   “21.6(a) Meal Breaks;  except where it is operationally impracticable, an employee will be granted an unpaid meal break of not less than 30 minutes where a shift exceeds five hours’ duration.  For the purpose of this subclause, it will be operationally impractical to grant an unpaid meal break unless the employee is permitted to leave the client’s premises or be unavailable for work during the period of the meal break.”

3. As can be seen, there does seem to be a conflict between what is in the code of conduct for G & T Security and what is in the Security Services Industry Award.  That subclause has that it is:

   “…impractical to grant an unpaid meal break unless the employee is permitted to … be unavailable for work during the period of the meal break.”

4. It seems that that is inconsistent with:

   “If on a break and a security issue arises, the security officer is required to attend and then go back to their break.”

5. During the time of employment and certainly after the employment had finished, Mr More agitated this point with the respondent company. 

6. The company had said with regard to this that the employees were directed to take their meal breaks and all employees were provided with the policy.  The employee could be unavailable to eat whilst in the hut when it was not busy.  Mr Nelson said in his affidavits and attachments that he was aware that employees are at work with their laptops and that there are times on shift when it is quiet and that they can take a break then and that the employees are aware when it is going to be quiet, like when there are no deliveries and no one is coming in and out of the berth.  He noted that every day is different and it is the responsibility of the security officer to take a break.

7. The hut, or Pizza Hut as it is known, has facilities such as a kitchenette, a seating area, a shower and toilet where the employees have the opportunity to have breaks away from the security point work area when required.  The applicant, Mr More, says that he cannot leave to get a meal;  he must have a meal on site and usually it has to be a prepared meal on site.  And that if he had not brought the meal with him, he did not have any opportunity to leave the workplace.  He says that he is and never, as it were, unavailable to have his meal break as, if he is required to come back, then he has to do that.

8. What Mr Nelson says to that is that if on the occasion that it is so extremely busy that the security officers were not in a position to be able to have taken their half-hour break or if it is more than a 10-hour shift two half-hour breaks, then it was a matter for them to contact head office and to say that it has been so busy that this could not have occurred on this particular shift.  He said that if that does happen then the company will pay for that time that should have been an unpaid break, but they will then investigate the matter as to why it was that the breaks could not have occurred.

9. The applicant concedes that there had been times where he was not able to take a break, but he did not tell the management that that had been the case.  The applicant pointed to an email sent to another person when that had arisen.  When one looks at that email, the management did say it is the responsibility of the officer to be able to manage that meal break, but then said, “Please call and discuss,” as if to say that if this had been a problem because of the amount of work being done, then they should talk to the persons at the office and that is what would occur.

10. That email was sent in 2009 and it does seem to me to be consistent with what Mr Nelson said to me in the hearing today.  The Applicant in here claims that because on a 12-hour shift he is required to stay in the Pizza Hut, in effect, for those 12 hours, he will only be paid for 11 hours because of the mandated meal breaks.  He claims that this is not proper and that he is claiming that he should have been paid for those times that he had to have the meal break and he is claiming $7,813.07. 

11. What occurred, and I only say this for completeness, was that the Applicant did go to the Fair Work Ombudsman seeking some form of resolution by the Fair Work Ombudsman for this matter and on the occasions that the Fair Work Ombudsman did look this matter, the Fair Work Ombudsman did determine that the complaint for paid meal breaks and meal allowance could not be sustained. 

12. It is trite to say that the Security Services Industry Award 2010 does mandate the taking of breaks.  It is, as I have said in the course of argument, something that is necessary to ensure if at all possible for persons to take time out from whatever it is that they are doing and at least mentally have a break.  There is nothing to suggest on the evidence here that the inability to have a break is a very common event, though one does see that there is some level of justifiable frustration. 

13. Nevertheless, when one has a look at all of the measures that G & T Security have put in, the fact is that if there is a problem with working to a particular extent where breaks are just not able to be done, that the company will talk to the person and will still pay for that period that is unpaid.  Again, while it is frustrating for the Applicant to say that he is there for 12 hours, and he is only paid for 11 hours, that is unfortunately the lot of the security officer in this particular aspect.  I cannot see that the Award has been breached, and therefore on the area of whether the claim for meal breaks is made out, I find that it has not been made out. 

14. With regard to overtime, the applicant was content to rely upon the reasoning and calculations of the Fair Work Ombudsman.

15. The Fair Work Ombudsman in this case went through the whole of the employment history of the applicant, that is some four and a quarter years.  What the Fair Work Ombudsman did was average out, over the course of an eight week cycle, how many hours over 304 hours the applicant worked.  On their calculations, when I actually look at their calculations, the amount of money that they say ought to have been paid in overtime was $6,822.21.

16. For some reason, the figure on the letter is $7,426.21, though when one does have a look at the actual sheets and working out it actually comes to $6,822.21.  The Respondent disputes those figures, and says that they are calculated on an incorrect basis.  The incorrect basis, they say, is this:  that the time taken for the particular shifts does include the unpaid meal breaks. The respondent is of the view that the unpaid meal breaks should not be taken into consideration when one is looking at the hours worked.

17. However, I am of the view that when one looks at the matter this way, consistent with what I have found with regard to the meal breaks, the fact is that the persons who are working in the Pizza Hut cannot leave their post and need to be available during the break, though they can get back to their break.  Whilst I have found that there is a justification under the award for what has occurred, I am of the view that it is, consistent with that approach, that when one is looking at the hours that a person is working, that a 12 hour shift means the person is working for 12 hours, but is taking an hour’s break during that time and is only therefore being paid for 11 hours.

18. This is a situation that would only arise in the peculiar circumstances that pertain to this particular workplace, and would not be the sort of matter that would generally occur.  For those reasons, I am of the view that the arguments of the Fair Work Ombudsman, which the Applicant has adopted, should be the correct philosophy behind the calculations of overtime for this particular Applicant.  In that respect, using the calculations that the Fair Work Ombudsman have made, I am of the view that the Applicant is owed $6,822.21 in overtime.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  20 October 2015