Transport Workers' Union of Australia v ACT Government as represented by the Territory and Municipal Services Directorate

[2013] FWC 1143

[2013] FWC 1143

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Transport Workers’ Union of Australia
v
ACT Government as represented by the Territory and Municipal Services Directorate
(C2012/5615)

COMMISSIONER DEEGAN CANBERRA, 19 FEBRUARY 2013

Alleged dispute relating to meal arrangements for ‘skippy truck drivers’.

[1] On 11 October 2012 the Transport Workers Union of Australia (TWU) notified a dispute concerning the taking of meal breaks for members employed as skippy truck drivers by the Territory and Municipal Services Directorate (TAMS) of the ACT Government.

[2] The matter was unable to be resolved by conciliation and was subsequently listed for arbitration in accordance with the dispute settlement procedures of the ACT Public Service Territory and Municipal Services Directorate Enterprise Agreement 2011-2013 (the Agreement).

The TWU position

[3] In accordance with the Directions issued the TWU lodged a written outline of submissions and witness statements of the affected skippy truck drivers. Three of the drivers gave evidence at the hearing and were cross-examined.

[4] It was the TWU’s case that it was an accepted custom and practice for skippy truck drivers employed by TAMS to take a 20 minute paid meal break during each weekday shift worked between 5.00am and 1.00pm. According to the union, the drivers had worked under this arrangement for up to 22 years. In October 2012, TAMS had directed the drivers to take a 30 minute meal break during each weekday shift and that their hours of duty for each such shift were to be 5.00am to 1.30pm, in accordance with the provisions of the Agreement.

[5] The relevant provisions of the Agreement were at Part B4 Hours of Work for Shift Workers. Relevantly clause B5.13 - B5.15 provide;

Meal Break

B5.13 An employee will not be required to work for more than five hours without a break for a meal of at least thirty minutes duration. Meal breaks will not count as time worked unless specific provisions are made for in this Agreement.

B5.14 The term 'meal break' does not require the employee to partake of a meal during the break period.

B5.15 The provisions of subclause B5.13 may be varied by agreement between the Manager/Supervisor and a majority of employees concerned in a workplace.

[6] It was the TWU position that, in accordance with the applicable clause of the Agreement, the requirement to take an unpaid meal break had been varied, and the custom and practice that had applied to skippy truck drivers’ hours of work and meal breaks was indicative of this arrangement.

[7] According to the TWU:

• The meal break arrangements of the skippy truck drivers were known about and approved of by their managers;



• In February 2012 two of the drivers were verbally directed to take an unpaid 30 minute meal break and cease work half an hour later at 1.30pm but did not consistently abide by this direction;



• Employees were required to take their meals while “on the road” and the 20 minute paid meal break arrangement was to recompense them for having to take their meals in the truck or in the open and for the lack of provision of wash up facilities.

[8] The TWU put the claim on alternative bases:

• TAMS had waived the right to enforce the unpaid meal break provided by the Agreement through supervisors and managers failing to enforce the provision over the preceding 22 years; or



• A Special Employment Arrangement (SEA), in accordance with the provisions of Annexure B of the Agreement, was in place between the employees and TAMS which underpinned the paid meal break and hours of work of the skippy truck drivers, effectively overriding the terms of the Agreement.

[9] The TWU case was supported by the evidence of three of the skippy truck drivers.

[10] According to Mr Harvey Bennett’s evidence, 1 he had worked as a skippy truck driver since 1990. It was his evidence that he had had a 20 minute paid meal break throughout his employment He was instructed in writing on 12 October 2012 that, from 15 October 2012, he was to take a 30 minute unpaid meal break and that his shift was to cease at 1.30pm. It was his understanding that the paid meal break was to compensate for the lack of provision of facilities during his break.

[11] When cross-examined, Mr Bennett conceded that there were facilities available that he could utilise for his break but stated that he had never used them.

[12] While Mr Bennett had not been told in 2008 that he was to take an unpaid meal break and cease work half an hour later, he was aware that the skippy truck drivers operating on the north side (he operated south side) had been given such a direction at that time.

[13] Mr Bennett agreed with the proposition that his eight hour day comprised 7 hours and 26 minutes for which he was paid with the additional 24 minutes accruing towards a paid day off each four weeks. He also agreed that on Saturday shifts he took an unpaid meal break which entitled him to claim a meal allowance.

[14] In response to a question from Mr Pinkas, Mr Bennett stated that in 2008 when the northside drivers were directed to take an unpaid meal break his supervisor was aware that he continued to cease work at 1.00pm each day.

[15] Mr Greg McTernan had commenced driving a skippy truck in 1994. It was Mr McTernan’s evidence 2 was that he had taken a 20 minute paid meal break each day and finished at 1pm. At or around January 2012, he had been instructed by his supervisor to take an unpaid break and work until 1.30pm. It was his evidence that he continued to take a 20 minute paid break and finish at 1.00pm with his supervisor’s knowledge. He too received a letter around 12 October 2012 requiring him to take an unpaid meal break of 30 minutes and to cease his shift at 1.30pm. Mr McTernan also believed that the paid meal allowance was to compensate for the lack of provision of facilities for his break.

[16] In his oral evidence, Mr McTernan agreed that he had received a directive from the then northside supervisor, Mr Bathgate that he was to cease work at 1.30pm. He had said that he would raise the matter with the union as he did not agree with the directive. He claimed to have heard no more about it. It was his evidence that his current supervisor Mr Sullivan was aware that he finished at 1.00pm each day and was “happy as long as there (were) no complaints for us to work through and not have a lunch break” 3. According to the Mr McTernan his former supervisors had also been aware that he finished at 1.00pm.

[17] Under cross-examination, Mr McTernan agreed that there are a number of places with facilities provided in his work area that he could access on his meal break but he claimed never to have used them.

[18] Mr McTernan was also familiar with the entitlement contained in the Agreement that he not be required to work for more than 5 hours without a meal break of at least 30 minutes duration. He was not familiar with Special Employment Arrangements and did not believe that he had ever been subject to one.

[19] Mr McTernan agreed that he commenced work at 5.00am and that he had an unpaid meal break between 5.00am and 1.30pm Monday to Friday. He also agreed that he had been directed by Mr Bathgate to work in accordance with those conditions in July 2008. He also agreed that he had had his pay docked for leaving the work site early after he had been given that direction. He agreed that he had worked until 1.30pm for a period because he did not want his pay to be docked again. When it was put to him that his timesheets between 2008 and 2011 indicated that he was working until 1.30pm he stated that that was what they said but that “the supervisor was letting us go at 1” 4. It was his evidence that he had not taken a paid lunch break but only a 20 minute ‘smoko’ break. He agreed that he had been taking a paid break but still taking Accrued Days Off (ADO) despite not working after 1.00pm. He also agreed that the Agreement required that he work until 1.30pm.

[20] Mr McTernan agreed that he had been directed to work until 1.30pm in 2008 and reminded of the obligation to comply with the Agreement in January 2012. He also agreed that he had on occasions complied with the obligation between January 2012 and October 2012.

[21] When re-examined, Mr McTernan stated that Mr Bathgate had gone to another position immediately after giving the directive in 2008. He also claimed that he had only finished at 1.30 pm on about 5 days of his employment as a skippy bin operator despite the times recorded in his timesheets. He stated that his supervisors were aware of the practice.

[22] Mr Carey Rogers’ evidence 5 was that he had been a skippy truck driver since 1994 and concurred with that of Mr McTernan concerning the taking of paid 20 minute breaks and the directions given in January and October 2012. He also had the same belief concerning the paid break being compensation for lack of lunch facilities. It was his oral evidence that Brian Bathgate had given him the same direction as Mr McTernan in July 2008 and as a result they had finished at 1.30pm “for a while”6. When asked to be specific he stated that it was probably for a few months. After that they had reverted to finishing at 1.00pm with their supervisor’s knowledge.

[23] Under cross-examination, Mr Rogers agreed that there were lunch and wash up facilities available during their break if they had wanted to use them. He agreed he worked a 38 hour week with an ADO every month. He also agreed that Mr Bathgate had given him a direction to work from 5.00am until 1.30pm each day. He claimed that in 2012 his supervisor, Mr Sullivan, had instructed him not to leave before 1.00pm.

[24] When re-examined, Mr Rogers stated that Mr Sullivan had given him the instruction not to go home before 1pm when he “had some trouble about going home in the rain” 7. He claimed that Mr Sullivan had said “I know you work through lunch and that is fine with me”8. Mr Rogers stated that they had had a 20 minute paid break.

The Position of TAMS

[25] Evidence was given for TAMS by three employees:

• Ms Kimberley Ivens. Acting Manager Employee Relations, Human Resources



• Mr Peter Sullivan, Supervisor, Allara Street Depot, City Services



• Mr Brian Bathgate, Manager, Northside Operations, City services

[26] Ms Ivens filed a witness statement 9, with a number of attachments. Her evidence covered the relevant provisions of the Agreement and other policies and procedures relating to the employment of skippy truck drivers. She noted that the positions of each of the drivers was subject to broad banding in 2009 into combined GSO 3/4 positions. Prior to broad banding the positions were at the General Service Officer 4 classification.

[27] Attached to Ms Ivens’ statement were a number of timesheets lodged by Mr McTernan and Mr Rogers. These showed that their times were variously recorded between 2008 and 2012 as 5.00am to 1.00pm and 5.00am to 1.30pm. It was also noted that both Mr Petersen and Mr Bennett always reflected their times as 5.00am to 1.00pm

[28] It was Ms Ivens evidence that the Director Parks and City Services became aware in September 2012 that the skippy truck drivers were working hours inconsistent with all other GSO 3/4s. On 10 October 2012, a formal direction was issued to all the drivers that they must take a 30 minute unpaid meal break between 8 am and 10.00 am in accordance with clause B5.13 of the Agreement. They were also advised that they would need to work until 1.30pm each day in order to accrue an ADO. It was noted that all other TAMS GSO 3/4s ( of which there are 517) must take an unpaid meal break and perform 8 hours of duty each day to accrue an ADO.

[29] At paragraphs 12 to 15 of her statement, Ms Ivens sets out those clauses of the Agreement that regulate the hours of work and meal breaks of the skippy truck drivers. She had no knowledge of any SEA ever being entered into for skippy truck drivers.

[30] Under cross-examination, Ms Ivens stated that her research had uncovered no industrial instrument in place in the previous 23 years that granted skippy truck drivers a paid meal break other than when working overtime. She also stated that she had no formal record of any issues with the hours worked by the drivers until it had been raised with her in 2012.

[31] Mr Peter Sullivan filed a witness statement 10 indicating that he had been in his supervisor position since 2009. His evidence was that during this time he had given instructions on several occasion to the north side skippy truck drivers that they were to work until 1.30pm and take a 30 minute unpaid meal break. These instructions were complied with for short periods of time then the drivers had reverted to their former hours.

[32] According to Mr Sullivan the skippy truck drivers’ timesheets did not always reflect the hours worked. As the timesheets did not reflect the unpaid lunch break he considered the hours worked were not impacted. He had however attempted to have the drivers work hours consistent with all other GSO 3/4s at the depot and with the Agreement. He had been told by the drivers that the paid meal break had been the result of an agreement between the TWU and TAMS and in 2012 sought to clarify the issue. It was his evidence that all the drivers had access to washrooms and facilities for their breaks.

[33] Under cross-examination, Mr Sullivan denied ever giving Mr Rogers a direction that he could cease work at 1pm. He agreed that he had given the drivers a direction to cease work at 1.30pm in January 2012 and stated that they had complied with that direction for a short period. After the drivers had reverted to their former finishing time, Mr Sullivan raised the matter with his manager. It then became the subject of this dispute.

[34] It was the evidence of Mr Sullivan that he directed the drivers on many occasions that they were to cease work at 1.30pm. He noted that he was not always at the depot when they finished their shifts. He could only recall giving them permission to work through lunch and finish at 1.00pm on one occasion when it had been raining.

[35] Mr Brian Bathgate’s evidence 11 went to the direction he had given to the north side skippy truck drivers in July 2008, the facilities available for the use of the drivers when on breaks and the hours of work of other GSPO 3/4s.

[36] When cross-examined about the meeting in July 2008, Mr Bathgate stated that he believed that the drivers understood the direction but intended to make enquiries about their need to comply with it. Further he believed that they were complying with the direction as he accepted the hours noted on their timesheets.

Submissions

[37] It was put for the TWU that there had been a practice of finishing work at 1.00pm ever since the drivers were employed. It was submitted that the practice was so well known that it represented an agreement between the employer and the employees. The drivers dealt only with their supervisors who, it was claimed, agreed to the practice.

[38] The TWU was unable to dispute the evidence of Ms Ivens that there had never been any award or agreement in place supporting the arrangement. It was the TWU’s position that despite this, as the arrangement had been in place for 20 years, it was unconscionable for TAMS to try to remove it.

[39] It was argued for TAMS that the evidence of the TAMS witnesses was uncontroverted. It was clear that the north side drivers had been given a direction in 2008 and were generally working in accordance with that direction, on the evidence of the timesheets.

[40] TAMS submitted that the TWU case had been put on alternative bases:

• that there was an SEA in place that supported the arrangement; or



• that on the basis of custom and practice of over 20 years the arrangement had been accepted by TAMS and could not be removed.

[41] It was put that there was no evidence of any SEA. Ms Ivens’ evidence had set out the requirements for an SEA and it was clear that no SEA had ever been entered into.

[42] So far as the custom and practice argument was concerned, it was put for TAMS that the evidence did not support such a claim. For custom and practice to override the express terms of the Agreement it was submitted that the practice had to be notorious, reasonable, certain and uniform. The working arrangements adopted by the truck drivers met none of these requirements. Only the 2 south side drivers had consistently adhered to the practice. The north side drivers had obeyed the directions of the supervisors on a fairly consistent basis or gave that appearance through their timesheets. It was put that to allow the skippy truck drivers to continue arrangements contrary to the express terms of their enterprise agreement would be, at least, inequitable so far as the remaining GSO 3/4 employees of TAMS were concerned.

[43] TAMS disputed that the Directorate had acquiesced to the arrangement adopted by the drivers and that it knew about the arrangement. The evidence was that, when first made aware of it in 2008, a direction was given to the north side drivers by Mr Bathgate that the arrangement was to cease. When the matter was brought to the attention of HR in 2012 an immediate direction was given to the same effect.

[44] On the basis of a number of authorities, 12 TAMS argued that the conditions whereby an arrangement might override the express terms of an enterprise agreement by custom and practice had not been met in the circumstances of this dispute.

Consideration and Conclusion

[45] I have considered all the evidence in this matter.

[46] There was no evidence before me that supported a conclusion that a Special Employment Arrangement had been entered into under the relevant provisions of the Agreement. The arguments put by the TWU in this respect are without merit. This limb of the argument was not actively pursued by the TWU either in the evidence or the submissions made at the hearing and I have concluded that there was no Special Employment Arrangement in place.

[47] So far as the argument concerning custom and practice put by the TWU, I do not accept that the express terms of an enterprise agreement can be overridden merely because a number of employees adhered to a practice and supervisors failed to take the necessary steps to ensure that their subordinates abided by the relevant enterprise agreement that covers them. It would be particularly inequitable to allow these drivers to access ADOs without the requirement that they work the necessary hours to accrue the paid time off. The evidence was that all other GSO 3/4s must work an 8 hour day in order to accrue the time off. All other GSO 3/4s at TAMS are required to take an unpaid meal break in accordance with the express terms of the Agreement. There is no reason why individuals in these positions, which are broad banded GSO 3/4 positions who are receiving the same salaries, should have a greater entitlement to accessing ADO’s.

[48] The TWU case was put on the basis that the drivers had a paid meal break as some sort of compensation for not having access to facilities for their lunch breaks. This claim was not supported on the evidence. No other TAMS GSO 3/4 employee is entitled to a paid day off each month on the basis that they do not wish to take advantage of the facilities provided by their employer.

[49] Whatever the situation prior to the current Agreement, and I note that this dispute has been notified about the implementation of the current Agreement, it is clear that the terms of the Agreement (as varied by agreement) require skippy truck drivers to work each weekday commencing at 5.00 am and finishing at 1.30pm, with a 30 minute unpaid meal break to be taken within 5 hours of the commencement of the shift. It is these hours that must be worked if the truck drivers wish to accrue an ADO each month. In my view if the truck drivers wish to give up the access to the ADO and finish work close to 1.00pm that option should be made available to them.

[50] The position that the employer has adopted in relation to the application of the meal break clauses of the Agreement is correct. There is no provision under the Agreement for the required meal break to be paid and I do not accept that the truck drivers should be absolved of their obligation to take their required meal break during their shift, whether that be a shift of 8 hours or 7 hours 36 minutes.

COMMISSIONER

Appearances:

Mr K. Pinkas, for the applicant.

Mr R. Cook, Counsel for the respondent.

Hearing details:

2013.

Canberra:

February 8.

 1   Witness Statement Exhibit TWU 1

 2   Witness statement TWU 2

 3   Transcript PN 166

 4   Transcript PN 272

 5   Witness statement Exhibit TWU 3

 6   Transcript PN 360

 7   Transcript PN 472

 8   Transcript PN 473

 9   Exhibit TAMS 1

 10   Exhibit TAMS 2

 11   Exhibit TAMS 3

 12   Con-Stan Industries of Australia Pty Ltd v. Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226; Byrne and Frew v Australian Airlines Limited (1995) 131 ALR 422; BP Refinery (Westernport) Pty Ltd v Shire of Hastings [1977] HCA 24 as cited by Senior Deputy President Hamberger in Endeavour Energy v Australian Municipal, Administrative, Clerical and Services Union & Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[2011] FWA 5833.

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