By Marise Donnolley workplaceinfo.com.au

A delivery driver who was denied meal breaks for four years was entitled to double time for hours worked beyond 5.5 hours each day, a tribunal has ruled. The South Australian Employment Tribunal found the employer had failed to comply with meal break provisions in the Road Transport and Distribution Award 2010.

Under pressure
Clayton Taylor was employed by a fruit and vegetable wholesaler as a delivery driver from August 2012 until he resigned in August 2016. He maintained that he never took a meal break during his working hours, and was constantly pressured to improve delivery times. He told the tribunal he had been criticised “about 20 times” for being too slow making deliveries and spending too much time with customers. In January 2015 and June 2016 he received verbal warnings for being too slow to complete his run.

Complaints
In May 2015 Mr Taylor complained to the office of the Fair Work Ombudsman about not being paid penalty rates and not being given meal breaks. Neither issue was resolved through the complaints process. The tribunal heard Mr Taylor requested he not be identified as the complainee as he was worried about adverse repercusssions. He also gave evidence of a conversation at work where one of the owners of the business (Margy Abbott) told a new office clerk that drivers received extra pay to compensate for the fact they didn’t get a lunch break.

Where was HR in all of this?
Sharaze Pentland was an independent HR consultant who was engaged by the employer in December 2015 to introduce a better HR structure. Although she held several meetings with staff, she did not raise the award requirement for a regular meal break with any of the drivers. The tribunal noted that meal breaks were never on her radar as an issue or a concern. Ms Pentland had a one-on-one meeting with Mr Taylor but said he did not mention unrealistic workloads or delivery time frames.

Meal breaks ‘not an issue’
The owner of the business, Chris Abbott, told the tribunal he didn’t think meal breaks were an issue with drivers. He was adamant Mr Taylor always took lunch breaks but offered no evidence to support that belief. Although he conceded Mr Taylor did not record meal breaks on his run sheets, Mr Abbott did not raise the issue with him. He claimed it was communicated to Mr Taylor that he was allowed to take a meal break free of all duty, and that his allocated duties of employment “realistically always provided an opportunity to do so “. Mr Abbott said Mr Taylor had not complained to him or Ms Pentland about not having meal breaks.

Arguments
The employer contended that Mr Taylor should have reorganised his work schedule in such a way that he provided his own regular meal break. However, Mr Taylor submitted that the award made it the employer’s responsibility to provide him with a fair and reasonable opportunity to take a regular meal break of at least 30 minutes duration. He said it was not an employee’s responsibility to “somehow find 30 minutes for a meal break in a busy work schedule that varied daily and made no specific provision or allowance for any break”.

Decision

The tribunal found that Mr Taylor did not take a meal break of at least 30 minutes on any day he worked for his employer, which was supported by his complaint to the FWO in May 2015. Deputy president Lieschke also rejected the employer’s submission that it was up to Mr Taylor to complain about the lack of provision of meal breaks. “To criticise the applicant at all would be to completely reverse the onus placed on the employer by the award to ensure that compliant meal breaks were allowed,” he said. “The employer has seriously defaulted on its responsibility through its demanding work schedule, broad criticisms and warnings of slowness, and by its silence about the known lack of any recorded meal breaks… It was not entitled to ignore the daily reality of the applicant working without any meal break.” The deputy president also found no evidence that drivers received extra pay for not having a meal break.

The tribunal ruled the employer had failed to comply with the award and Mr Taylor was therefore entitled to payment of double the minimum hourly rate in cl 15.2 of the award for all time worked beyond 5.5 hours each day.

Taylor v Ellison House (SA) Pty Ltd [2019] SAET 35 (1 March 2019)

If you have any questions about what you should be paying staff, or need some help interpreting your Award… call us! My direct mobile is 0438 735 926 (or the office (07) 40517307) and my email is phoebe@hrdynamics.com.au I’m always available for a chat.

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