Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland v Gladstone Regional Council [2015] QIRC 149

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland v Gladstone Regional Council [2015] QIRC 149 PARTIES: Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland (Applicant) v Gladstone Regional Council (Respondent) CASE NO: B/2014/45 & B/2014/46 PROCEEDING: Application to recover unpaid wages DELIVERED ON: 7 August 2015 HEARING DATES: 4-5 February 2015 (hearing) 30 March 2015 (Applicant's submissions) 28 April 2015 (Respondent's submissions) 12 May 2015 (Applicant's submissions in response) MEMBER: Industrial Commissioner Knight ORDERS : 1. The application is dismissed CATCHWORDS: APPLICATION FOR RECOVERY OF WAGES - WHERE APPLICANTS WORKED A "COVERAGE ROSTER" - WHERE WORKERS CLAIM TO HAVE NOT BEEN AFFORDED BREAKS - where the Respondent Council claims the roster implementation was at the employee's request - where the employees did not raise concerns for an extended period of time - appeal dismissed. CASES: Gladstone Regional Council Certified Agreement 2008 (CA/2008/313) Industrial Relations (Tribunals) Rules 2011 Industrial Relations Act 1999 s 278 Local Government Employees' (Excluding Brisbane City Council) Award - State 2003 APPEARANCES: Mr A. Borg of the Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland. -- 1 of 15 -- 2 Mr N. Braid of the Local Government Association of Queensland Ltd for the Respondent. Decision [1] These applications have been made by the Construction, Forestry, Mining and Energy Union of Employees Queensland ("the Applicant"/"CFMEU"), on behalf of Ms Mary Payne and Ms Anita Cella ("the Workers"), for the Payment of Unpaid Wages. The claims have been made against the Gladstone Regional Council ("the Council"). [2] The particulars of the claims are: (1) "In Matter B/2014/45, the Council pay to the Applicant the sum of $44,910.60 for unpaid double time with respect to Ms Anita Cella; (2) In Matter B/2014/46, the Respondent pay to the Applicant the sum of $50,000 for unpaid double time with respect to Ms Mary Payne; (3) Such amounts to be paid within 14 days of the date of this decision." Relevant Legislation [3] Section 278 of the Industrial Relations Act 1999 ("the Act"), as it stood at the time of the introduction of the roster change, establishes the grounds on which an application for recovery of wages can be brought; "278 Power to recover unpaid wages and superannuation contribution etc. (1) An application may be made to the commission for an order for payment of— (a) an employee's unpaid wages; or (b) an apprentice's unpaid tool allowance under section 138; 73 or (c) remuneration lost by an apprentice or trainee because the employer has contravened section 391(2); 74 or (d) contributions to the approved superannuation fund payable for an eligible employee that are unpaid; or (e) remuneration unpaid because a person contravened an order mentioned in section 140A(1). (2) An application cannot be made to the commission if the total amount claimed under subsection (1) is more than $50000.75 (3) The application may be made by— (a) for a claim for occupational superannuation—an employee who is an eligible employee on whose behalf an employer is required to contribute to an approved superannuation fund; or (b) for any other claim—an employee; or (c) an employee organisation of which the eligible employee or employee is a member, acting for the employee; or (d) a person authorised by the eligible employee or employee to make the application, acting for the employee; or (e) an inspector. (4) The application must be made within 6 years after the amount claimed became payable. -- 2 of 15 -- 3 (5) However, for an apprentice or trainee, the application can not relate to wages payable more than 4 years before the commencement of this section. (6) The vice president may, either before or after the start of a hearing, remit the application to a magistrate if the vice president considers the application could be more conveniently heard by a magistrate, having regard to— (a) the difficulty or expense of producing witnesses; or (b) another good and sufficient reason, for example, cost. (7) A magistrate may hear and decide the application as if it had been brought before the commission, and the magistrate's decision is taken to be a decision of the commission. (8) On hearing the application, 76 the commission or magistrate— (a) must order the employer to pay the employee— (i) the amount the commission or magistrate finds to be payable and unpaid to the employee within the 6 years before the date of the application; and (ii) an amount the commission or magistrate considers appropriate, based on the return that would have accrued in relation to the contributions had it been properly paid to the approved superannuation fund; and (b) may make an order for the payment despite an express or implied provision of an agreement to the contrary; and (c) may order the payment to be made on the terms the commission or magistrate considers appropriate. (9) For an order about an unpaid contribution, the order must require the contribution to be paid to— (a) if the employee is employed by the employer—the approved superannuation fund; or (b) if the employee is no longer employed by the employer— (i) the approved superannuation fund; or (ii) a complying superannuation fund; or (iii) a superannuation fund nominated by the employee; or (iv) an eligible rollover fund; or (v) if the amount is less than the amount of total benefits that may revert to an employee under the Superannuation Industry (Supervision) Act 1993 (Cwlth)—the employee. (10) The contribution must be paid into the unclaimed moneys fund, if a former employee in relation to whom an order is made— (a) can not be located after reasonable inquiry; or (b) does not nominate a superannuation fund for the purpose of the order, if required by the order to do so. (11) A person can not make an application under this section if an application has been made under section 399, 400F or 40877 for the same matter. (12) In this section— employee includes a student to whom an order made under section 140A78 applies. employer includes an employer to whom an order made under section 140A applies. -- 3 of 15 -- 4 occupational superannuation includes an amount equal to the return that would have accrued in relation to the occupational superannuation had it been properly paid to an approved superannuation fund." [4] In addition, s 135 of the Act applies to this matter and will be addressed at a later point. Relevant to the workers the Gladstone Regional Council Certified Agreement 2008 CA/2008/313 and Local Government Employees' (Excluding Brisbane City Council) Award - State 2003 are applied in assessment of the workplace entitlements. Witnesses For the Applicant [5] Ms Mary Payne commenced work with the Calliope Shire Council in 2006. She did then and does now work as a Gatehouse Attendant. Around March 2008, at the time of the amalgamation of the Gladstone City, Calliope and Miriam Vale Shire Councils, her employer became the Respondent Council. [6] Ms Anita Cella commenced work for the Calliope Council in April 2004. In May 2007 she commenced work for the Council at Landfill around May 2007. For the Council [7] Ms Carol Dau is employed currently by the Council as an assistant accountant and previously as a payroll clerk at the time of the Council amalgamation. [8] Ms Gail Griffith is currently a Human Resources Advisor for the Council having been appointed to that position in 2011. She has worked for the Council since the amalgamation of the various Councils. [9] Mr Paul Keech is employed by the Council as Director of Engineering Services which encompasses waste management services. He commenced work with the Council in 2011. [10] Mr Ron Doherty was employed by the Council as Director of Environment and Regulation until his retirement in 2011. [11] Mr Scott Prior was the Coordinator of Waste Services for the Council at the time of amalgamation until he left the Council in 2011. [12] Mr Charlie Sotiros was employed by the Council as Manager of Waste Services at the time of the hearing. The Nature of the Claims [13] Both Ms Cella and Ms Payne are employed as Gatehouse Attendants by the Council working 11 hour shifts at the Benaraby Landfill Station's gatehouse. They work alternate days, each completing a 7 day fortnight. [14] The relevant Award for these employees is the Local Government Employees' (Excluding Brisbane City Council) Award – State 2003 ("the Award"). The relevant -- 4 of 15 -- 5 Certified Agreement is the Gladstone Regional Council Certified Agreement 2008 (CA/2008/313) ("the CA"). [15] The period during which the claims are made is November 2008 to October 2011 and both employees say that in that time there had been no payment of relevant penalty rates pursuant to clause 6.3.3 of the Award and they had been unable to take meal breaks in accordance with clause 5.2.2.4 of the CA. [16] The employees worked a "Coverage Roster" pursuant to the CA during the relevant period. This Roster, referred to also as "Roster 13" by the Respondent, involved working 11 hour shifts with the entitlement of two meal breaks per shift, one paid half-hour meal break and one unpaid half hour meal break. Prior to the commencement of this Roster, the employees had each worked 5.5 hour shifts over a 9 day fortnight. [17] In contention is how the workers were changed from the previous roster to "Roster 13". [18] Primarily, the Applicant claims that both employees were unable to have either breaks during any shift over a three year period. Applicant's claim [19] Clause 1.6.1 of the CA is to be read and applied in conjunction with the terms of the Award. [20] Clause 5.2.2.4 of the CA provides that: "Each rostered day will include one half hour paid smoko break which is to be taken on or in close proximity to the worksite and one half hour unpaid lunch break. The timing of such breaks to be determined by the onsite supervisor in consultation with the work group. It is agreed that the timing of such breaks will be flexible and taken when logical breaks occur. No penalty payment will apply to deferred breaks." (Applicant emphasis) [21] Clause 6.3 of the Award provides that: "6.3 Meal Breaks 6.3.1 Employees shall be entitled to a meal break of not less than 30 minutes and not more than one hour. Subject to clause 6.3.4, the time allowed for such mean break shall commence not later than 6 hours after the ordinary starting time each day." The duration of a meal break having been determined as the recognised meal break in accordance with clause 6.3.1 and may only be altered by mutual agreement to a proposed change or by giving of one week's notice to the employee concerned. … 6.3.3 Except as provided for in clause 6.3.4 all work done during the recognised meal break shall be paid for at double time. Such payment will continue until a meal break is taken." (Applicant's emphasis). -- 5 of 15 -- 6 [22] The Applicant said that, read in conjunction, 5.2.2.4 of the CA and clause 6.3 of the Award provide that while no penalty rates apply to deferred meal/lunch breaks, where there are no thirty minute meal/lunch breaks, penalties begin to apply from the seventh hour after the ordinary starting time each day. [23] It is accepted that the Council had made back-payments to the employees at double time from the seventh hour until the end of their shifts between October 2011 and February 2012 (when they were provided relief for their lunch breaks), giving effect to the interpretation outlined in the aforementioned paragraph. [Affidavit of Gail Griffiths 15 January 2015, paragraph 8] [24] The Applicant submits that the back-pay represented the difference between double time rates from the seventh hour of the employees' shifts until the end of their shifts less what they were actually paid for the duration of a training period for relief personnel. [25] However, the employees have not received back-pay for the period between November 2008 and October 2011. Their work patterns were identical during that period to those for which they had received back payment for the time worked between October 2011 and February 2012. Work Patterns of the employees prior to the implementation of Roster 13 [26] Prior to working the 11 hour shifts, the employees worked two five and a half hour shifts and one 10.5 hour shift per roster cycle as part-time employees. On the days when 10.5 hours were worked, the employees worked from 7.00am until 5.00pm and received their 30 minute lunch breaks. Work Patterns - Roster 13 [27] This Roster commenced in November 2008 at the Benaraby Landfill Gatehouse. The work entailed 11 hour shifts from 7.00am to 6.00pm. [28] When the back payment of wages was made for work performed between November 2008 and October 2011, the employees were paid a total of 77 hours of the Roster cycle, of which 73.5 hours were paid at normal time and 3.5 hours were paid at time and a half. The 3.5 hours were paid to "compensate" the employees because they couldn't take their breaks pursuant to clause 5.2.2.4 and 6.3 of the CA and Award respectively. [29] The money was back paid because there had been a shortage of relief personnel to remain on site during any designated meal breaks. Roster 13 [30] The employees claim that the introduction of this Roster was unilaterally made by their supervisor, Mr Scott Prior. It came about as a consequence of the Council's taking charge of the Gladstone Transfer Station from JJ Richards. [31] The employees claimed that there had never been any agreement reached with the Council that they would forego their lunch breaks. [T1 – 28] -- 6 of 15 -- 7 [32] The employees' evidence was that Mr Prior told them they had to work 11 hours as part of the Roster and that they would receive time and a half for 30 minutes each shift. No breaks were taken. [33] The employees said that it was difficult to have a discussion with Mr Prior as he could be intimidating towards them. [T1-28] [34] The Applicant says that the evidence of the employees should be preferred to that of the Council because: (1) Roster 13 was introduced as a consequence of the acquisition of the Gladstone Transfer Station by the Council from JJ Richards with consequential staff movements across the waste management facility; and (2) The employees' evidence as to the intimidatory manner in which Mr Prior treated them. Alternative Proposition [35] The Applicant said that if the employee's evidence was not accepted, s 135 of the Act did not cease to operate. [36] Section 135 provides that: "135 Inconsistency between awards and contracts (1) To the extent of any inconsistency, an award prevails over a contract of service that is— (a) in force when the award becomes enforceable; or (b) made while the award continues in force. Note – However, for a contract of service that is a high income guarantee contract, see section 194(2). (2) The contract is to be interpreted, and takes effect, as if it were inconsistency conform to the award. (3) However, no inconsistency arises only because the contract provides for employment conditions more favourable to the employee than the award." [37] The Applicant referred to s 135 of the Act, and said that the Explanatory Memorandum to the Industrial Relations Bill 1999 states that: "[Section] 135 continues the provisions of section 139 of the Workplace Relations Act 1997 by providing that the provisions of an award prevail over any provision in a contract of service, where the provision of the contract is less favourable to the employee." [38] The Applicant stated: "In other words, unless it can be shown that the combination of having no meal breaks and receiving pay for 0.5 hours at time and a half (under the purported contract of service) was more favourable than receiving double time from the seventh hour until the end of the shift for want of a meal break, then the provisions of the award prevail as the relevant terms of the contract of service." [Applicant's submissions – point 24] -- 7 of 15 -- 8 [39] It is submitted that it is more favourable for the employees to receive double time from the seventh hour of their shift than receiving a single half hour paid at time and a half. The Council's submissions [40] The Council submits that, at first instance, the Commission must consider the meal break provisions in the CA as it relates to the employees' position. [41] While that matter will be addressed, the real nature of the claims revolve around various "arrangements" which are alleged to have occurred between the employees and the Council over time, concerning these meal breaks. Within that matrix as well is the back payment made by the Council to the employees for some of that period of time. What is alleged by the Council is that a flexible meal break arrangement existed, which not only suited the employees at that time but had been instigated by them. [42] The Council submits that it may be impossible to unravel what had occurred with regard to the meal breaks. [Respondent's submissions - point 11]. However, if the Commission does determine that point, it may also be able to determine whether what had occurred was permissible pursuant to the CA. [43] To achieve this end, the Commission must determine, on the evidence, whether the employees entered into any "arrangements" with the Council at their initiative or whether the Council unilaterally imposed altered rosters on them. [44] The Commission is also required to determine, on the evidence, whether employees in reality did take their paid meal breaks and then whether they were able to take their unpaid meal breaks. [45] It is only after making that finding, that the question of "unpaid wages" may or may not become a factor to be considered. Was there an "arrangement" between the employees and the Council concerning the taking of meal breaks? [46] What required consideration was whether the employees were able to take their paid meal break and then, as a separate consideration, whether they were able to take their unpaid meal break. [47] If it was found that the employees were unable to take one or both of their meal breaks, then what overtime or penalty rate is to apply. [48] The relevant clause of the CA at 5.2 (Coverage Roster Employees) provides: "The Council is seeking to introduce suitable rosters that will enable maximisation of plant and equipment and achieve a genuine balance between family and work life for employees. Council is specifically seeking to introduce a roster arrangement for the construction crews which operated formally out of the Gladstone and Calliope main depots which will provide seven (7) day coverage. This arrangement may -- 8 of 15 -- 9 also be offered to other council employees throughout the remainder of councils operations on a 'mutually agreed' basis after consultation with the relevant union. The rosters proposed (but not limited to) are provided for at schedule 4 of this agreement, however these proposed rosters do not prevent or inhibit the parties from mutually agreeing to other "coverage roster" arrangements both within and outside the construction crew areas." [Council's emphasis] [49] Clause 5.1.4 of the CA provides: "In the event that an employee is required to work, or elects to work, one of the coverage rosters allocated to the employee by Council, and the employer finds that the roster is incompatible with their family commitments and/or lifestyle, the employer may make a formal written request to the Human Resources Manager of Council to: (a) Change to the alternative roster albeit after the work hours may be altered; of (b) Change to part time or casual employment working only those days which are compatible with the employee's family commitments and/or lifestyle. [50] Any employee working pursuant to the Roster 13 shift system was entitled to two meal breaks in accordance with clause 5.2.2.4 of the CA. As to the timing of such breaks, this clause relevantly provides: "Each Rostered Day will include one half hour paid smoko break which is to be taken on or in close proximity to the worksite, and one half hour unpaid lunch break. The timing of such breaks to be determined by the on-site supervisor in consultation with the work group. It is agreed that the timing of such breaks will be flexible and taken when logical breaks occur. No penalty payment will apply to deferred breaks." [Council emphasis] [51] The Council submits that the Applicant has provided "insufficient particulars" in prosecuting their claim. [52] Council claims that the employees acknowledged that they were able to eat their lunches. The Council's claim is that the employees have not been able to explain why they were entitled to penalty payments in accordance with the Award. The evidence given was insufficient and vague as to the "alleged busyness" of the gatehouse and that they were not permitted to leave the gatehouse during the half hour unpaid meal break. [53] This lack of particularity does not satisfy the requirements of Rule 73 of the Industrial Relations (Tribunals) Rules 2011 ("the Rules"). [54] The Council submitted that The National Union of Workers Industrial Union of Employees Queensland (for Derrick Stones) v Carmona Industries Limited Northern Region (B/2006/50) identified the type of problems facing this claim: -- 9 of 15 -- 10 (a) The lack of sufficient particulars to enable the respondent to properly respond to how the claim for unpaid wages is assessed to have arisen; (b) Failure to comply with Rule 73 of the Rules, including failure to clearly particularise all of the relevant industrial instruments involved; (c) Failure to clearly set out the details in itemised form of each of the claims; (d) Failure to clearly indicate the particular dates the amounts claimed became payable, for example, on a year by year analysis, as well as reference to the manner in which each of the calculations in total was reached. [55] The Council submits that the application should be dismissed for want of particulars. Details of the Evidence given by the employees [56] Both Ms Cella and Ms Payne refer to the following: a) Neither approached Mr Prior to work Roster 13. b) What occurred was that Roster 13 was shown to the employees and both agreed to work the roster. However, that agreement was made without knowing that they would have to work through their lunch breaks. c) Only during extreme circumstances were both ever relieved during their 11 hours shifts. d) Concerns were not put to Mr Prior because employees felt intimidated by him. e) Meal breaks were not being deferred as both were never able to take a meal break. Ms Payne states: "I worked 11 hours straight without a break from November 2008 until 17 February 2012. They paid us our pays over a fortnight and they paid us at 73.5 hours at normal time and 3.5 hours at time and a half. I believe that the 3.5 hours time and a half payment was for the half an hour lunch break on each shift during that fortnightly pay period. I believe I should have been paid double time after my seventh hour of work." f) Both said that a smoko break was never granted and there had been no compensation paid for that forfeited break. g) During December 2008, it is alleged that Mr Prior said to Ms Payne and Ms Cella, "[w]e will pay you time and a half for your unpaid meal break and as there are limited compulsory training opportunities we will pay you double time when you go to training days." h) After Mr Prior left the Council in 2011, the matter was raised with Mr Doherty who was a Director of the employees at the time and Mr Sotiris who was the Manager of the Department concerning the issues. i) It is claimed that Mr Doherty said that as there was no-one trained to relieve the employees, who would be required to work without the breaks. j) This issue was raised by Ms Payne with Mr Dowley (her new supervisor) in September 2011 and he confirmed with Mr Sotiris that "I would get my meal breaks." On 15 October 2011, Ms Payne received a memo stating that she would -- 10 of 15 -- 11 be relieved for her meal breaks. Ms Payne claims that relief occurred only twice when she had to sit and train new employees in the gatehouse while she was having her break. k) When Gatehouse staff from Gladstone were asked to relieve Ms Payne when she was on leave, those employees said they would do that but only if they were paid according to the CA. l) Ms Payne asked Mr Dowley on 1 December 2011 to speak to Mr Sotiris about being paid the money owing to her from 2008. In a letter dated 31 October 2014, the Council stated that it had received Ms Payne's claim for back pay but only from 15 October 2011 until 16 February 2014. [MP2] m) On 20 February 2012 Ms Payne received correspondence from Ms Meredith Macarthur from the Council confirming that coverage had been arranged for her lunch breaks. [MP3] Details of evidence given by Council employees Mr Scott Prior [57] Mr Prior's evidence was as follows: a) Before the Council amalgamation, Mr Prior occupied the position of Coordinator of Waste Services for Calliope Shire Council. After the amalgamation, he became the Foreman of Waste Services for the Respondent. b) Prior to amalgamation at the Benaraby Gatehouse, two employees worked two different shifts which totalled 11 hours for the one day. c) The CA states that Roster 13 is a shift where the employee works 11 hours. Part of the 11 hour shift includes two half-hour breaks. The first half hour break is paid and employees are expected to stay on site; the second half hour break is unpaid, however the employees are entitled to leave their work-site. d) In August 2008, both employees approached Mr Prior for the purpose of working Roster 13. He advised both employees that he did not believe this was possible because he could not guarantee there would be someone to relieve them for their lunch breaks as there are not two people at the site at any given time. e) Mr Prior claims that both employees said that work was often slow in the day and they would have the opportunity to have their lunch break. They said on occasion they may serve a customer while they were taking their lunch breaks but that did not bother them. f) He believed the rationale put to him by the employees was that they would both only have to work a 7 day fortnight instead of the 9 day fortnight they were currently working. Both employees had not wanted to come into work on 9 days, working half day shifts. He said he told both employees that if they agreed with the terms of Roster 13, then the Council would pay them for their unpaid meal break. g) This arrangement was made by the Council because it was always difficult to arrange for someone to relieve them when taking their meal breaks. h) Mr Prior was adamant that both employees had asked for the Roster 13 arrangements. -- 11 of 15 -- 12 i) On a couple of occasions, the employees had asked if they could leave the site during their 11 hour shifts, and that request had been granted. j) Before the employees made a complaint on 5 July 2012, he was not aware of them having complained about their roster since its inception in 2008. The employees never spoke to Mr Prior about their concerns. k) Since 20 February 2012, Council had relieved both employees for their meal breaks. He stated that both employees had "rarely left the gatehouse since this time. So I find their claim totally disingenuous - I am expected to believe that they have fought so hard to have someone relieve them for their lunch break so that they could leave the work site but when there is someone to relieve them, they rarely ever leave the work-site." Mr Ron Doherty [58] Mr Doherty's evidence is as follows: a) Mr Doherty, at the time of the amalgamation of the Councils, was the Director of Environment and Regulation. b) He retired in 2011. A short time after his retirement, he understood that Ms Payne was claiming monies from the Council. Prior to retirement, Mr Doherty said he would drive to the Gatehouse (approximately once a week) where Ms Payne would be working and I would always have a chat with her. During those discussions she never raised any grievance with him about working particular shifts. c) Mr Doherty said he had advised Mr Prior to hold team meetings and while they were held intermittently, as far as he was aware the employees never raised the issues which are the subject of this claim. Mr Paul Keech [59] Mr Keech's evidence was: a) He is the Director of Engineering Services and commenced in that role with the Council in August 2011. b) He understood that the employees had asked to be put onto Roster 13. Council agreed to the proposition because it was not going to cost any more for the Council other than for the 30 minutes overtime as they did not take an unpaid lunch break. Ms Payne was to have her lunch in the gatehouse during quiet times and he believed that there was plenty of down time at the Gatehouse. c) The request would not have been agreed to by the Council if it thought that the employees were to be paid double time from the seventh hour of the shift. d) He became aware in September 2011 that the employees stated they wanted to change the arrangement and take a dedicated unpaid meal break. New employees were then trained so they could relieve both employees. e) The Council backdated both employees overtime rates from the time they first raised the issue in September 2011 until the time there was a roster of trained staff to relieve them on their lunch breaks (16 February 2012). f) That back-pay was the difference between overtime rates from the seventh hour of their shift until the end of the shift during the training period less what they were actually paid. -- 12 of 15 -- 13 g) Mr Keech stated: "From what I understand, Mary and Anita agreed with Council to work the longer 11 hour shift and get paid overtime rates from hour 10.5 to hour 11 in lieu of having a dedicated unpaid 30 minute lunch break. In my opinion, Mary and Anita are now both attempting to unconscionably take advantage of this agreement, having first raised an issue with it some three years after its commencement." Ms Gail Griffiths [60] Ms Griffith's evidence was that: a) She is the Human Resources Advisor with the Council and commenced this role in November 2011. b) She is aware of the CA provision relating to the "coverage roster". c) She states that when the two employees commenced working the "coverage roster/Roster 13" they would have had their first half hour paid break on site and while there was no one on site to relieve them, there was plenty of down time for them to eat their lunch. Council then deferred their second lunch break to the end of their shift and paid them overtime for this 30 minute period. d) Notwithstanding that clause 5.2.2.5 of the CA states that no penalty payment was to apply to deferred breaks, Council nevertheless paid them overtime rates for their second lunch break. This was done for the purpose of compensating both employees for the fact they were not taking their second lunch break during their shift, and not able to leave the work-site during this time. e) "Normally someone working the coverage roster would receive 10.5 hours pay whilst Mary and Anita received 10.5 hours at normal pay and half an hour at double time." f) Ms Griffiths understood that both employees agreed to the deferred break with Mr Prior. Ms Griffiths believed that both employees were never forced into the arrangement, but rather is was a voluntary agreement on their part. g) From the time both employees made their complaint to the Council in September 2011 until the time they were properly relieved for their lunch breaks, the Council back paid both employees double time from the seventh hour for each of their shifts until the conclusion of their shift. h) It was only when it became apparent that the "arrangement" the employees had reached with the Council did not suit them, the Council acted accordingly and took steps to train people to cover the employees and to make back payments to them from 6 January 2012 until the relief work commenced in 16 February 2012. Ms Carol Dau [61] Ms Dau's evidence was as follows: a) She is currently the Assistant Accountant Statutory and Compliance person for the Council. b) She had always understood that there had been a shortage of relief staff at the gatehouse and that staff had to remain on site during their designated breaks. -- 13 of 15 -- 14 c) She also held the belief that the employees in question preferred to work the full day shift rather than several shorter shifts. The shorter shift option would have alleviated the need to cover meal breaks. d) She understood that the employees wanted to work the longer 11 hour shift and agreed that they would eat their lunch on site when time permitted each day. e) She recalled Ms Payne saying to her "I would rather work one 11 hour shift than two 5.5 hour shifts". Mr Charlie Sotiris [62] Mr Sotoris' evidence was as follows: a) He is the Manager of Waste Services for the Council. b) At the time of the amalgamation of the Councils he was appointed as the Assistant Director of Environment and Regulations. c) His understanding was that the change from two 5.5 hour shifts at the Gatehouse was driven by the employees and recalled that one of the reasons related to "travel". One of the employees lived at Turkey Beach which was some distance from the Gatehouse and one of the advantages in having one 11 hour shift was that it would reduce the frequency of driving. d) Around 2008, the volume of waste being deposited was around 40,000 tonnes a year which is far below the current volume of 68,000 tonnes. Consequently, the days at the gatehouse were fairly quiet and employees were happy to have their lunch breaks in between trucks driving through and /or service customers. e) As soon as it became apparent that the employees were unhappy with their working arrangements, Council took the appropriate steps to ensure they would be relieved from their duties for their lunch breaks. This took some time, but the Council compensated both employees between when they made their complaint until when the relief situation was resolved. Employee's response to Council evidence [63] Ms Cella identified in her Affidavit that she had not requested to work Roster 13. She said when Roster 13 was shown to her by Mr Prior she agreed to work it. She said she had not been told that she would have to work through her lunch break at the time of the offer from Mr Prior. [64] Ms Cella had not approached Mr Prior as she felt intimidated by him, hence she had not made a complaint to Council generally. [65] Ms Cella denied that she had ever been at a team meeting with Mr Prior. She also states that all other comments made by Mr Doherty were denied to the extent that they differed from her Affidavit. [66] With regard to Mr Sotiris' Affidavit, she states that when Roster 13 commenced she lived at Calliope and not Turkey Beach. She moved to Turkey Beach in 2009. Ms Cella said she had not yet received any money as mentioned in paragraph 5 of -- 14 of 15 -- 15 Mr Sotiris' Affidavit. All other parts of Mr Sotiris' Affidavit are denied to the extent that it differs from her evidence. [67] Ms Dau's Affidavit was challenged on the grounds that she had been shown Roster 13; she said the only option for her was Roster 13. [68] Likewise Ms Dau's Affidavit is rejected on the same grounds for the rejection of others. [69] To Ms Griffiths' Affidavit, similar comments are made. A correction was made to Ms Griffith's paragraph 8 where Ms Cella says that the date is incorrect. The correct date was 25 October 2011. [70] Likewise, the same approach was taken by Ms Cella towards Mr Keech's evidence. Consideration of the Evidence and Findings [71] In determining this matter, I have formed the view that the application should be dismissed. I have accepted the evidence of Mr Prior and those to whom he reported, and also to those who came into contact with the employees working at the gatehouse that they were initially happy with the arrangements which had been made. [72] The evidence from Council witnesses was abundantly clear and compelling. All had an awareness of the arrangements which had been made and particularly Mr Doherty who often caught up with the employees at the gatehouse (usually once per week) and to whom the employees never mentioned their concerns. [73] It is not accepted that the employees were "forced" to work Roster 13. In their own words, they had agreed to work Roster 13. If they had difficulties with the roster (and they obviously did at some point), and notwithstanding that they may have been intimidated by Mr Prior, there were other people within the Council they could have chosen to discuss the issue with. It is not credible that these long term employees could have put up with the conditions they allege occurred, and not pursue the matter with some degree of urgency and consistency. [74] It appears that when the matter was appropriately raised with the Council, there was little hesitation on Council's part to make monetary adjustments from the date of the complaint until 16 February 2012. I have found this approach of Council to be satisfactory in the circumstances. [75] The basic tenent of Clause 5.2 provides for mutual agreement for variations to the "coverage roster/Roster 13" arrangements. The agreement reached was unremarkable and was altered by mutual agreement when the employees wished to be no longer bound by it. [76] The application is dismissed. -- 15 of 15 --