Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees v Sumner-Armstrong [2000] QIRC 57 (2000) 164 QGIG 248

248 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 7 July, 2000 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 278 – recovery of unpaid wages Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees AND Nigel Sumner-Armstrong (No. W40 of 2000) COMMISSIONER BECHLY 27 June 2000 Recovery of unpaid wages – Claim in respect of meal breaks – Employee unsupervised during hours of employment – Whether opportunity existed to take uninterrupted breaks – Discount of award commensurate with equity – Application allowed subject to discount. DECISION This is an application, initially against a Nigel Armstrong-Jones, for recovery of wages pursuant to s. 278 of the Industrial Relations Act 1999 (“the Act”) by the Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees (“ALHMWU”) on behalf of Ms Liani Greig for work performed between 16 July 1999 and 14 January 2000. There was no representation from the respondent on the first day of hearing, 4th May 2000, and the applicant was directed to take further steps to ensure that the claim was appropriately served. The matter was re-listed on 9 June 2000 when a Mr Nigel Antony Sumner-Armstrong entered an appearance as the employer of Ms Greig and acknowledged eventual service upon himself of an appropriately amended application. A schedule attached to the application detailed hours worked and wages due to Ms Greig for such hours. The total amount claimed was $14,488.33, less the total amount said to have been paid by the employer, this being $10,817.33. Wage records produced by the employer and accepted by the applicant reveal that the total amount paid was actually $11,152.74. This was acknowledged by the applicant. The net outstanding would be $3,335.59 if the calculations in the schedule are accepted as a reflection of the entitlements due under the Contract Catering and Industrial Services Award – South-East Queensland District. The application includes a claim for the payment of double time for ordinary hours worked, generally for two hours each afternoon (but longer on some days) on account of a claimed non-provision of a lunch break. This appears to be the only issue in contention between the parties. There is opposing evidence on this matter Ms Greig worked alone and was in charge of the operation, which was a canteen operated by the respondent, servicing employees at an industrial establishment. Ms Greig initially worked for four and a-half hours daily for a short period, these being the hours the canteen was open. These were later extended to eight hours, apparently to facilitate various cleaning duties. The respondent’s evidence is that, when the hours were extended he informed Ms Greig that she should take a meal break at a convenient time between 4.00 p.m. and 5.30 p.m. when the canteen was not busy. She could either close the shutters, which was somewhat tedious, or sit out in the public area. He says that the job was quite boring as there was not a lot to do. His evidence is also that occasions might arise when one or two persons might enter the canteen during the quiet time. He indicated to Ms Greig that if this occurred and she attended to the customers then she should extend her break. -- 1 of 2 -- 7 July, 2000 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 249 Ms Greig cannot recall being told to have a break. She can recall being told that she was welcome to eat and drink as much as she liked while she was working but times were not specifically given to her for meal breaks. On cross-examination she did acknowledge that some breaks were taken. Unsworn evidence was presented which indicates that others had seen her take breaks. She was unable to indicate how often she took breaks but acknowledged she sat in the public area and ate fruit or snacks, often with workers from the factory with whom she had formed an acquaintance. Ms Greig is an outgoing lady with a fair experience in the industry. She informed me that she had always worked in the hospitality industry in food and beverage work. She was aware that she was entitled to lunch breaks. In other places she worked she was told when to take breaks. On the evidence as to patronage of the canteen I do not accept that Ms Greig was unable to take a lunch break every day. When she accepted the job she was aware that she would be working alone. To expect in these circumstances to be told each day to take a lunch break is unrealistic. Although that was not stated it could be implied from her evidence as to what occurred with her other employers. I am inclined to accept the evidence of the respondent with respect to the instructions as to meal breaks at the commencement of employment for the extended days. In reaching this belief I take into account the following:– • Based apparently on information supplied by Ms Greig the original application was filed against a Nigel Armstrong-Jones rather than the respondent Nigel Sumner-Armstrong; • Ms Greig was emphatic as a result of a phone call to the canteen that the respondent conducted a business in the name of J & S Catering. It appears that no such business exists. The respondent traded in his own name until 3 April 2000 when he registered the business name S.A. Catering; • The initial and amended application, which apparently were based on information provided by Ms Greig contained incorrect information as to total earnings. That may be the result of failure by her to disclose cash bonuses paid to her for reaching certain performance levels. While I have come to the conclusion that Ms Greig was aware that she was entitled to take meal breaks and that she had the opportunity to do so, the respondent has acknowledged that occasions would have arisen when such breaks would have been interrupted. That she had the opportunity to take breaks is supported by the fact that the canteen initially opened only between the hours of 5 p.m. and 9 p.m. and since Ms Greig ceased working there it has reverted to those hours. In these circumstances an equitable outcome would be to admit half of the time claimed as working through a lunch break. The initial claim was for an under-payment of $3,671.00. This was amended, to reflect the full amount paid to Ms Greig, to $3,335.59. This amount is further reduced by $1,179.06 to reflect the above decision. I order that Nigel Sumner-Armstrong (now trading as S.A. Catering) pay Ms Liani Greig the sum of $2,156.50 being for underpayment of wages otherwise payable for work performed from 16 July 1999 to 14 January 2000. R.E. BECHLY, Commissioner. Released: 27 June 2000 Appearances:– Mr J. Martin of Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees. Mr N. Sumner-Armstrong, in person. -- 2 of 2 --