A business who denied an employee daily meal breaks for four years has been ordered to backpay the worker tens of thousands of dollars after a tribunal ruled the worker was eligible for double time for hours they worked without a break.
The case, which appeared in the South Australian Employment Tribunal (SAET) earlier this month, was between a South Australian fruit and vegetable wholesaler and a delivery driver employed by the business between August 2012 to August 2016.
The delivery driver claimed in his four years of work he had not once taken a 30-minute meal break, as is prescribed in the Road Transport and Distribution Award, and was instead pressured to improve his delivery times by his employers.
The driver was first employed on a casual basis at a base rate of $20 per hour, until he was offered permanent employment at a rate of $22 per hour in January 2014. At neither offer were the issues of meal breaks raised by the employer, and in the induction manual provided to the driver after his employment, no references were made to break provisions or any mention of the award.
Timesheets for the driver indicate he had never taken a meal break on any of his delivery runs, and the driver explains he would instead stop at bakeries or petrol stations to buy food and use the restroom, but would return to his run immediately after.
The driver also claimed he was regularly told by the employer he needed to improve his delivery run times, however, both parties accepted this was in some part true.
When the issue of meal breaks was raised by another employee of the business, the business owner reportedly said drivers did not get breaks because the drivers got extra in their pay to cover for the fact they didn’t get lunch.
In the award, drivers are to get 30-minute meal breaks if they work at least 3.5 hours, and if the break is not allowed, the drivers are entitled to double pay for every hour they work past 5.5 hours on a given day. The driver did not receive any overtime pay during his employment and anonymously complained to the Fair Work Ombudsman about that issue in a separate complaint in 2015.
In response to the tribunal, the employer claimed the driver had been taking his regular meal breaks, though offered no evidence to back this claim up, and admitted the driver’s time sheets showed he had not been taking breaks. The employer “thought the applicant had a 30-minute meal break every day because he never complained about not having one”.
The employer argued it was the responsibility of the driver to appropriately structure his day to have time to take his regular meal break. However, the driver argued the award outlines it is the employer’s responsibility to provide him with a reasonable opportunity to take a break.
“[It is not the 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,” the driver submitted.
Business ordered to backpay thousands
In the judgment, SAET Deputy President Lieschke ruled in favour of the driver, finding the employer had failed to comply with the rules set out in the award, rejecting the employer’s submission that it was up to the driver to work out when to take his prescribed breaks.
“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 while it continually expanded the southern run. It was not entitled to ignore the daily reality of the applicant working without any meal break,” Lieschke said.
“The [employer] failed to discharge its responsibility to organise that part of its business model that arranged the applicant’s work schedule in such a way as he was never reasonably allowed a regular complaint meal break.”
The tribunal ordered the business to backpay the worker double time for all hours worked beyond 5.5 hours each day.
While no specific number was placed on the amount of backpay this would entail, given the employee regularly worked more than 38 hours per week, at a rate between $20-22 per hour for four years, the backpay amount could easily stretch over $100,000.
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