In a recent Fair Work Commission decision, the Transport Workers Union (TWU) failed to argue that custom and practice can override express provisions of an agreement in relation to meal breaks, writes AMMA graduate employee relations consultant Sarah Helfer.

THIS matter, arising under s.739 of the Fair Work Act 2009, was not resolved at conciliation and was listed for arbitration in accordance with the dispute settlement procedure contained within the ACT Public Service Territory and Municipal Services Directorate Enterprise Agreement 2011-2013 (the Agreement).

According to the TWU, it was custom and practice for skippy truck drivers, who are employed by the Territory and Municipal Services Directorate (TAMS), to work a weekday shift from 5.00am to 1.00pm with a 20 minute paid meal break.

As a result of broad-banding in 2009, the skippy truck drivers were classified in the level of General Service Officer (GSO) 3/4.

In September 2012, TMAS were made aware that the skippy truck drivers were working hours inconsistent with all 517 other GSO 3/4s and in October 2012, TAMS enforced provisions of their agreement by directing drivers to change their working hours from 5.00am to 1.30pm, including 30 minute unpaid meal break.

This direction was not followed by some of the truck drivers who continued to take a 20 minute paid meal break. Within the Agreement, clause B5.13-B5.15 reads the following:

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.

The TWU argued that some employees did not have access to suitable wash up facilities because they often had to take their meal break whilst “on the road” and the 20 minute paid meal break arrangement was to compensate them for the inconvenience.

According to the TWU, this was a Special Employment Arrangement (SEA) in accordance with Annexure B of the Agreement which overrides the express terms of the Agreement.

The second part of the TWU argument was that managers and supervisors had known about the meal break practices and the failure of some truck drivers to abide by directions given by TAMS, which essentially waived the right to now re-enforce the Agreement provision of a 30 minute unpaid meal break.

TAMS collected timesheets which showed there were a variety of finish times recorded by the skippy truck drivers and that these did not always reflect the time worked.

TAMS also produced evidence that all the drivers had access to washrooms and facilities for their breaks.

When questioned, one skippy truck driver agreed that he was aware his work day was made up of 7 hours and 26 minutes with an additional 24 minutes accruing towards a paid day-off every four weeks (known as an accrued day off- ADO).

In spite of this some of the drivers were finishing work at 1.00pm and would still take the ADO.

The tribunal ruled that there was no evidence before them of a SEA being entered into by the skippy truck drivers or that there was insufficient meal break facilities.

The Commissioner also did ‘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 their subordinates abided by the relevant enterprise agreement that covers them’.

In addition, the Commissioner believed it would be ‘particularly inequitable’ for the drivers to access ADOs without working the hours necessary to accrue the paid time-off.

Lessons for employers

  • Supervisors/ managers need to be aware of the provisions contained within enterprise agreements and appropriately enforce such provisions when managing the workforce. Custom and practice cannot override the express terms of an enterprise agreement because some employees fail to comply with those provisions or management’s lawful direction.
  • SEA’s need to be entered into in accordance with relevant agreements

Click here for the full decision.