Facts of case
The company claimed that drivers who took full-length meal breaks after arriving at the depot behind schedule were the main cause of cancelled services. It claimed that the agreement provided to pay drivers up to the start of their unpaid meal breaks and provide at least a 40-minute break if they had partially worked through it due to unforeseen circumstances, or 30 minutes where disruptions were due to an emergency. It claimed that it was not obliged to extend the length of the meal break to make up for the part of the meal break that has been worked.
The union claimed the company had unilaterally reduced the length of meal breaks and misrepresented their actual entitlements to the drivers. It argued that drivers were entitled to a meal break of up to 90 minutes on weekdays and 70 minutes on weekends when they returned late to the depot. Breaks could only be reduced if there had been an emergency, or late running disrupted services on multiple routes. It claimed that the employer’s directive would breach the Fair Work Act 2009.
The union also relied on previous correspondence with the employer. The employer had stated that "if a driver is late for their meal break due to late running and requests their full rostered meal break" [the employer] "will make arrangements to allow the driver to take their full rostered meal break... The driver will not be disadvantaged for requesting their full rostered meal break by way of withholding payment until they pick up their rostered run."
The union had claimed that drivers who started their meal breaks late but insisted on taking a full-length break would lose pay.
The Federal Court held that the employer would not breach the enterprise agreement (and therefore the Act) by issuing its directive. The agreement allowed it to roster the length of unpaid meal breaks "for periods of time within the ranges specified", and the 40-minute minimum rostered break was within the ranges.
Given that trams running late was a common occurrence, there needed to be flexibility in the provisions.
It added that the previous correspondence referred to above was “promissory in nature” and not sufficiently connected to the current issue to be given much weight. It referred to payment after a meal break had ended.
The court then directed the parties to confer on orders for the further conduct of the case.
Read the judgment: Australian Rail, Tram and Bus Industry Union v KDR Victoria Pty Ltd t/a Yarra Trams  FCA 1377 (22 November 2021)