Servo worker gets $65k for no toilet breaks

 

South Australia's biggest private employer has been forced to pay $64,800 to a former staff member after not providing toilet breaks.

Shahin Enterprises, the company behind the OTR chain of petrol stations, was found to have underpaid former staff member Thomas Mathew in three ways last year in a South Australian Employment Tribunal judgment.

Mr Mathew applied for penalties to be imposed on his former employer after the judgement which found he had been underpaid $2663.91 for his work as a part-time console operator between November 2015 and December 2016.

Shahin Enterprises was found to have contravened the Fair Work Act by not paying wages for work done before the shift's start, for deducting pay for meal breaks not taken, and by not paying overtime in January 2016.

Mr Mathew was instructed to get to work 10 minutes early for a shift handover but wasn't paid for that time.

He also wasn't given any meal breaks during six-hour shifts.

His site manager, Michael Vezspeller, said over the course of up to 1.5 hours Mr Mathew could usually be able to take a number of short breaks between serving customers, which together would add up to 30 minutes, satisfying the meal break definition of his employee agreement.

The man worked at an On The Run petrol station in South Australia. Picture: Mark Brake
The man worked at an On The Run petrol station in South Australia. Picture: Mark Brake

But the judgement found this did not meet the agreement's conditions.

"The applicant was then given an instruction to eat a meal before he attended work, and that he should not go to the toilet while at work because the toilet was outside the building and the store would need to be locked for that purpose," tribunal deputy president Stephen Lieschke found.

"While I found the instruction to not use the toilet was meant as a goal, the instruction was taken seriously and adhered to by the applicant.

"Due to the broad range of duties to be completed the applicant did not generally have time for a meal break of 30 minutes that was meaningful to him.

"Due to a combination of the above instructions and the lack of opportunity for a refreshing break from work duties, the applicant worked throughout the whole of his shifts."

Mr Vezspeller said the payroll system automatically deducted the 30 minutes pay.

Mr Mathew was also asked to work voluntary overtime hours at ordinary rates of pay.

Shahin Enterprises appealed the original judgment which was dismissed in March.

Judge Lieschke found Mr Mathew lost 15 unpaid minutes and 30 paid worked minutes docked for each long shift, which was more than 10 per cent of his low trainee wages.

He said the unpaid work contravention was "brazen" and "very serious".

"It was deliberate exploitation of a low-paid hard-working employee," he said.

"It was not careless or the result of a mistake ... It was systematic and backed by the possibility of disciplinary action."

The company was ordered to pay Mr Mathew $27,000 in wages, $24,300 for deducting meal breaks and $13,500 for unpaid overtime.

It also faces a class-action lawsuit filed in May alleging underpayments to more than 8000 current and former employees totalling $50-70 million in lost wages.

Shahin Enterprises has said it would defend the claim and has offered to correct any payment errors.

Originally published as Servo worker gets $65k for no toilet breaks



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