One of the state’s biggest private employers has lost in its bid to overturn a controversial workplace ruling that could affect thousands of its current and former staff.
Shahin Enterprises, the company behind the OTR chain of petrol stations, had appealed a ruling from the state’s employment tribunal handed down last June.
The tribunal found that OTR failed to pay a former trainee for 10-to-15 minutes of work undertaken prior to each shift, wrongly deducted 30 minutes from shifts for meal breaks he never took, and failed to pay proper overtime penalty rates.
In a dramatic twist of events this afternoon, the two parties sought leave from the Federal Court five minutes before the judgment was due to be handed down, claiming they had reached a settlement.
However, that was rejected by the court, with Justice Richard White instead declaring the court’s dismissal of OTR’s appeal.
All four grounds put forward by Shahin Enterprises were dismissed by the Federal Court.
Regarding meal breaks, the court rejected Shahin’s claim that it had been denied the opportunity to argue against all of the former employee’s claims, and upheld the finding that the former employee was entitled to be paid for meal breaks that were never taken.
Regarding the failure to pay overtime rates, the court found that a company document signed by the former trainee indicated a general willingness to work overtime, but could not be understood as a request to work particular hours or at ordinary rates of pay.
While OTR will only have to pay less than $3000 to the former trainee, the decision could have much wider implications for the company and for other businesses with similar employment arrangements.
The former trainee – an Indian citizen – was employed by OTR between November 2015 and December 2016 and mostly worked a midnight to 7am shift at the company’s petrol station at Fulham.
He was employed under a collective agreement used by OTR from 2007 to 2018, during which thousands of staff were employed by the company.
OTR currently employs more than 3000 staff. It has transitioned to a new award agreement, requiring staff to record start and finish times electronically.
During the appeal hearing in February, Richard Dalton QC, acting for Shahin, explained the importance of the appeal.
“It defies belief that there would be an appeal in relation to dollars of this small magnitude unless there was a prospect that this was going to be potentially the subject of claims from people who were in the same position,” he told the court at the time.
OTR has previously stated that the employment practices in question, while no longer in place at OTR, are commonly used by other businesses who employ rostered shift workers.
Justice White said that while the court encouraged parties to negotiate and seek resolutions to matters out of court, it was an “ordinary expectation that that would be done in a timely way and that any discontinuance resulting from an agreement will be given effect well and truly before the court delivers its judgement”.
“It’s simply not practical or reasonable to suppose that a full court comprising three members can deal with an application of this kind in the very short notice that the parties have provided.”
In a separate matter, OTR is being targeted for a possible class action by Canberra law firm Adero Law regarding “potential wage underpayments”.
Adero Law solicitor Kellie Pledger told The Advertiser this afternoon that more than 1000 employees had registered interest in the possible legal action, while the firm continued discussions with litigation funders.
OTR has been sought for comment.
Extracted from AdelaideNow