5. The business was run as a family business. The sole shareholders and directors being Louis Coburn Falconer, his wife and daughter.

6. Breaches of the Award are alleged in relation to four employees of the respondent, Shaun Edwards, David Campbell Luck, Harry Ritzau and Ronald Patrick Cooper. Various provisions of the Award are alleged to have been breached in relation to each of those employees. The principal allegation, however is that, contrary to clause 14(a) of the Award, the respondent failed to pay to each of those employees all wages including payment for overtime due to the employee. The applicant asserts that, under the provisions of the Award which were binding on the respondent, Messrs Edwards, Luck and Ritzau should each have been paid at the rate of wages prescribed from time to time under clause 5(a) for an operative baker and Mr Cooper at the rate prescribed from time to time under that clause for a doughmaker. It is also asserted that other amounts were payable in relation to one or other of those employees under clause 5(b)(i) relating to the working of ordinary time before 5.00 a.m. on any day, clause 12(a) relating to overtime, clause 12(f) relating to the working of a sixth shift of a week and clause 24(b) prescribing a laundry allowance. It is appropriate to mention at this stage that, in the course of the proceedings, the application and the statement of claim filed on behalf of the applicant were amended. The amendments to the statement of claim were such that the allegations in their amended form are substantially different from those originally made.

7. The Award (Print E3352), which was made on 11 July 1980 and was expressed to come into operation as from the beginning of the first pay period to commence on or after 7 July 1980, superseded all previous determinations and awards relating to employment covered by it. It was amended on a number of occasions prior to the expiration of the period with which this proceeding is concerned. It is not alleged that its provisions became binding on the respondent by reason of its being a party thereto or by reason of its membership of an organization party thereto. The provisions of the Award as they were at particular dates are, however, alleged to have become binding on the respondent by reason of declarations made from time to time under s.49 of the Act declaring terms of the Award to be, in the Australian Capital Territory, a common rule of the industry covered by the Award. Relevant common rule determinations were made on 26 September 1980 (Print E4579), 2 April 1982 (Print E9159) and 1 February 1983 (Print F1581).

8. Counsel for the respondent contended that the Award had no application to employees in an establishment such as the Hawker Bakery. He submitted that the Award applied only to employment in what was described as a plant bakery by which I understood counsel to mean an establishment, in the nature of a factory, where bread was baked on a large scale for sale by wholesale. What took place in such an establishment was said to form part of an industry and was to be distinguished from the kind of small scale activity, such as occurred in the Hawker Bakery, in what was, in effect, only a retail shop. Some support for this proposition was said to be found in the list of classifications of employees in clause 5 of the Award, a number of which were said to be clearly inappropriate in an enterprise such as the Hawker Bakery. Further support was sought to be found in the provision in the Award requiring a separate meal room for employees, a requirement clearly apt, so it was said, in the case of a factory but quite inappropriate in the case of a retail shop where baking takes place. A further indication of its inapplicability was found in the complicated provisions which it contained, provisions the understanding of which, it seemed to be suggested, would require resources beyond those ordinarily available in a small retail business.

9. I remain unconvinced by this submission. The language of the Award is quite general and I can see no reason to read it down so as to exclude from its purview the baking operations which might take place in an establishment such as the Hawker Bakery. Such operations, in my opinion, form part of the baking industry in the Australian Capital Territory, that being the industry specified in the relevant common rule determinations.

10. In the light of that conclusion, it is convenient to turn to the question whether Messrs Edwards, Luck and Ritzau fell within the classification "operative baker" in the Award and whether Mr Cooper was a "doughmaker".

11. At all material times clause 5(a) of the award provided:

"a constant hand of a classification specified

in the table hereunder (other than an apprentice

or an employee in respect of whom a certificate

under section 48 of the act is in force) shall

be paid not less than the wage per week assigned

to that classification."

While the rate of wages prescribed for the various classifications varied from time to time, the classifications remained constant. They were:

"Foreman in charge of 4 or more employees

Foreman in charge of less than 4 employees

Doughmaker-in-charge

Doughmaker

Ovensman

Assistant

Operative baker"

12. The expressions "Doughmaker", "Assistant" and "Operative baker" were defined in clause 30 as follows:

"'Doughmaker' means an operative baker primarily

employed in the mixing or making of any dough by

hand or by machinery."

"'Assistant' means an employee employed in a

machine shop doing work not covered by any other

definition."

"'Operative baker' means a person engaged in the

mixing, making, moulding, weighing (except check

weighing from a divider), or baking, by hand or

machine, of dough for bread or bread rolls, or

in the taking of dough pieces for bread or bread

rolls to a prover or moulder, or in the handing

on or stripping of any oven in connection with

the baking of bread."

The expression "constant hand" was not defined in the Award.

13. At all material times clauses 9 and 10 of the Award prescribed the rates of wages payable to juniors (those under 21 years of age) and apprentices respectively.

14. Mr Edwards gave evidence that he commenced employment at the Hawker Bakery in March 1981 when he was 16 years of age and worked there until August 1982. It may be noted that the breaches alleged relate to the period from 3 October 1981 to 10 September 1982. Mr Edwards said that he had been employed as an apprentice baker. He said he had originally applied for and obtained a job at the Hawker Bakery as a week-end hand. That position involved working only at week-ends doing cleaning duties and generally assisting those engaged in baking. He said he was later approached by Mr Falconer who ran the business and asked if he wished to become an apprentice. He then apparently commenced to work on a full time basis. For reasons which were not explained, no indentures of apprenticeship were ever entered into. Asked what he was doing at the bakery, he said:

"Dough making, making of buns, loading of ovens,

unpacking of ovens, delivery of bread, doughnut

making, pie making."

The reference to the delivery of bread appears to have related to the supply of bread to the other retail outlets operated by the respondent. Mr Edwards also said that most of his time was spent in relation to the making of bread, with only a small proportion of his time spent in relating to the making of other products. He also gave the following evidence:

Q. Mr Edwards, you told the Court that you

were employed until August 1982. In the

course of the time that you were

employed there did your duties ever

change?

A. There was a gentleman there, Mark

Summerville, he left a month or so, by

memory, before I did and when he left I

then was making the majority of the

doughs.

Q. And what do you mean by that?

A. The bread doughs.

Q. And you were making them yourself?

A. Yes.

Q. Was anybody helping you?

A. There was very little supervision

around.

Q. Apart from making bread did you make

anything else?

A. There was the buns to be made for a

morning. That is like the sweet buns

and that.

Q. What sort of dough are they made from?

Is it a yeast dough or is it something

else?

A. Yes, it is. And also at the completion

of some days after the doughs had been

made for the bread I had to make up

shortbread and puff pastry in the mixer

for the pastry cooks.

15. On that evidence I am not satisfied that the duties on which Mr Edwards was engaged during the period from 3 October 1981 to 10 September 1982 were those of an operative baker within the meaning of that expression in the Award. Having regard to his age, the absence of any evidence to show that he then had the necessary skill and experience to undertake the responsibility of a position of operative baker and the fact that the offer which he accepted was an offer to become an apprentice, I infer that he was carrying out the tasks of which he spoke in his evidence under supervision and with a view to learning the trade.

16. Mr Luck gave evidence that he commenced employment at the Hawker Bakery in August or September 1982 when he was 17 years of age. He responded to an advertisement over the radio for a baker/pastry cook apprentice. He commenced, he said, on a three months' trial basis. His employment, in fact, continued for between 8 and 10 months, his employment ceasing in March or April 1983. It may be noted that the breaches of the Award in relation to Mr Luck are said to have occurred between 13 August 1982 and 30 April 1983. Asked what work he did during the period of his employment, he said:

"Normal procedures carried out by an apprentice,

which is helping the baker out; just do odd jobs

to start off."

Q. Well, what sort of jobs?

A. Help with moulding up of doughs, help

with provers, the ovens, stripping

bread.

Q. What is "stripping bread"?

A. Taking off the tray and packing it all

up.

Q. What else did you do?

A. Deliveries.

Q. Roughly how much of your time was spent

in matters to do with the preparation of

the bread and how much was spent in

doing things like deliveries?

A. Roughly 5 to 7 hours of doing bread,

various cakes, sometimes pies, and then

deliveries, clean up.

Q. How long did the deliveries take?

A. Depending on which area I went to, it

could be an hour to an hour and a half.

Q. Now, you have mentioned that you also

made I think cakes and pies and a few

other things that you just listed then.

In relation to the amount of time you

spent making bread or being involved in

the making of bread, how much time did

you spend making other things apart from

bread?

A. A couple of hours a day.

Q. How much was spent on doing things to do

with bread and how much was spent on

doing things to do with cakes and so on?

A. Say up to 7 hours on bread. Maybe two,

three hours on cakes sometimes,

depending on how much was to be made."

17. Indentures of apprenticeship were not in fact signed and he left his employment at the Hawker Bakery to take up an apprenticeship with another employer.

18. Again, Mr Luck's evidence does not satisfy me that the duties he performed entitled him to be classified as an operative baker within the meaning of that expression in the Award. He clearly regarded himself as performing duties akin to those ordinarily performed by an apprentice assisting generally in the work to be done in the bakery.

19. Mr Ritzau was employed at the Hawker Bakery for two weeks only. The evidence is, however, not entirely clear as to the precise dates of his employment. The breaches alleged puts it as being the period from 28 November 1982 to 10 December 1982 though, on the evidence, it may have been from 28 October 1982 to 10 November 1982. Nothing, however, turns on the precise dates. The evidence he gave as to his duties was as follows:

Q. What sort of work was that?

A. Making doughs, making bread rolls,

baking bread in the oven, helping with

meat pies, sausage rolls, washing up,

cleaning, icing fruit buns and other

little bits and pieces and cleaning up.

Q. As a proportion of your total working

time, about how much was spent on work

to do with bread and how much was spent

on work of other kinds?

A. About six and a half to seven hours

baking bread - in the production of

making bread.

Q. And the rest of the time was on other

duties?

A. Yes, on washing up and other bits and

pieces.

20. Although the evidence is scanty, I am prepared to find, and I do find, that Mr Ritzau was employed on duties falling within the classification of operative baker in the Award.

21. Mr Cooper was at the relevant time a qualified baker and had been so qualified for a number of years. He gave evidence that he commenced employment at the Hawker Bakery in December 1982 and ceased being so employed on 16 December 1983. He said that his duties were "just the normal duties of a baker". He said he "made doughs, fruit bread, rolls, took the bread out of the oven, stripped the bread". He also cleaned up after the baking was finished. The doughs he made were yeast or bread doughs and were mixed by machine, albeit an antiquated one, operated by electricity. Sometimes he would assist in the making of pies and pastries.

22. While the evidence is clearly sufficient to bring Mr Cooper within the classification of operative baker, it does not satisfy me that he was "primarily employed in the mixing or making of any dough by hand or by machinery" so as to bring him within the classification of doughmaker. In his evidence Mr Cooper placed no greater emphasis upon the mixing or making of dough than he did upon the other duties he performed, regarding all he did as falling within "the normal duties of a baker".

23. It follows from what has been said that the breaches of clause 14(a) of the Award as alleged in the amended application in relation to Messrs Edwards, Luck and Cooper, read in the light of the particulars given in the amended statement of claim, have not been established. The present proceeding does not raise the question, for example, whether Mr Cooper was paid all the wages, including payment for overtime, due to him as an operative baker within the meaning of the Award. I should, however, say that, in the light of Mr Cooper's denial and in the absence of any record of the payments, I do not accept Mr Falconer's evidence that Mr Cooper was paid each week an amount of $100 in cash in addition to the amount shown on his pay envelope. I should also add, lest my silence be taken as assent, that I make no finding that the calculations set out in the schedules to the amended statement of claim correctly reflect either the evidence or the true meaning and effect of the terms of the Award under which the calculations have been made.

24. The further comment should be made that, in the light of the conclusions to which I have come, it is unnecessary to consider whether a declaration that the terms of an award are to be a common rule in an industry can be given retrospective effect as was purported to be done in the declaration embodied in Print E9159, a declaration made on 2 April 1982 and purporting to operate from 8 February 1982 and the declaration in Print F1581, a declaration made on 1 February 1983 and purporting to operate from 9 December 1982.

25. Breaches of clause 11 of the Award are also alleged in relation to Messrs Luck, Ritzau and Cooper. It is alleged in each case that the respondent required the employee during certain specified periods "to work more than the ordinary hours specified in clause 11(a)(i) of the Award". It is also alleged that the employees were required on each working day during the specified period "to work more than five hours without a thirty minute meal break in breach of clause 11(d)(i).

26. Clause 11(1)(a) specified that the ordinary hours were to be 40 in each week to be worked in five days. However, in my opinion, it was not a breach of the Award to require an employee to work more than the ordinary hours so prescribed. The Award clearly contemplated that work might be performed in excess of the number of ordinary weekly hours and provided for penalty rates in respect of the time so worked (see clause 12).

27. It may be accepted, although there is some difficulty concerning the numbering of the clause (see Print E4376), that clause 11(d)(i) of the Award as applicable to the Hawker Bakery pursuant to the declaration of common rule made on 2 April 1982 (Print E9159) provided:

"(i) The ordinary hours of work shall be

calculated from the time when the

employee begins work.

On all days an employee shall receive

and complete one continuous half-hour

meal break to commence after the

expiration of three hours and not later

than five hours of the starting time

prescribed in subclause (c) of this

clause.

In any instance where it is not possible

to grant the meal break of half an hour,

during the period specified herein, the

meal break shall be treated as time

worked and paid for at the appropriate

overtime rate prescribed by this award

until the employee is released for a

meal break of a continuous half-hour."

28. The evidence is sufficient to warrant the conclusion that the respondent did breach this clause of the Award. No evidence was adduced on behalf of the respondent that, in each instance where it occurred, the failure to afford the employees concerned a meal break in accordance with the clause was due to circumstances making it not possible to do so. It follows that, had I not been of opinion that the proceeding had not been instituted by an authorised person, I would have found that the respondent committed breaches of clause 11(d)(i) of the Award.

29. Breaches of clause 14(b) of the Award are alleged in relation to Mr Cooper in that the respondent failed, prior to each pay day during the period between 10 December 1982 and 16 December 1983, to provide him with a statement in writing of the amount of wages to which he was entitled and the amount of the deductions made therefrom.

30. The evidence is sufficient to establish that the respondent committed breaches of the Award in this regard. Mr Cooper gave evidence that he received pay envelopes stating only the net sum being paid, giving no details, for example, of deductions made for income tax purposes. He was not cross-examined on that aspect of his evidence and no evidence to the contrary was adduced on behalf of the respondent.

31. It is further alleged that the respondent committed a breach of clause 17(d) of the Award in that, on the termination of his employment, it failed to pay Mr Luck pay on a pro-rata basis for each completed month of service calculated at the rates prescribed in clause 5(a) and (c) of the Award.

32. As appears from the particulars given of this breach, it was alleged on the basis that Mr Luck was entitled to be paid at the rates prescribed from time to time by the Award in respect of the classification "operative baker". As I have concluded that he was not so entitled, the breach as alleged has not been established.

33. Breaches of clause 21(a) of the Award are alleged in relation to Messrs Edwards, Luck, Ritzau and Cooper. The allegation is that the respondent failed to keep a record of the matters mentioned in that clause, namely a record from which could be readily ascertained the Christian name and surname of each employee and his occupation, the time each employee commenced and ceased work each day, the total number of hours each employee worked during each day and the wages and allowances paid each week.

34. The evidence does not establish that there was a breach of this clause of the Award.

35. Breaches of clause 24(b) of the Award are also alleged in relation to each of the four employees previously named. It is alleged that the respondent failed to provide each of those employees with overclothing as specified in that clause.

36. The evidence clearly establishes that no overclothing was provided to any of the employees concerned.

37. Finally, a breach of clause 20(a) of the Award is alleged in that the respondent failed to have a copy of the Award, together with all variations thereof, posted in a prominent place in the bakery so as to be legible to the employees, that breach being alleged to have occurred on 31 July 1984.

38. The evidence is sufficient to establish his breaCh

39. It follows that, had I concluded that the proceeding had been instituted by a person authorised to do so under sub-s.119(2) of the Act, I would have held that the respondent had committed breaches of clauses 11(d)(i) and 24(b), a breach of clause 14(b) and a breach of clause 20(a) of the Award. However, as I am of opinion that the applicant was not, at the date of the institution of the proceeding, a person so authorised, the application is dismissed.