Day 214 - 01 02 96 - Page 71

 
 

                                                                  DAY 214
 
 
 
 
 
     1   MS. STEEL:   Just so that it is on the record as to what exactly
     2        they are saying, because the letter is worded, well, it
     3        takes a bit of reading to understand what they are saying.
     4        I am assuming that they are agreeing that they are bound by
     5        the part that says, "provided that an assistant employed in
     6        the sale of refreshments or in the sale by retail of
     7        intoxicating liquors need not be allowed the interval for
     8        dinner between 11.30 a.m. and 2.30 p.m. if he is allowed
     9        the same interval so arranged as either to end not earlier
    10        than 11.30 a.m. or to commence not later than 2.30 p.m.",
    11        so that anybody who does not get at least some part of
    12        their breaks between those hours is in breach of the law up
    13        until December 1994.  If that is not what the Plaintiffs
    14        are saying, then ------
    15
    16   MR. JUSTICE BELL:  The way I read it -- I will hear full
    17        argument in due course if there is any dispute -- is if you
    18        are an employer who in a particular workplace can take
    19        advantage of the proviso, you need not meet paragraph 1,
    20        provided that there is an appropriate break given which
    21        ends at 11.30 or later or commences at 2.30 or earlier,
    22        which is just really another way of expressing how I read
    23        the proviso.
    24
    25   MS. STEEL:   Yes.
    26
    27   MR. JUSTICE BELL:  But we will see.  That is the way I read it
    28        at the moment.
    29
    30   MS. STEEL:  That is what I understand the Plaintiffs have
    31        written.  I mean, if that is not what they have written,
    32        perhaps they can say so.
    33
    34   MR. RAMPTON:  No, it is our present view; the letter says "it
    35        seems to us".
    36
    37   MR. JUSTICE BELL:  There may be more water under the bridge,
    38        I do not know.
    39
    40   MR. RAMPTON:  I think that is right.  It is a stinker of an
    41        Act.  There is very little case law on it.  I am not
    42        certainly willing to commit myself at the moment.  That is
    43        our present view.
    44
    45   MR. JUSTICE BELL:  I would expect there to be very little case
    46        law because the provision, as I have read it just through
    47        once and looking again, seems to be clear.
    48
    49   MR. RAMPTON:  The difficult bit -- I make no secret of this --
    50        is perhaps not provision;  the difficult bit is the meaning 
    51        of the word "allowed" on which there is no authority at 
    52        all. 
    53
    54   MR. JUSTICE BELL:  Yes.  We will come to that maybe in due
    55        course.  It is a point I raise myself, the difference
    56        between entitlement and having to have something.
    57
    58   MR. RAMPTON:  Yes.
    59
    60   MR. JUSTICE BELL:  But I can see there are all sorts of
 
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