Ettery v The Trustee for the Jane and Allan Domjahn Trust trading as Funeral Transfer Services Australia
[2014] QMC 20
•12 August 2014
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Ettery v The Trustee for the Jane & Allan Domjahn Trust trading as Funeral Transfer Services Australia [2014] QMC 20
PARTIES:
ROBERT JOHN ETTERY
(plaintiff)
v
THE TRUSTEE FOR THE JANE & ALLAN DOMJAHN TRUST T/AS FUNERAL TRANSFER SERVICES OF AUSTRALIA ABN 72 081 737 658
(defendant)
FILE NO/S:
M29/13
DIVISION:
Magistrates Courts
PROCEEDING:
Employment Claim
ORIGINATING COURT:
Magistrates Court at Warwick
DELIVERED ON:
12 August 2014
DELIVERED AT:
Warwick
HEARING DATE:
27 March 2014 with further written submissions received 12 May 2014
MAGISTRATE:
Lee G
ORDER:
The defendant pay the plaintiff $8,407.
CATCHWORDS:
INDUSTRIAL LAW – employment claim – national system employee – terms and conditions of employment – what was agreed – casual driver – whether covered by an award – whether an award free piece worker within the meaning of the Fair Work Act 2009 – whether underpayment
Fair Work Act 2009 (C’th), s 16(2), s 21(1), s 285
Fair Work Regulations 2009 (C’th), r 1.09, r 1.12
Magistrates Courts Act 1921(Qld), s 42A, s 42B,
s 42L(1), s 42L(2)Funeral Industry Award 2010
Road Transport Distribution Award 2010
Road Transport (Long Distance Operations) Distribution Award 2010
Annual Wage Review Order 2011-2012 [2012] FWAFB[1] 5000
Byrne v Australian Airlines Ltd (1995) 185 CLR 410; [1995] HCA 24;
Hawkins v Clayton (1988) 164 CLR 539; [1988] HCA 15
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Toll (FGCT) Pty Limited v Alphapharm Pty Limited and Others (2004) 219 CLR 165
COUNSEL:
C Kroesen (solicitor) for the plaintiff
B Favaro (solicitor) for the defendant
SOLICITORS:
Aaden Lawyers for the plaintiff
Clifford Gouldson Lawyers for the defendant
[1] “FWAFB” means Fair Work Australia Full Bench; National Minimum Wage Orders made pursuant to section 285 Fair Work Act 2009 after annual reviews by an expert panel called the Minimum Wage Panel;
The plaintiff seeks $8,323.72 for underpaid remuneration while employed as a casual driver for the defendant who has, since 24 April 2010, carried on the business of conveying cadavers throughout Australia from premises at Killarney in Queensland. The claim relates to 33 weeks between weeks ending 13 July 2011 and 27 June 2012[2].
[2] Paragraph 8 Statement of Claim;
There is no dispute that the claim has been properly brought as an employment claim under Part 5A of the Magistrates Courts Act 1921 (the Act)[3]. Conciliation was unsuccessful and a certificate to that effect has been filed[4].
[3] Paragraph [1] Statement of Claim and paragraph [1] Notice of Intention to Defend; see sections 42A & 42B of the Act;
[4] See subsections 42L (1) & (2) in Division 2 Part 5A of the Act which provides that a certificate must be filed before the Magistrates Court can hear and determine the matter;
The evidence at trial was by affidavit with cross examination of the deponents. The plaintiff’s affidavit is sworn 13 February 2014 and the affidavit of Jane Domjahn, the Managing Director of the defendant, is sworn 10 March 2014. A number of paragraphs in Ms Domjahn’s affidavit were struck out on a number of bases including opinion, hearsay, and exhibiting statements by others who have not provided affidavits and who were not available for cross examination.
Introduction
The plaintiff commenced employment as a casual driver with the defendant on
17 June 2011. He resigned on 9 August 2012 after the dispute, the subject of these proceedings, was not resolved.
At trial the case primarily presented was one of an oral agreement between the parties[5]. Although the plaintiff advanced that certain awards apply, submissions from both parties did not address the issue of whether the Fair Work Act 2009 (FWA) restricted the parties freedom to agree on additional terms of employment for an award free employee[6]. What is in issue is whether the parties agreed that the defendant pay the plaintiff for accommodation expenses. Given the approach taken by the parties in the conduct of the matter and lack of submissions in that respect, I will adopt the approach the parties appear to have taken that they are not restricted by the FWA to agree on accommodation expenses[7].
[5] Paras [14] & [15] Notice of Intention to Defend; para [3] Statement of Particulars of Claim;
[6] If the Funeral Industries Award 2010 were to apply for example, there is provision for the parties to vary certain terms of the award provided they do not diminish employees’ rights under the National Employment Standards. Any such variation must be in writing: clause 7.4;
[7] Note s 128 & s 129 FWA and reg 2.03 Fair Work Regulations 2009 restrict or modify freedom to contract on matters that either touch on the 10 minimum National Employment Standards or as prescribed by regulation. Reg 2.03 provides freedom of contract to agree to extra annual or carers leave offset by a reduction in an equivalent amount of pay; these provisions do not appear to affect the ability to agree on accommodation expenses;
The Employment Agreement
On 17 June 2011 Ms Domjahn took the plaintiff on his first delivery run for orientation[8]. The purpose of the trip was to provide training to the plaintiff and to agree on the terms and conditions of employment. What is in issue is what was agreed.
[8] See paras [9] & [10] affidavit of plaintiff and paras [18], [19] & [20] & exhibit JD-3 (plaintiff’s worksheets) affidavit of Ms Domjahn;
During the orientation trip the plaintiff says Ms Domjahn verbally offered him employment on the following terms and conditions which he accepted:
(a)pay at 24 cents per kilometre driven by the plaintiff. The plaintiff was to drive the defendant’s vehicle.
(b) a handling fee of $12.50 for each cadaver collected or dropped off.
(c) where applicable, $130 overnight allowance for accommodation and meals.
(d)the plaintiff was to use the employer’s Bank of Queensland debit card to purchase fuel for the defendant’s vehicle and incidentals, for example, plastic for wrapping up cadavers. The card had limited funds available each day and under no circumstances was the card to be used for overnight accommodation without prior authority.
Ms Domjahn agreed that the terms of employment included a handling fee of $12.50 per cadaver and driving fee of 24c/klm. She says that in the weeks where there was no overnight stay, the payment of 24 cents per kilometre as well as the handling fee[9] was paid and the calculation thereof was reflected in those payslips[10]. The claim relates to the 33 weeks when there were overnight stays.
[9] Superannuation was also paid which is not in dispute;
[10] Exhibit RJE-01 plaintiff’s affidavit;
Where an overnight stay was required, Ms Domjahn says she offered the plaintiff one of two options:
(a)the plaintiff is paid handling fees of $12.50 and 24 cents per kilometre driven. He was to pay for over night accommodation by using the employer’s debit card or
(b)the plaintiff is paid the handling fees. However, he pays for the accommodation out of his own pocket. His 24 cents per kilometre rate would be reduced to an amount roughly equivalent to $130 per night[11] so as to reduce his gross pay from which PAYG tax withholdings would be calculated. The $130 per night is then added back on after the net has been calculated. The result is that his take home pay would be greater than option one above. The plaintiff could then claim up to $224 per night as a tax deduction without the need to keep any records[12].
Ms Domjahn said that during the orientation trip the plaintiff rejected the first option and agreed to the second option of paying for the accommodation himself. The plaintiff denies that he was offered the first option of paying for the accommodation with the employer’s debit card and was told not to use it for that purpose.
[11] Paras [22] to [27] Notice of Intention to Defend; Paras [47], [48], [49] Domjahn’s affidavit; curiously, in the example for the week ending 13 July 2011 in the table at [10] of these reasons, the difference between 24 c/klm and 18 c/klm for 2490 klms is $149.40, not $130;
[12] See paras [58], [59] & [63] Domjahn’s affidavit; This amount is assessed by the Australian Tax Office as being reasonable expenses not requiring documentary evidence; see TD 2011/17;
The second option can best be demonstrated by a typical example. For the week ending 13 July 2011 the plaintiff provided information on the kilometres travelled, cadavers handled, and overnight accommodation for that week on a form entitled “Employee Pay and Trip Worksheet”. From that information the employer embarked on the following calculation to work out the plaintiff’s pay for that week on a form entitled “Employees Pay Coversheet” as follows[13] -
[13] See exhibit JD-3 Domjahn’s affidavit at page 13 – the plaintiff’s “Pay Coversheet”;
Total Handling @ $12.50 each
1 cadaver
$12.50
Total kilometres @ 24 c/klm
2490
$597.60
GROSS PAY
$610.10
Less Overnight allowance
1
$130.00
Gross Wage Sub Total
$480.10
Less Tax payable[14]
$43.00
Net Wage Sub Total
$437.10
Add back on overnight allowance
$130.00
Add out of pocket expenses
nil
TOTAL WAGE PAID
$567.10
[14] See PAYG Withholding Weekly Tax Table (NAT 1005) for payments made on or after 1 July 2011 to 30 June 2012 – withholdings on $480 were $43 (from the Tax Free Threshold with leave loading column); withholdings on $610.10 were $63;
The plaintiff’s payslip for that week states gross pay as $610.10 and net pay as $567.10. It then expresses that calculation by adopting a kilometre rate of 18 c/klm to reduce this part of the remuneration by an amount purportedly similar to the amount of overnight allowance[15] -
[15] See exhibit RJE-01 plaintiff’s affidavit at page 18;
DESCRIPTION
HOURS
CALC. RATE
AMOUNT
Casual Klm Rate
2,490
$0.18
$467.60
Handling Fee
1
$12.50
$12.50
Over Night Allow.
1
$130.00
$130.00
PAYG Withholding
-$43.00
If the first option was adopted, the plaintiff’s net pay for that week would be $547.10 ($610.10 gross less $63 tax withholdings) and the plaintiff would have paid accommodation expenses with the employer’s debit card.
If the second option was adopted, while the plaintiff would have a greater net pay of about $20, he still had to pay for the accommodation out of his own pocket which he could then claim as a tax deduction.
The method in the plaintiff’s “Employees Pay Coversheet” was the same for each week where there were overnight allowances. However, the kilometre rate in the payslips varied from week to week to as low as 1c/klm in the week ending 21 September 2011[16]. In that case 1049 kilometres at 1 c/klm came to $16.76 with two nights of overnight allowance of $260. There were no tax withholdings so that the gross pay was $276.76 with a net of $276.76.
[16] See exhibit RJE-01 plaintiff’s affidavit at page 26;
The plaintiff said that when he received his first payslip with an overnight allowance for the week ending 13 July 2011, he noticed the 18c/klm rate. He emailed “Katie”, an administrator for the defendant, advising there was a problem with his pay as it should be 24 c/klm. Katie was not called to give evidence. I note Ms Domjahn did not mention “Katie” in her affidavit even though she had the advantage of having the plaintiff’s affidavit before she prepared hers[17].
[17] Directions for the filing and serving of material were made on 23 January 2014; the plaintiff was to file and serve his affidavit by 4 pm 14 February 2014; the defendant was to file and serve its affidavit by 4 pm 7 March 2014; Ms Domjahn’s affidavit is sworn 10 March 2014;
On or about 14 July 2011 he received a phone call from Ms Domjhan who told him not to worry about the kilometre rate on the payslip and it will all work out in the long run. She told him that a computer program calculated the figures in the pay slips.
The plaintiff said that on each occasion he received a payslip showing a reduced kilometre rate he would query Ms Domjahn who would routinely reply that it will all work out in the end.
After the plaintiff received his PAYG Payment Summary for the year ending 30 June 2012 he reconciled those figures with his figures and discovered that he had been paid the equivalent of 24c/klm and handling fees without any overnight allowance. That is, the kilometre rate had been lowered during the course of that year so that the overnight allowances expressed in the payslips had no net effect. Gross payments in the PAYG summary were $30,861 and “Total Allowances” were $8320[18]. This totals $39,181. He said he should have been paid $47,504.72 and claims in his pleading the shortfall of $8323.72 representing the overnight allowances. I note there were 64 overnights at $130 per night which comes to $8320.
[18] Exhibit RJE-01 at p 71;
Subsequent discussions between the plaintiff and Ms Domjahn did not resolve and the plaintiff resigned.
In support of her claim that the plaintiff was offered and refused the first option and accepted the second option, Ms Domjahn said by virtue of his subsequent conduct he did not use the debit card to pay for accommodation and claimed it on his Employee Pay and Trip Worksheets[19] in order to utilize the second option.
[19] Para [31] Domjahn’s affidavit;
Further she relied on an email chain between her and the plaintiff to that effect[20]. In response to her email dated 7 September 2011 “Could you please advise in the overnight column if you are claiming a night or if FTSA[21] card has been used”, on the same date the plaintiff replied”:
Mmmmmm me thinx (sic) you might have started the “Johnnie Walker” a bit too early…LOL
There were no “overnights” for this pay period …
As for Arthur, I paid him $0.24 per km plus $25.00 for handling and unloading. I ended up giving him $400.00 cash. If you are asking about “overnights” for this time, yep, I had put this down on the previous pay period of Week ending 310811 but I didn’t pay Arthur an overnight.
Hope this is okay. I have attached his pay sheet for your info.
By the way, I would not use the FTSA card for accommodation, full stop!
[20] Paras [26], [27] & [66], [67] & [68] Domjahn’s affidavit;
[21] FTSA – Funeral Transfer Services of Australia
I do not think Ms Domjahn’s interpretation of the last line has the effect for which she contends. It may equally mean that the plaintiff is reassuring Ms Domjahn that, in accordance with a prohibition in using that card for accommodation, he in fact would comply and not use it. That email response alone would not lead me to conclude that the plaintiff was offered option one. His subsequent conduct in not using the card is consistent with his understanding that he may not have used it because he was not offered option one even though he had possession of it for other purposes. Other factors need to be considered.
It should also be observed that, at paragraph [25] of her affidavit, Ms Domjahn characterises the plaintiff’s recording of overnight accommodation on his weekly “Employee Pay and Trip Worksheet” as “the deduction benefit” instead of using the employer’s debit card. There is nothing on those “Employee Pay and Trip Worksheet” forms which indicate anything of the kind. That form, on its face, simply records what the employee had done for that week and is akin to a record of services rendered serving a similar purpose to that of a timesheet.
The plaintiff was emailed a training manual upon commencing employment[22]. Under “Rates of Pay” casual drivers were to be paid 24 cents per kilometre travelled as well as handling fees of $12.50 for each collection and delivery. There is no mention of an entitlement to overnight allowances being paid in line with option one. There is also no mention of the 24 c/klm being reduced in accordance with option two. In fact, there was no mention anywhere about overnight stays and consequent expenses. The defendant submits that the manual does not form part of the employment contract when it was formed. It was provided later. The plaintiff submits that even though the manual is silent on accommodation expenses, this was expressly agreed to on 17 June 2011.
[22] Exhibit RJE-01 at pp 1 -10 plaintiff’s affidavit;
At first glance however, and contrary to Ms Domjahn’s evidence, the training manual seems more consistent with the view that there was no offer in line with option one to pay for the accommodation using the employer’s debit card. The training manual is completely silent on overnight allowances.
It seems rather incongruous that the defendant employer would offer to pay for overnight expenses as per option one but not in option two. It appears that the employer would benefit greatly from option two compared with option one because it doesn’t pay the $130 per night accommodation. Apart from the vague suggestion by Ms Domjahn that the plaintiff did not incur actual accommodation expenses on occasion by staying with friends etc. coupled with the ability to then claim tax deductions without documentary verification, it is difficult to see what benefit there would be for the plaintiff other than claiming that expense as a tax deduction after he has paid it out of his own pocket! At best the deduction might save a small amount of tax.
Ms Domjahn included in her affidavit an email dated 15 January 2013 from Mr Brett Bender who supports the defendant’s current position. He was said to have been an accounts advisor to the defendant as well as a driver[23]. Mr Bender, did not provide his own affidavit, was not called to give evidence, and no explanation was given as to why not. This evidence has been excluded. I was invited to draw an adverse inference against the defendant because he was not called to give evidence: Jones v. Dunkel (1959) 101 CLR 298; [1959] HCA 8. I decline to do so. His version, if admitted and accepted, simply supports the version of events outlined by Ms Domjahn. It is not a case where that witness could give a version not otherwise in evidence to rebut or explain the opposing case. Further, the defendant attempted to put it into evidence albeit in the wrong format.
[23] Paragraphs [51] to [54] and exhibit JD-4 to Ms Domjahn’s affidavit;
However, I accept on balance the plaintiff’s evidence. I find on balance that during the orientation trip on 17 June 2011, the terms of employment offered and expressly accepted were those outlined at paragraph [7] above. That is, he would be paid handling fees of $12.50 per cadaver, 24 cents per kilometre driven, $130 per night for necessary accommodation and that he was not to use the employer’s debit card to pay for the overnight accommodation. I accept that the plaintiff queried the employer consistently about this and he was simply told that it will all wash up in the end. Of course, when he got his end of year statement of earnings, he discovered that the employer had not paid the $130 per night accommodation at all. He resigned shortly thereafter.
In view of my findings, this is not a case of considering the principles of implying terms into contracts as outlined in Hawkins v Clayton (1988) 164 CLR 539 at 573 and Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 423.
Further, it was submitted for the defendant in citing a passage from Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] 219 CLR 165 at [40] that subjective beliefs or understandings of the parties do not govern contractual obligations:
It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words or conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement.
The plaintiff’s conduct relied on by the defendant is his failure to use the employer’s debit card to pay for the accommodation and claiming it on his weekly “Employee Pay and Trip Worksheet”. As I have outlined earlier, this conduct in itself does not necessarily mean that by doing so he has rejected the defendant’s option one and adopted the second option. It is also consistent with his version of what was agreed. The versions of the parties as to what was expressly agreed on that orientation trip conflict. I accept that the plaintiff continually queried his pay in accordance with his version of events and was erroneously told that it will all work out in the end. Further, I accept the plaintiff’s evidence about what was expressly offered to him which he accepted.
I find that the plaintiff has been underpaid $8320. This represents 64 overnights at $130 per night.
I invited further submissions on the impact, if any, of the Fair Work Act 2009 or any applicable award.
The Fair Work Act 2009 and Application of any Award
The employer/employee relationship between the parties is governed by the Fair Work Act 2009 (C’th) (FWA) which provides for National Employment Standards (NES) in Part 2-2 thereof.
The NES provides for 10 minimum standards of employment summarised in section 61 FWA[24]. The scheme allows for awards to supplement or improve the NES standards but not to diminish employee’s rights given by the NES standards. Any provision that purports to do so has no effect.[25]
[24] They are: maximum working hours, requests for flexible working arrangements, parental leave and related entitlements, annual leave; personal/carer’s leave and compassionate leave, community service leave, long service leave, public holidays, notices of termination and redundancy pay, and Fair Work Information Statement. The latter is prepared and published in the Gazette by the Fair Work Ombudsman and employers must give a copy to employees at commencement of employment: s 124 & s 125 FWA;
[25] Sections 55, 56, 136(2)(b) & 137 FWA;
The scheme in the FWA provides for “award/agreement free” employees where an award does not apply.
Section 12 FWA provides:
award/agreement free employee means a national system employee to whom neither a modern award nor an enterprise agreement applies
The defendant’s primary position is that the plaintiff was an award free “pieceworker” as defined in section 21 FWA and reg. 1.12 Fair Work Regulations which provide:
21 Meaning of pieceworker
(1) A pieceworker is:
…
(c) an award/agreement free employee who is in a class of employees prescribed by the regulations as pieceworkers.
1.12 Meaning of pieceworker
(1) For paragraph 21(1)(c) of the Act, this regulation prescribes a class of award/agreement free employees as pieceworkers.
(2) The class is award/agreement free employees who:
(a) are paid a rate set by reference to a quantifiable output or task; and
(b) are not paid a rate set by reference to a period of time worked.
Examples of rates set by reference to a quantifiable output or task
1 A rate of pay calculated by reference to the number of articles produced.
2 A rate of pay calculated by reference to the number of kilometres travelled.
3 A rate of pay calculated by reference to the number of articles delivered.
4 A rate of pay calculated by reference to the number of articles sold.
5 A rate of pay calculated by reference to the number of tasks performed. (my emphasis)
The defendant submitted that the plaintiff was an “award/agreement free” employee as defined in section 12 FWA and that the plaintiff was paid in excess of the minimum wage. Alternatively, it was submitted that even if any of the awards proffered by the plaintiff apply, the plaintiff was paid in excess of the minimum rates prescribed by those awards. This is on the basis that the defendant was paid at 24 c/klm without any reference to accommodation expenses.
If the plaintiff was a “pieceworker” his rate of pay would be determined by reference to a formula in regulation 1.09 and the national minimum wage for the 2011 -2012 year which was $19.63 per hour (with 23% casual loading)[26]. On the defendant’s assumption that the average speed is 100 kph at 24 c/klm, the rate of pay would be $24 per hour which exceeds the national minimum wage. On the other hand, if the average speed was 85 kph as put by the plaintiff (which is more likely), the rate of pay would be $20.40 per hour which still exceeds the national minimum wage. Taking the approach outlined earlier, nothing in the FWA affects the terms of the agreement I have found between the parties regarding the payment of accommodation expenses. The FWA is silent on accommodation expenses for pieceworkers.
[26] National Minimum Wage Order 2012 [2012] FWAFB 5000;
I accept the defendant’s submissions that the FWA has not been compromised if the plaintiff was a “pieceworker”. That is, the plaintiff was not paid below the national minimum wage.
On the other hand the plaintiff submitted that the Funeral Industries Award 2010, the Road Transport and Distribution Award 2010 or the Road Transport (Long Distance Operations) Distribution Award 2010 applies and that he was paid less than the provisions in those awards.
The Funeral Industry Award 2010 (FIA) covers employees in the “funeral industry” as defined[27]:
Funeral industry means the provision of funeral services, coffin manufacturing, the removal of deceased human remains and any ancillary services (my emphasis)
Funeral services means the preparation, arrangement and assistance in conducting a ceremony to mark a person’s death and /or alternatively disposing of a person’s remains, including but not limited to the removal of human bodies and remains, preparing human bodies and remains for disposal, burial, or cremation (my emphasis)
[27] Clause 3.1 of the FIA;
The relevant part of both definitions in this case is the meaning of “removal”.
“Removal” in clause 3.1 FIA means the transfer of deceased human remains from a range of places to the mortuary of a funeral director and includes a transfer requested by police. It does not include any subsequent transfer of remains between the funeral director’s premises to a range of other places. The evidence on this point is most unsatisfactory. While the defendant submitted that the plaintiff’s work fell outside the meaning of “removal” on that basis, on the state of the evidence such as it is, I am unable to find whether the plaintiff’s work fell within the meaning of “removal” or not. The onus lies with the plaintiff to show that the FIA applies. Also, it is not at all clear whether the plaintiff’s work fell within “ancillary services” in the definition of “Funeral industry”. Relevantly in this case, the “ancillary services” would most likely need to be related to a “removal” as defined. However, submissions did not canvass these points.
The Road Transport Distribution Award 2010 (RTDA) provides coverage for employees in the “road transport and distribution industry” as defined. It is an extensive definition canvassing paras (a) to (i) in clause 3.1 RTDA.
(a) the transport by road of goods, wares, merchandise, material or anything whatsoever whether in its raw state or natural state, wholly or partly manufactured state or of a solid or liquid or gaseous nature or otherwise, and/or livestock, including where the work performed is ancillary to the principal business, undertaking or industry of the employer. … (my emphasis)
(b) the receiving, handling or storing of goods, wares, merchandise, material or anything whatsoever whether in its raw state or natural state, wholly or partly manufactured state or of a solid or liquid or gaseous nature or otherwise in a distribution facility
Paragraph (c) is in similar terms in the context of handling those goods etc in connection with air freight forwarding and customs clearance. The remaining definitions refer to transport etc of meat (para (d)), mobile food vending (para (e)), petrol etc. (para (f)), crude oil etc. (para (g), bulk milk and cream etc (para h), and quarried materials (para i)).
The plaintiff submitted that the words “or anything whatsoever” includes cadavers and human remains. I do not agree. In reading the definition as a whole, I agree with the defendant’s further submissions dated 12 May 2014[28] that this award contemplates coverage of the transport, handling, storing etc of things the subject of commerce or industry. To include cadavers or human remains in “or anything whatsoever” in the context would be a quantum stretch. In my view the RTDA does not apply to the plaintiff.
[28] Paras [11] & [12] thereof;
The plaintiff submitted that the Road Transport (Long Distance Operations) Distribution Award 2010 (RTLD) applies to those interstate trips or trips that exceed 500 kilometres. Even if covered by this award and despite the plaintiff’s brief assertion in submissions[29] that all trips fall within that category, it would be difficult if not impossible on the evidence to identify which trips apply. The RTLD provides coverage[30] for employees in the “private transport industry” engaged in “long distance operations” as defined[31].
Private transport industry means the transportation by road of all materials whether in a raw or manufactured state, or of livestock, throughout Australia. (my emphasis)
Long distance operation means any interstate operation, or any return journey where the distance travelled exceeds 500 kilometres and the operation involves a vehicle moving livestock or materials whether in a raw or manufactured state from a principal point of commencement to a principal point of destination. An area within a radius of 32 kilometres from the GPO of a capital city will be deemed to be the capital city. (my emphasis)
Interstate operation will be an operation involving a vehicle moving livestock or materials whether in a raw or manufactured state from a principal point of commencement etc. (my emphasis)
[29] Para [6] Further Submissions dated 12 May 2014;
[30] Clause 4.1 RTLD;
[31] Clause 3.1 RTLD;
As with the RTDA, having regard to the words in those definitions, i.e. materials, livestock, raw or manufactured state, the RTLD in my view contemplates transportation of things the subject of commerce or industry. It does not cover the conveyance of cadavers or human remains interstate or at all.
The conclusion that “material” does not include cadavers or human remains is supported by reference to the ordinary meaning of “material” not defined in the RTLD (and also the RTDA). The Concise Oxford Dictionary relevantly provides the following meanings:
5. Matter from which thing is made (RAW material); …elements, constituent parts, (of substance, for historical composition etc.); cloth, fabric; …things needed for an activity (building, cleaning, writing, materials);
The Macquarie Concise Dictionary provides a similar meaning for “material”:
1. The substance or substances of which a thing is made or composed. 2. any constituent element of a thing. 3. anything serving as crude or raw matter for working upon or developing. … 7. articles of any kind requisite for making or doing something.
In summary, I find that the plaintiff has not discharged the onus of showing that the FIA applies and that for reasons given, the RTDA and RTLD do not apply. The plaintiff was therefore a “pieceworker” under the FWA.
Conclusion
While I agree with the defendant’s submissions that the plaintiff was an award free “pieceworker”, this does not assist it in the outcome of the case. I have found that on 17 June 2011 the parties agreed, as they were entitled to do, that the defendant would pay the plaintiff accommodation expenses. This is in addition to his handling fee and driving fee. He was not paid those expenses in the amount of $8320.
I order the defendant pay the plaintiff $8320 plus $47.50 filing fee plus $39.50 bailiff’s service fee. This totals $8407.
I will hear the parties as to costs.
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