Laycock v J and C Independent Carriers Pty Ltd
[2018] FCCA 6
•12 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LAYCOCK v J & C INDEPENDENT CARRIERS PTY LTD | [2018] FCCA 6 |
| Catchwords: WORDS AND PHRASES – Loading and unloading. |
| Legislation: Fair Work Act 2009 (Cth) Heavy Vehicle National Law Act 2012 (Qld) |
| Cases cited: Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd [2014] FWCFB 7447 Bewley v Linfox Interstate Transport [1988] SAIRC 62 Burge v Adelaide Interstate Loading Agency Pty Ltd [2014] SAIRC 31 Jones v Post Transport Pty Limited [1999] NSWCIMC 3 Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148 Transport Workers’ Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829 |
| Applicant: | CHRISTOPHER HERBERT LAYCOCK |
| Respondent: | J & C INDEPENDENT CARRIERS PTY LTD |
| File Number: | BRG 856 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 10 August 2017 |
| Date of Last Submission: | 6 September 2017 |
| Delivered at: | Sydney |
| Delivered on: | 12 February 2018 |
REPRESENTATION
Applicant in person
| Counsel for the Respondent: | Ms A Coulthard |
| Solicitors for the Respondent: | Aitken Legal |
ORDERS
The application filed on 20 September 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 856 of 2016
| CHRISTOPHER HERBERT LAYCOCK |
Applicant
And
| J & C INDEPENDENT CARRIERS PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction and background
By application commenced under the Fair Work Act 2009 (Cth) (Fair Work Act), the applicant (Mr Laycock) claims a loading and unloading allowance entitlement. Mr Laycock claims that he was entitled to this allowance during the course of his employment, as a casual driver with the respondent (J & C), relevantly between the period of 14 September 2010 to 22 or 23 December 2014.
Mr Laycock’s claim is for this period because the limitation period of six years applies prior to the filing of his application[1] and he last undertook driving for J & C in late December of 2014[2].
[1] Mr Laycock’s Form 4 Claim Under the Fair Work Act, dated 14 September 2016.
[2] J & C’s defence at [2(b)]; affidavit of Jeffrey Robert Charles Blackwell, affirmed 23 December 2016 at [31].
It was clarified at the commencement of the trial on 10 August 2017 that a general protections application under the Fair Work Act was not being pursued by Mr Laycock.
Mr Laycock claims the loading and unloading allowance pursuant to the Road Transport (Long Distance Operations) Award 2010 (Award).
J & C complains that the allowance claim has not been particularised with any certainty and the basis of the sum claimed is very difficult to address, given the lack of particularity. It complains that Mr Laycock’s evidence was also lacking in particularity.[3] Mr Laycock claims the sum of $77,391.05 in his application.
[3] Transcript, line 28 on page 19; line 29 on page 19; line 36 on page 19.
Prior to commencing these proceedings, Mr Laycock made a significant demand on J & C, in letters using a pseudonym, “Mal” in which he posed as a person assisting Mr Laycock with his taxation affairs (the Mal letters).[4]
[4] Affidavit of Mr Laycock, sworn 16 November 2016, Annexures CL1 and CL2.
Mr Laycock relies upon his own affidavit.[5] He also called Mr Shane Andrew Hobson as a witness and relied on an affidavit made by Mr Hobson on 13 February 2017. Both were cross-examined.
[5] Affidavit of Mr Laycock, sworn 16 November 2016.
J & C relies on its defence and on the affidavits of:
a)Jeffrey Robert Charles Blackwell, made on 23 December 2016 and on 27 July 2017;
b)Jennifer Ann Blackwell, made on 23 December 2016 and on 9 August 2017;
c)Gavin John Grimes, made on 23 December 2016; and
d)Graham Leslie Smith, made on 23 December 2016.
All of these deponents were cross-examined.
Mr Laycock’s argument centres on the proposition that the unlatching and opening of “curtains”[6] on the truck that was assigned to him and any application of, or removal of, restraining straps on loads on the truck by him, whether undertaken separately or together, was loading and unloading as contemplated by the Award and, as such, gave rise to an entitlement to the allowance.
[6] Load coverings which open and close in a similar way to a home curtain.
In essence, Mr Laycock contends that any part of the process of loading or unloading as such gave rise to an entitlement to the allowance.[7]
[7] Transcript, lines 34 to 39 on page 13; lines 1 to 5 on page 15.
J & C contends that curtain activity, such as by unlatching and movement, is not loading or unloading as contemplated by the Award. Further, it submits that any restraint activity, by strapping through application or removal, was not loading or unloading as contemplated by the Award. To find such activities to be loading or unloading, in its submission, would accord a broad interpretation of the Award not contemplated by the definition of loading and unloading within the Award.
Mr Laycock directed the attention of witnesses to a place described as “Fernlands”, and an apparent operation by him after hours of a forklift at that business. This was addressed by J & C in post hearing submissions. In brief, the submission of J & C is that the Court should not find that an allowance was payable in that circumstance.
It is not clear from Mr Laycock’s evidence what duties he undertook each day of his casual employment with J & C. He does not say with any precision what he did each day relevant to loading and unloading. There is, however, an intimation that he was engaged in loading or unloading every day of his employment between September 2010 to December 2014, by reference to strapping activity.[8]
Consideration
[8] Transcript, lines 5 to 9 on page 13.
The Award
I adopt, with respect, the submissions of J & C concerning the general operation of the Award.
The Award provides for payment for driving on an hourly basis or a per kilometre rate. Mr Laycock was paid a per kilometre rate, and that is not disputed by him in respect of that pleading of J & C in its defence.[9]
[9] Transcript, line 25 on page 18.
Clause 13.6 of the Award provides as follows:
13.6 Loading or unloading
(a)Where an employee is engaged on loading or unloading duties, that employee must be paid for such duties at an hourly rate calculated by dividing the weekly award rate prescribed by clause 13.1 by 40 and multiplying by 1.3 (industry disability allowance), provided that a minimum payment of one hour loading and one hour unloading per trip must be made where loading and/or unloading duties are required.
(b)As an alternative to clause 13.6(a), where there is a written agreement between the employer and the employee a fixed allowance based on the hourly rate in clause 13.6(a) may be paid to cover loading and unloading duties, provided that such written agreement is attached to the time and wages record.
(c)A casual employee attending to the loading or unloading of the vehicles must be paid a loading of 25% in addition to the rates prescribed by this clause.
Further, the Award provides in its Definitions, the following:
3.1 In this award, unless the contrary intention appears:
loading or unloading means being physically engaged in the loading or unloading of the vehicle and includes tarping, installing and removing gates and operation of on board cranes.
The Award is a Modern Award which applied to J & C from 1 January 2010. There have been variations to the Award since 1 January 2010.[10] It is apparent from the definition of loading or unloading that there has been no variation to that definition since 1 January 2010. Since at least 1993 the awards upon which the Award was based have used a similar definition of loading and unloading as provided for in the Award.[11] The only significant addition since the operation of the Transport Workers' (Long Distance Drivers) Award 1993 appears to be the reference to “the operation of on board cranes”.
[10] Note the History Variations function on the Fair Work Commission’s online version of the Road Transport (Long Distance Operations) Award 2010.
[11] Transport Workers' (Long Distance Drivers) Award 1993 – note this was a previous Federal Award.
Further, there is a current modernisation process being undertaken within the Fair Work Commission. However, it appears from the references contained within the various documents filed with the Fair Work Commission, that there is no current intent to amend the definition of loading and unloading.[12] In any event, even if there was contemplation of change, the Court here is dealing with the application of the Award and its allowance provision in a specific period as claimed.
[12] See Fair Work Commission website and modern award review correspondence relevant to Road Transport (Long Distance Operations) Award 2010.
Loading and unloading in practice
J & C submits that the evidence of Mr Blackwell should be accepted as industry practice and understanding of what loading and unloading is.[13] In its submission, Mr Blackwell is a long term operator within the industry, and this supports industry practice and understanding.
[13] Affidavit of Mr Blackwell, affirmed 23 December 2016 at [13] and [14].
I have not been taken to any decision on interpretation of loading and unloading relevant to the definition in the Award. It is clear that the wording is longstanding.
Nevertheless, J & C submits, and I accept, that the Court should have regard to the following decisions to assist in interpreting an Award:
a)Transport Workers’ Union of Australia v Linfox Australia Pty Ltd[14] (Linfox);
b)Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd[15]; and
c)Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd[16].
[14] [2014] FCA 829.
[15] [2014] FWCFB 7447.
[16] [2014] FCAFC 148.
In particular, I have had regard to Linfox, especially the observations under the heading, “Construction of industrial instruments” at [29]–[38] inclusive of that decision.[17]
[17] Ibid. as at 10.
The Federal Court in that case stated at [30], [31], [34], [36], [37] and [38]:[18]
[18] Ibid. as at 10 at [30], [31], [34], [36], [37] and [38].
In dealing with the construction of awards in Kucks v CSR Limited (1996) 66 IR 182 at 184 Madgwick J observed that:
It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.
This passage was quoted with approval by two members of the High Court in Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at 271 (Kirby J), 282-3 (Callinan J). Shortly afterwards these principles were restated by French J in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426 at 440 [57]:
It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities – City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at 378–379 and cases there cited. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned – see eg George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504 (Street J). It may be that this means no more than that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdity or illogicality or apparent inconsistencies. But while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City of Wanneroo v Holmes (at 380):
Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties.
…
Guidance as to the construction of industrial instruments may also be obtained by reference to principles which courts apply to the construction of commercial contracts. Commercial contracts should, as Kirby J held in Pan Foods Company Importers & Distributors Pty Ltd v Australia and New Zealand Banking Group Ltd [2000] HCA 20; (2000) 170 ALR 579 at 584 “be construed practically, so as to give effect to their presumed commercial purposes and so as not to defeat the achievement of such purposes by an excessively narrow and artificially restricted construction.” An interpretation which accords with business common sense will be preferred to one which does not: see Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd [1968] HCA 8; (1968) 118 CLR 429 at 437.
…
A further aid to construction was referred to in submissions. It related to the possibility that the parties had, historically, adopted a common understanding as to the meaning and effect of disputed provisions in the relevant instruments.
Decisions of the Court accept that, in some circumstances, resort may be had to the manner in which a particular industrial instrument or provision in it, has evolved. Differences, however, have emerged as to matters such as whether such an approach is permissible only in order to resolve ambiguity and as to how willing the Court should be to enter this field.
In Short v FW Hercus Pty Ltd [1993] FCA 51; (1993) 40 FCR 511 Burchett J (with whom Drummond J agreed on this point) affirmed that any provision appearing in an industrial instrument had to be read “in its context”. He cited the example of “an expression [that] was first created by a particularly respected draftsman for the purpose of stating the substance of a suggested term of an award, [which] was then adopted in a number of subsequent clauses of awards dealing with the same general subject, and finally was adopted as a clause dealing with that same general subject in the award …”. In construing such a provision, his Honour said, “the circumstances of the origin and use of the clause are plainly relevant to an understanding of what is likely to have been intended by its use.” (at 517). In supporting this proposition his Honour referred to the dictum of Isaacs J in Australian Agricultural Company Limited v Federated Engine-driver’s and Firemen’s Association of Australasia [1913] HCA 41; (1913) 17 CLR 261 at 272 in which Isaacs J cited Lord Halsbury LC as saying: “The time when, and the circumstances under which, an instrument is made, supply the best and surest mode of expounding it.” His Honour concluded (at 518) that:
Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form, only a kind of wilful judicial blindness could lead the court to deny itself the light of that history, and to prefer to peer unaided at some obscurity in the language. ‘Sometimes’, McHugh J said in Saraswati v The Queen [1991] HCA 21; (1991) 172 CLR 1 at 21, the purpose of legislation ‘can be discerned only by reference to the history of the legislation and the state of the law when it was enacted.’ Awards must be in the same position.
It is relevant to note the longevity of this Award provision and that with the introduction of the Modern Award from 1 January 2010, and with no amendments since then, no opportunity has been taken by those within the industry to expand or add to the words contained in the definition of loading and unloading. It is also pertinent to note that the Award definition is not exhaustive, and it may therefore have been considered unnecessary to make any change. It may also have been considered that analogies could be drawn between the words used in the definition, and new methods of securing and protecting a load.
I accept that, as a starting point, the Award provision should be applied by reference to the words within the definition and in the context of the industry in which J & C operates and has operated according to its understanding of loading and unloading. I accept from the evidence of Mr Blackwell that the industry understanding is that loading and unloading reflects physical effort, and that physical extension applies to physical effort, because of the nature of loading and unloading which requires such physical effort. This is also an appropriate approach to considering the reference to gates and tarping[19] as well as on board cranes in the Award definition. The clear contemplation is that loading and unloading through means such as forklifts, requires physical exertion, the use of an on board crane, and physical effort in dealing with gates and tarpaulins (tarps). The submission of J & C is that curtains are not tarps given the clear difference between those items and also the ease with which curtains are dealt with, and strapping is a restraint activity and not a loading and unloading one as contemplated by the Award. Strapping activities are said to be undertaken for safe driving purposes, and in most respects curtains can be viewed in the same way.
[19] The placement or removal of a tarpaulin.
I accept that strapping is a restraint activity to secure a load rather than part of the loading process. On the other hand, unstrapping a load that has been strapped is necessary to gain access to the load for the purpose of unloading, and it would be artificial to draw a distinction where an employee who unloads a truck must first unstrap the load in order to gain access to it. That is not to say, however, that an employee who unstraps a load but otherwise plays no part in the unloading process is participating in unloading.
I also accept that curtains perform a restraint function, but a tarp once secured to a truck tray, likewise performs a restraint function. Both also protect a load from the weather. There is, in my view, much to be said for the proposition that curtains perform a somewhat similar function to tarps, although they are very different in respect of the simplicity and ease of operation of curtains, whereas the placement and removal of tarps requires substantial physical effort.
There has been opportunity for the Award to directly reference strapping and curtains, but it has not done so. That may be for the reason that strapping is to do with restraint; secondly, curtains are a part of restraint in some respects; and thirdly, both are incidental to the opening and closing of the vehicle for loading and unloading purposes so as not to be part of loading and unloading, at least when considered in isolation.
This proposition is supported by the evidence from Mr Blackwell about loading and unloading at his depot and at other depots.[20]
[20] Transcript, line 6 on page 80 to line 23 on page 83.
I accept that the words used in the Award definition of loading and unloading have emphasis on the activity of loading items on and off a truck with the added reference to specific tasks of placing and removing gates and tarping, because of the physical nature of undertaking those tasks. The references to gating and tarping should be looked at with the introductory word of “physical” and then with the end words of “on board crane”. In other words, loading and unloading is a physical and time consuming activity with specific tasks and references.
J & C presses its submission that restraining a load through the use of strapping is a safety and driving issue and unrelated to loading and unloading. Further, if there was an intention to include such activities as curtain movement and restraint activities such as strapping they would have specifically been included within the Award definition. In J & C’s submission the words “curtains” and/or “strapping” cannot be implied into the definition of loading and unloading.
This submission is put on the basis that there is a distinction in the industry, as the evidence of Mr Blackwell indicates, that such activities do not form part of loading and unloading. Certainly there is evidence that strapping attached to the vehicle for movement of the curtains and then strapping the loads or unstrapping the loads take place, but they are said to be safety and restraining issues as opposed to loading and unloading duties as contemplated by the Award definition.
There is support for this approach in several South Australian decisions of the former Industrial Relations Court. See for example Bewley v Linfox Interstate Transport[21] and Burge v Adelaide Interstate Loading Agency Pty Ltd[22]. Further, the same approach was taken by the Chief Industrial Magistrate of NSW in Jones v Post Transport Pty Limited[23].
[21] [1988] SAIRC 62.
[22] [2014] SAIRC 31.
[23] [1999] NSWCIMC 3.
Matters of credit and other relevant factors
J & C submits that where there is a relevant conflict in any evidence between the evidence of J & C’s witnesses and that of Mr Laycock, then the evidence of J & C’s witnesses should be accepted. It is unnecessary to rule on that submission.
The following evidentiary issues bear on credit and also, potentially, findings to be made by the Court relevant to the assessment of what loading and unloading is and whether and when loading and unloading took place, and how it might be calculated:
a)Mr Laycock concedes that Mr Grimes was employed by J & C to operate the forklift at its depot[24];
b)Mr Laycock states that he started work at 6.00am and that Mr Grimes started at 7.00am and that by 6.30am Mr Laycock would be on the forklift[25];
c)Mr Grimes’ evidence is that he started at work between 6.00am and 6.30am during the relevant period[26];
d)I prefer Mr Grimes’ evidence on the operation of the forklift and when it was operated. Clearly, although Mr Laycock seems to assert that he did this on a number of occasions, Mr Grimes was employed to operate the forklift and he was there from the start of the loading and unloading process in the relevant period;[27]
e)Mr Grimes’s evidence was that it was only during the early part of his employment that Mr Laycock would be at work before him;[28]
f)further, I accept the evidence of Mr and Mrs Blackwell[29] about Mr Laycock’s attendance within the house/kitchen area at the J & C depot when the truck was loaded;
g)Mr Laycock concedes that he had discussions with Mrs Blackwell every morning so that she could write in his loads;[30] and
h)Mrs Blackwell gave evidence that Mr Laycock was in the house when loading was occurring.[31] Mr Blackwell confirmed that Mr Laycock was in the house during loading and unloading.[32]
[24] Transcript, lines 38 to 39 of page 18; lines 1 to 3 on page 19.
[25] Transcript, lines 15 to 19 on page 19.
[26] Transcript, lines 19 to 29 on page 67.
[27] Transcript, lines 28 to 36 on page 19.
[28] Transcript, lines 22 to 29 on page 68.
[29] Transcript, lines 1 to 2 on page 48; lines 41 to 42 on page 99.
[30] Transcript, lines 6 to 7 of page 24.
[31] Transcript, lines 38 to 45 of page 42.
[32] Transcript, lines 41 to 49 on page 99.
Mr Laycock stated that curtains are vertical tarps. This was merely a lay opinion. Further, in his evidence, Mr Laycock refers to curtains as curtains rather than tarps.[33]
[33] Transcript, lines 12 to 30 on page 20.
The evidence of Mr Blackwell is that tarping is a time consuming activity where tarps are necessary on trucks.[34]
[34] Transcript, lines 18 to 20 on page 80.
Mr Laycock would not concede that securing/restraining the load was part of the driver’s responsibility, but maintained that it was part of loading and unloading and as such he was entitled to an allowance for it.
In contrast, as examples, the evidence of Mr Smith[35] and Mr Blackwell[36] supports the proposition that restraining a load is a transport regulation.
[35] Transcript, lines 25 to 40 on page 75.
[36] Transcript, lines 36 to 41 on page 102.
Mr Laycock gave evidence that he had a discussion with Mrs Blackwell about Awards and rates of pay on 15 August 2014, and that he brought the loading and unloading allowance concern to her attention that day[37]. However, the evidence of Mr and Mrs Blackwell is that nothing was raised before the Mal letters.[38]
[37] Transcript, lines 26 to 30 on page 28.
[38] Transcript, lines 44 to 47 on page 52; lines 1 to 7 on page 52; lines 4 to 46 on page 29; and line 1 on page 30. See [6] above.
J & C complains that Mr Laycock threatened it by the Mal letters, which in fact included references that were clearly not true (eg, a reference to B double rates and the structure of the letter in terms of the amounts claimed). The threatening nature of the correspondence places the credit of Mr Laycock in issue. Mrs Blackwell gave evidence about keeping the peace by making an ex gratia payment given the interactions with Mr Laycock at that time.
The affidavit evidence of both Mr and Mrs Blackwell in respect of Mr Laycock’s late 2014 driving concerns and accident is a marginal consideration in terms of the credit of Mr Laycock and whether any of his statements can be believed in whole or in part.[39]
[39] Affidavit of Jeffrey Robert Charles Blackwell, affirmed 23 December 2016, [33] to [56]; affidavit of Jennifer Ann Blackwell, affirmed 23 December 2016, [12] to [14].
Of more significance is the exaggeration within the Mal letters, and the evidence of Mr Laycock should be considered in that light.
Although Mr Laycock gave evidence that he was involved with physical loading or unloading, this was mainly in the context that he was always involved with the opening or closing of the load when delivering loads, and that sometimes he was involved with the physical loading and unloading.[40]
[40] Transcript, lines 9 to 11 on page 38.
Mr Laycock thus arguably differentiates the loading and unloading from opening and closing.
Mr Hobson’s evidence
I give Mr Hobson’s evidence no weight, given his admission that he was not present in J & C’s business during the claim period.[41]
[41] Transcript, lines 28 to 29 on page 40.
Curtains
There is, within the evidence, curtain “activity”, but there is a clear difference indicated in both the evidence of Mr Blackwell and Mr Laycock as to “tarping”.[42] On the evidence of Mr Blackwell, clearly tarping is an involved and physically rigorous activity given the length of time that it would take to undertake a tarping activity. The evidence as presented before the Court indicates that dealing with a curtain, be it in a minimal way or where the curtain is fully moved, is an easy, simple and relatively brief task.[43]
[42] Transcript, lines 6 to 20 on page 80; and lines 8 to 14 on page 35.
[43] Transcript, lines 18 to 27 on page 21; lines 5 to 14 on page 43; lines 15 to 18 on page 70; lines 12 to 19 on page 81.
The curtain in question is described in the evidence of Mr Laycock as follows:
a)they run down one side of the truck;
b)there are clips along the bottom edge that look like “sort of stubby seatbelts”;
c)you take the clips off and run the curtains, “just like a curtain in your home”;
d)“when you unclip it, you actually take the clip and clip it up behind the clip so it does not get hooked on the rail when you pull it open”; and
e)it has a tensioner on one end (or in some cases both ends).[44]
[44] Transcript, from line 21 on page 20 to line 7 on page 21.
Mr Blackwell has given evidence about the full or partial drawing back of curtains, depending upon what is being loaded or unloaded.[45]
[45] Transcript, line 21 to 23 on page 81.
The submission of J & C is supported by evidence that the drawing back or drawing forward of the curtain is part of the operation of the vehicle, and in some instances, with driving safety in mind, is a restraint process where a curtain might be classed as a restraint-type curtain.[46]
[46] Transcript, line 34 to 35 on page 44; lines 25 to 27 on page 81.
At its highest, drawing open the curtain is incidental to loading and unloading and not part of it, and is undertaken for the load or the tray of the vehicle to be exposed, so that the load can be taken off or brought onto the tray of the truck.
Secondly, if the curtain performed a restraint function then it would be as a safety function and incidental to the driving of the vehicle, as opposed to being something contemplated as part of the loading and unloading process, as the submissions of J & C in respect of the definition of loading and unloading contend.
Mr Blackwell gave evidence that the curtain might have a function of waterproofing or weatherproofing more than anything else.[47]
[47] Transcript, lines 15 to 16 on page 80.
It is clear that Mr Laycock would have, at some stage during his day of driving, needed to expose the load by the movement of the curtain, partially or fully.
In summary then, in respect of curtains I accept that:
a)at best it was an incidental part of the loading and unloading process, not contemplated by the Award as it is not referenced, despite the opportunity for the Award to reference it;
b)a curtain is not the same as a tarp, although it may be a modern adaptation of a tarp in principle; and
c)curtains perform a function related to driving and/or restraint (if there was a restraint type material as part of the curtain) and opening and closing curtains should not be considered a normal part of loading and unloading;
Also material is the evidence of Mr Grimes (who undertook loading and unloading duties), where he concedes that he needed to undertake some activity in respect of accessing the vehicle by movement of the curtain, but I accept the submission of J & C that his evidence should be interpreted as referring to the incidental part of loading the truck.[48] It also follows that where Mr Grimes was undertaking movement of the curtain, Mr Laycock could not have been undertaking this task.
[48] Transcript, lines 33 to 42 on page 67.
Even if the movement of curtains fell within loading and unloading, then it would be relevant for the Court to consider the time taken in such an activity. All witnesses commented on timing, and it appears to be the case that for a full opening and closing would take approximately five minutes per side. Further, the evidence is that it would appear to be only when fully loading the vehicle that all sides are open, and that when unloading the vehicle may not have a complete opening.
Given the Award interpretation principles referred to, as well as the submissions concerning the Award, which I have accepted, I find that opening and closing curtains is not loading and unloading nor should it be considered loading and unloading as contemplated by the Award, except as something incidental to the loading and unloading activities specified in the Award definition.
Strapping
I accept from the evidence of Mr Grimes, Mr Smith and Mr Blackwell that there would be a need to strap the loads that had been placed on the tray of the truck[49].
[49] Transcript, lines 5 to 17 on page 67; lines 25 to 28 on page 75; lines 36 to 41 on page 102.
I also accept that there was a time where Mr Laycock became quite insistent about strapping the load himself, and I accept the evidence of Mr Laycock and Mr Blackwell that the safe operation of the vehicle required the strapping to be undertaken in a particular way so that there was no movement of the load during the operation of the vehicle.[50]
[50] Transcript, lines 36 to 41 on page 102.
In its submissions, J & C refers again to the definition of “loading and unloading” in the Award. It submits that it can be inferred that strapping is a necessary part of the operation of the vehicle from a safety perspective, in that a load should not move during the operation of a vehicle. However, given that the physical tasks of forklifting pallets onto the truck have already taken place before a load is strapped, and the definition of the Award refers to physical activity associated with loading and unloading, including tarping and gates, and by direct reference to the words “on board crane”, J & C submits that it could not be found that strapping is loading and unloading as contemplated by the Award. I accept that submission with the qualification that, while strapping is not a necessary part of loading a vehicle, unstrapping may be a necessary part of unloading a vehicle where that activity is left to those responsible for the unloading work.
Again, J & C makes the submission that if strapping were to be considered part of loading and unloading then it should have been referenced directly within the definition of loading and unloading. As the physical acts and the physical nature of loading (including through mechanical means and through tarping and gates) is loading and unloading as contemplated by the Award, then if it was considered that strapping was such a physical act that it was part of loading and unloading, it should have necessarily been referenced in the definition. I agree. At best, strapping and unstrapping is incidental to loading and unloading.
In any event I accept from the evidence that at least at J & C’s depot, employees other than Mr Laycock were engaged to undertake all aspects of loading and unloading and having the vehicle operational for leaving its depot. Mr Laycock voluntarily and insistently undertook the task himself when others were employed to do so, and this would not allow a finding of an allowance being payable.[51] It appears to me from Mr Laycock’s evidence that his intervention was motivated by a concern for road safety rather than from any desire to participate in loading activity.
[51] Transcript, lines 5 to 42 on page 67; affidavit of Mr Blackwell, affirmed 23 December 2016 at [11].
Further, in making the vehicle safe for operation, although strapping added a relatively small amount of time to readying the vehicle for its safe operation, it was in my view intended by the parties to be included within the kilometre rate as part of the safe driving of the vehicle and remunerated within the kilometre rate.[52]
[52] Transcript, line 45 on page 81 to line 10 on page 82.
Road transport legislation and references
The Heavy Vehicle National Laws enact mirror legislation nationally and relevantly for Queensland.[53]
[53] Heavy Vehicle National Law Act 2012 (Qld); Heavy Vehicle National Law (Qld).
The legislation is directed at the operation of, relevantly, heavy vehicles and the obligation to secure the load, with penalty consequences. This legislation supports the proposition that once a vehicle has been loaded, the loading/unloading allowance entitlement ends. For the safe operation of the vehicle, strapping must secure the load. This supports the proposition that strapping bears upon the safe operation of the vehicle and not upon loading or unloading.
Physical loading/unloading
J & C submits, and I accept, that as is contemplated and inferred by the definition of loading and unloading, there is a physical engagement with the loading and unloading of a vehicle. Further, when the word “physical” is used, it implies a physicality to the task that contemplates some reward for the employee for having to undertake a task that is not suitably rewarded within the rate of pay the employee receives. That physicality is what occurred in the operation of J & C’s business.
By reference to the day sheets, being Annexure JRCB1 to the affidavit of Mr Blackwell, I find that the loads had some substantial weight to them in the great majority of cases.
Indeed, the evidence from all witnesses appears to be that loads were placed on pallets and then moved onto and arranged on the vehicle by forklift.[54] It is plain that this is what the Award contemplates by such physical effort and/or by mechanical means.
[54] Transcript, lines 24 to 34 on page 66; line 15 on page 74; lines 15 to 21 on page 19; affidavit of Mr Blackwell, affirmed 23 December 2016 at [9].
It appears clear from the evidence that the truck that J & C would have been using in the period of the claim did not have an on board crane.[55]
[55] Transcript, lines 13 to 15 on page 64.
The evidence of Mr Blackwell is also clear as to the process that occurs in terms of delivery to a place and/or loading at a place; that is, a forklift would be used to manoeuvre the loads from the back of the tray and the driver would stand in a particular place.[56] Clearly, loading and unloading is the physical act through mechanical or other means of using physical effort to take a load from a truck or unload an item from a truck.
[56] Transcript, lines 16 to 21 on page 83.
I accept the evidence of Mrs Blackwell, Mr Grimes, Mr Smith, and Mr Blackwell, which outlines the process for the loading and unloading of the truck.[57]
[57] Transcript, line 38 on page 42 to line 13 on page 43; lines 5 to 9 on page 67; lines 10 to 26 on page 74; line 37 on page 82 to line 8 on page 83.
The evidence of Mr Grimes[58] necessitates considering whether on occasion, and within the claim period, Mr Laycock undertook some operation of the forklift at J & C’s depot. If on occasion Mr Laycock did undertake some forklift work at J & C’s depot within the claim period, then some assessment would need to be undertaken as to whether a loading/unloading allowance was payable to him. Unfortunately, the evidence of Mr Laycock on this issue was not particularly helpful.
[58] Transcript, lines 20 to 41 on page 68.
The evidence of Mrs Blackwell[59] and Mr Blackwell[60] is that within the claim period no loading/unloading with the forklift was undertaken by Mr Laycock at J & C’s depot. Mr Laycock’s evidence in relation to alleged operation of a forklift by him is so uncertain as to time and occasion (the lack of relevance to the claim period) that I could not safely make a finding that such forklift work was undertaken and, if undertaken, that it was undertaken during the claim period. Further, Mr Grimes was employed to operate the forklift, and it would logically follow that any operation of the forklift by Mr Laycock was unauthorised (whenever it might have taken place) such that the Court could not determine that a loading and unloading allowance was payable.[61]
[59] Transcript, lines 43 to 44 on page 46.
[60] Transcript, lines 23 to 35 on page 82.
[61] Transcript, lines 26 to 46 on page 66.
Mr Laycock, having made his vehicle safe for operation, would leave the J & C depot and drive to destinations where unloading was necessary and, on occasions, loading would be undertaken. The evidence of Mr Blackwell is clear and cogent, and makes sense in that from a workplace health and safety perspective, where a vehicle arrives without an on board crane and a forklift is necessary to load or unload the vehicle, the business at which the delivery or collection was made would load or unload with their own forklift. The evidence of Mr Blackwell is clear in that respect, and I accept it.[62]
[62] Transcript, line 37 on page 82 to line 2 on page 83; lines 10 to 21 on page 83.
The evidence of Mr Laycock himself in respect of loading and unloading with a forklift is unclear and uncertain. That evidence included:
a)no reference to a definitive undertaking of forklift activities at J & C’s depot in the claim period;
b)the use of words such as “God knows. Endless.”, and “It’s impossible to give an answer to that”;[63]
c)a suggestion that he undertook such physical forklift related activities on a daily basis;
d)no figures presented relevant to such an assessment and calculation of an allowance, if such loading and unloading had been undertaken; and
e)a “red book” created for the period 9 to 23 December 2014 which contains unknown references to loading or unloading pallets, and the evidence in that book is consistent with the evidence that other people were hired to undertake loading and unloading.
[63] Transcript, lines 28 to 36 on page 19.
There is not a sufficient evidentiary basis for the Court to make a finding that Mr Laycock undertook forklift duties of loading and unloading at J & C’s depot or at any place of delivery or collection (other than, possibly, Fernlands).
There is a suggestion in the evidence of Mr Grimes that at an unknown time Mr Laycock may have steadied a load.[64] If undertaken in the claim period, which is unclear, this does not form part of the physicality required of loading and unloading, was voluntary assistance by Mr Laycock and is not loading and unloading as contemplated by the Award. Such steadying of a load on unknown occasions at an unknown time would not form the basis for the payment of an allowance.
[64] Transcript, lines 11 and 12 on page 72.
Mr Grimes did make what might be called statements of “assistance”, such as the steadying of a load of steel, and indicated there might have been assistance from Mr Laycock with items at J & C’s depot on some unknown occasions, but again there is no timeframe provided for any relevant assessment to the claim period, and no evidence upon which the Court could rely or calculate any entitlement to an allowance even if such assistance occurred and was unloading.
There is also evidence of Mrs Blackwell[65] and Mr Blackwell[66] that light parcels otherwise described as “jiffy bags” or the like, may have been removed from the truck and delivered by Mr Laycock. These formed the basis of an ex gratia assessment and payment by J & C to Mr Laycock in respect of the period from July to December 2014.
[65] Transcript, lines 15 to 48 on page 43; affidavit of Mrs Blackwell, affirmed 9 August 2017 at [1].
[66] Transcript, lines 40 to 45 on page 83.
In my opinion, the taking of a jiffy bag or light parcel is a delivery and not loading and unloading and certainly not contemplated as part of the physicality required by the definition of loading and unloading in the Award.
Further, I accept the evidence of Mrs Blackwell, that she undertook the assessment and payment “to keep the peace”[67] due to the difficult nature of the relationship with Mr Laycock, and following the “Mal letters”, to which reference has been made.[68]
[67] Transcript, lines 46 and 47 on page 43; affidavit of Mrs Blackwell, affirmed 9 August 2017 at [1].
[68] See [6] above.
Contact with Fair Work Ombudsman
A further consideration is that J & C took some steps, through Mrs Blackwell, to check that a loading and unloading allowance was not payable.[69] Upon being informed as to what the definition of loading and unloading allowance was, and on the basis that no forklift activity or other physicality had been undertaken by Mr Laycock and that there had been no gates or tarping activities undertaken by him, J & C reasonably concluded that no loading and unloading allowance was payable.
[69] Transcript, line 15 on page 45; lines 18 to 30 on page 53; lines 42 to 43 on page 53.
Although, as I indicated during argument[70], no further question was asked of the Fair Work Ombudsman about curtains and strapping (restraint), the evidence of Mrs Blackwell[71] and Mr Blackwell[72] is clear that they considered that physical effort was required for loading and unloading. No reliable inference can be drawn that the words “curtain” or “strapping” can be interchanged with the words “tarp” or “gate”, and thus logic suggests that it must then come back to the physicality of what is required. It follows, in my view, that the conclusion drawn by Mr and Mrs Blackwell was a reasonable one in the circumstances.
[70] Transcript, lines 1 to 7 on page 58.
[71] Transcript, lines 25 to 40 on page 53.
[72] Transcript, lines 28 to 34 on page 102.
Fernlands
During the hearing Mr Laycock raised that he would regularly, during the course of his entire employment, attend at a place known as Fernlands, and would need to himself unload at that place when making an after hours delivery.[73] No evidence was led by Mr Laycock from any Fernlands representative.
[73] Transcript, lines 1 to 6 and 28 to 34 on page 38.
The evidence of Mrs Blackwell[74] is that she did not ask Mr Laycock to attend Fernlands after hours, and the evidence of Mr Blackwell is to similar effect[75]. Mr Smith, in answer to a question, indicated that he saw Mr Laycock using a forklift a couple of times, and in an earlier period (as he described it) he used a forklift at that place a couple of times. It is relevant that no evidence from Fernlands or the Blackwells has been presented that this occurred after hours or at their instruction and in the claim period.
[74] Transcript, lines 28 to 43 on page 48.
[75] Transcript, lines 42 to 48 on page 91.
Mr Laycock obtained some support from Mr Smith’s evidence. Assuming that this activity took place, it was an irregular practice, and it seems to have been unknown to J & C, including the number of occasions on which it took place. I am unable to conclude that this type of activity was reported to J & C, and thus it could not know that an allowance should be calculated and paid. There is no reliable evidence, in any event, for the calculation of an allowance claim by the Court.
Given the uncertainty of Mr Laycock’s evidence and that there is no evidence from Fernlands or Mr and Mrs Blackwell that this occurred after hours and at direction and in the claim period, I find that no allowance is payable.
Gates
J & C’s submission is that gates as contemplated by the loading and unloading allowance definition were not in use on the truck driven by Mr Laycock during the claim period. There were gates stored on the truck, as Mr Laycock conceded[76], and usually gates were “up [at] the headboard”, out of the way so that he could get his job done. I accept that gates were stored on the truck but not, as a general rule, used in any way as contemplated by the Award.
[76] Transcript, lines 43 to 44 on page 36.
I accept the evidence of Mr Blackwell that gates were used very rarely, only on Brisbane trips for tyres, and otherwise were not in use on the truck, and further that this type of load did not occur in the claim period.[77]
[77] Transcript, lines 5 to 6 on page 81.
The only evidence provided that confirmed the use of gates was the evidence given by witnesses (in particular, Mr Grimes) that related to the transport of “scrap tyres”. Whilst Mrs Blackwell conceded that Mr Laycock did drive a truck with tyres on it during his employment, it was also Mrs Blackwell’s evidence that during the period from September 2010 to December 2014, he was not “doing the tyres” and that J & C had other employees loading and unloading tyres during that period.[78] Mr Blackwell confirmed Mrs Blackwell’s evidence, noting that Mr Laycock did use gates to restrain tyres but that this occurred during a period prior to September 2010.[79] I accept that on this issue, Mr and Mrs Blackwell’s evidence about the period in which gates were used for “scrap tyres” is preferable to the evidence of Mr Grimes, noting that Mr Grimes commenced employment with J & C in 2008, and so it is probable that Mr Grimes’ recollection of the use of gates related to a period prior to September 2010 consistently with Mr and Mrs Blackwell’s recollection.
[78] Transcript, lines 18 to 20 on page 58; lines 9 to 11 on page 60.
[79] Transcript, lines 29 to 33 on page 80.
Conclusion
I find that Mr Laycock has failed to prove his case that a loading and unloading allowance was payable to him in the claim period, and that no amount is payable by J & C to him.
I will order that the application be dismissed.
I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 12 February 2018
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