Transport Workers' Union of Australia v Linfox Australia Pty Ltd

[2020] FWC 489

[2020] FWC 489

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Transport Workers' Union of Australia
v
Linfox Australia Pty Ltd
(C2019/2029)

DEPUTY PRESIDENT BEAUMONT PERTH, 31 JANUARY 2020

Dispute under the Linfox and Transport Workers Union Road Transport and Distribution Centres Agreement 2018 in relation to payment for non-driving duties – cents per kilometre rate and loaded hourly rates.

[1] This decision concerns an application made by the Transport Workers’ Union of Australia (the TWU) under s 739 of the Fair Work Act 2009 (the Act) for the Commission to deal with a dispute in accordance with the dispute settlement procedure in cl 33 of the Linfox and Transport Workers Union Road Transport and Distribution Centres Agreement (2018 Agreement).

[2] The dispute centres on whether Linfox Australia Pty Limited (Linfox) is required to pay North West Linehaul Drivers (Drivers) the loaded hourly rate (LHR) for tasks that the parties have, for the purpose of these proceedings, defined as ‘Activities’ and ‘Disputed Tasks’. The Drivers are based in Western Australia. Their work involves long distance truck driving, under contracts that Linfox purportedly has with BHP Billiton, Fortescue Metals Group Ltd and Newcrest Mining Ltd (collectively the NW Mining Business).

[3] The TWU submits that for many years it has been the practice to pay Drivers:

a) a cents per kilometre rate for the time that they spend driving; and

b) a LHR for all other work time, including: pre-start, time taken when waiting for paperwork, delays in commencing a trip due to truck or trailer issues, refuelling the truck during the trip and work at a customer’s site.

[4] Generally, the Drivers have two types of trips. One, colloquially referred to as a ‘turn around’, involves the Drivers hauling the loaded trailers to a location, uncoupling the trailers and then coupling the trailers that they are required to haul back to Perth. However, the second type of trip requires the Drivers to haul the loaded trailers to the customer’s site and while they are there, perform work such as pulling back curtains, unstrapping/unchaining the load, assisting with the unloading, restraining the load on trailers that are going back to Perth, and putting together the combination to haul back.

[5] Receiving the LHR when performing work at a customer’s site is particularly important for the Drivers. This is because they consider that the cents per kilometre rate (Driving Rate) only compensates them for driving and not for other duties, such as performing work on a customer’s site, or preparing the truck, trailers and load for the trip.

[6] The dispute surfaced when Linfox sent a letter of 5 February 2019 to the TWU, advising that the company would cease to pay the Drivers the LHR for non-driving duties. Further, Linfox informed the TWU, that in its view, the loading and unloading work (which attracts the LHR under the 2018 Agreement) only comprised of removing or placing product on a trailer either by mechanical or physical means.

[7] The application was listed for several conciliations pursuant to the steps in the dispute resolution procedure. The matter remained unresolved and the TWU sought to have its application proceed to arbitration. It was common ground, and I agree, that the Commission was authorised by the terms of the 2018 Agreement to arbitrate the dispute.

[8] The parties initially agreed that the dispute could be resolved by the Commission determining the following questions:

1. Are North West Linehaul drivers who are covered by the 2018 Agreement and who are paid a cents per kilometre rate for long distance operations also entitled to be paid the loaded hourly rate for the following non-driving activities:

a) conducting pre-start checks;

b) waiting time for paperwork and trailers to be loaded and unloaded;

c) attendance at toolbox talks;

d) refuelling;

e) completing paperwork (pre, during and post trip);

f) coupling and uncoupling trailers in the yard;

g) cleaning truck cabins;

h) swapping trailers;

i) checking the load;

j) fixing the load in transit;

k) greasing dollies;

l) oversize loads (together, Activities).

2. Are North West Linehaul drivers who are covered by the 2018 Agreement and who are paid a cents per kilometre rate for long distance operations also entitled to be paid the loaded hourly rate for the following non-driving activities:

a) restraining and un-restraining the load (by way of straps or chains);

b) securing and/or pulling back curtains and the associated gates;

c) putting on and removing gates and dunnage;

d) stowing and un-stowing ramps;

e) removal of debris from the trailer;

f) uncoupling trailers and/or dollies so the loads can be taken off the trailers; and

g) moving trailers to different parts of a customer’s site for the purposes of unloading, (together the Disputed Tasks).

For the purposes of these questions:

North West Linehaul drivers means drivers who are based at Hazelmere in Western Australia;

2018 Agreement means the Linfox and Transport Workers Union Road Transport and Distribution Centres Agreement 2018 approved by the Fair Work Commission in a decision of Deputy President Kovacic on 31 July 2018; 1

cents per kilometre rate means the rate of pay for drivers by reference to distance travelled rather than the time spent driving;

long distance operations means any interstate operation (as defined), 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;

loaded hourly rate means the applicable hourly rate that applies for prescribed non-driving activities under either the:

• the Linfox Western Australia (BHP Billiton) Agreement 2008 (Linfox BHP Agreement) parts of which are incorporated into the 2018 Agreement, and which applies to the North West Linehaul drivers; or

• the Road Transport (Long Distance Operations) Award 2010 2 (Long Distance Award) most of which is incorporated in the 2018 Agreement at clause 91.2(k).

[9] However, before the matter proceeded to hearing, the TWU conceded that some of the Activities did not attract the LHR. Therefore, question one was amended to read:

1. Are North West Linehaul drivers who are covered by the 2018 Agreement and who are paid a cents per kilometre rate for long distance operations also entitled to be paid the loaded hourly rate for the following non-driving activities:

a) waiting time for paperwork and trailers to be loaded and unloaded;

b) attendance at toolbox talks;

c) coupling and uncoupling trailers in the yard; and

d) oversize loads (together, Activities).

[10] To recap, the parties are in dispute about whether the newly defined Activities and the Disputed Tasks (both individually and collectively) attract the payment of the LHR.

BACKGROUND

[11] By way of background Linfox provided the information set out below.

a) Linfox employs 53 Drivers who perform long distance operations on the NW Mining Business.

b) The Drivers (or their predecessors) have been working in the NW Mining Business since approximately 2008.

c) In 2008, that is, around the time of the inception of the NW Mining Business, Linfox negotiated the Linfox BHP Agreement.

d) The Linfox BHP Agreement was the first enterprise agreement to cover the Drivers.

e) The Linfox BHP Agreement incorporated the Transport Workers (Long Distance Drivers) Award 2000 3 (Old Federal Award), however, the Agreement’s terms prevailed to the extent of any inconsistency over those in the Award.

Enterprise agreements – incorporated terms

[12] The Linfox Road Transport and Distribution Centres National Agreement 2011, 4 the Linfox and Transport Workers’ Union Road Transport and Distribution Centres Agreement 20145 and the 2018 Agreement incorporated, among other things, the pay arrangements from the Linfox BHP Agreement.

[13] Clause 4.1 of the 2018 Agreement sets out the ‘parts’ of the Agreement, one of which is ‘Part L, Incorporated Terms’. Clause 4.4(a) outlines the operation of the terms of the 2018 Agreement. With respect to ‘Incorporated Terms’, cl 4.4(a) provides:

Incorporated Terms from enterprise agreements, memoranda of understanding, common law agreements and State awards prevail, to the extent of any inconsistency, over Common Terms and Incorporated Terms from the Modern Awards.

[14] Regarding ‘Incorporated Terms’ and with respect to Western Australia, Division 4 of Part L (the Division) states that the Division applies to employees based at a site in Western Australia as provided by Part L. 6 Clause 91.2 of Part L, states:

Subject to clauses 91.3 and 91.4, the following terms are incorporated into this Agreement:

…

(c) for Employees covered by the Linfox Western Australia (BHP Billiton) Agreement 2008 (BHP Billiton Agreement) and Employees at the Fortescue Metals Group Site at 135 Pilbara Street, Welshpool, WA, who perform work which is within the classifications in the BHP Billiton Agreement: Appendix 1 – Classification structure, Appendix 2 – Rates of pay, Appendix 3 – Payment of work on public holidays and clause 4.1 of the Linfox Western Australia (BHP Billiton) Agreement 2008…

(k) for all Employees based at a Site in Western Australia: the terms of the Modern Awards (including allowances), except for the following provisions (which relate to certain allowances and expenses) which are not incorporated into this Agreement for all Employees:

(i) subclause 16.4(a) of the Road Transport Award; and

(ii) subclause 14.2(a) of the Road Transport Long Distance Award.

[15] Clause 91.4 of the 2018 Agreement outlines the priority given to the terms of the 2018 Agreement in relation to the relevant modern awards. The clause states:

The Incorporated Terms of the enterprise agreements incorporated in this Part L, Division 4 are to be read in conjunction with the Incorporated Terms of the Modern Awards, but where there is any inconsistency, the Incorporated Terms of the enterprise agreements prevail over the Incorporated Terms of the Modern Awards.

[16] While Appendix 1 – Classification structure, Appendix 2 – Rates of pay, Appendix 3 – Payment of work on public holidays and clause 4.1 of the Linfox BHP Agreement are incorporated terms in the 2018 Agreement, there is no express reference to the incorporation of the definitions section of the Linfox BHP Agreement, particularly the clauses that define the ‘cents per kilometre rate’ (cl 1.7.5) and the ‘loaded hourly rate’ (cl 1.7.14), or the clause that sets out the ‘industry disability allowance’.

[17] For employees performing long distance operations, the Linfox BHP Agreement provides remuneration by a ‘cents per kilometre rate’ for all driving work. In addition, it sets out certain prescribed tasks for which the LHR applies.

[18] Clause 4.1 of the Linfox BHP Agreement states the rate of pay applicable from the commencement of the agreement and is detailed in Appendix 2.

[19] At Appendix 2 of the Linfox BHP Agreement the rates of pay are as follows:

10.2.1 Long distance drivers’ rates of pay from commencement of the agreement:

Classification	Cents per kilometre rate (cpk)	Loaded hourly rate ($)	Loaded weekly rate ($)	Ordinary rate ($)	Weekly rate ($)
(Weekly rate/2500hrs *1.3) * 100	Weekly rate + 30%	Weekly rate + 77.5%	Weekly rate/38
Casual - F/T cpk +15%
Grade 6	35.9840	23.6737	1228.30	18.2105	692.00
	41.3816	26.0411
Grade 7	36.6080	24.0842	1249.60	18.5263	704.00
	42.0992	26.4926
Grade 8	38.0120	25.0079	1297.53	19.2368	731.00
	43.7138	27.5087
Grade 9	40.0400	26.3421	1366.75	20.2632	770.00
	46.0460	28.9763
Grade 10	41.0800	27.0263	1402.25	20.7895	790.00
	47.2420	29.7289

NOTES:

1. The loaded hourly rate is paid to long distance drivers for loading and unloading of vehicles, delays due to breakdowns and impassable highways, washing of vehicles, general yard duties, dirt running, annual leave, long service leave, public holidays and rostered days off.

2. All grade 8 employees shall be paid the grade 9 loaded hourly rate for all time worked. This shall not apply to periods of paid leave.

[20] Under the Linfox BHP Agreement, cl 1.7.5 defines the ‘cents per kilometre rate (cpk)’ as:

the rate of payment for long distance drivers based on the distance travelled. This rate is based on the weekly rate divided by 2,500 hours multiplied by the industry disability allowance (13) The total of this is then multiplied by 100.

[21] At cl 1.7.14, the ‘loaded hourly rate’ means:

the weekly rate plus the industry disability allowance of 30%. This rate is paid for loading and unloading of vehicles, delays, breakdowns and impassable highways, long service leave and public holidays.

[22] Clause 4.5.2, entitled ‘[I]ndustry disability allowance’ sets out:

The rates per kilometre prescribe by clause 4.1 hereof are inclusive of an industry disability allowance of 1.3 times the ordinary rate, which shall compensate for the following:

• Shift work and related conditions.

• Overtime.

• Necessity to work during weekends.

• Lack of normal depot facilities, e.g. lunch room, wash rooms, toilets, tea making facilities.

• Necessity to eat at roadside fast food outlets.

• Absence of normal resting facilities and normal bed at night.

• Additional hazards arising from driving long distances at night an alone.

• Handling dirty material.

• Handling money.

• Extra responsibility associated with arranging loads, purchasing spare parts, tyres, pre and post trip vehicle safety checks, refuelling of vehicles, cabin cleaning etc.

• Irregular starting and finishing times.

• Work in rain.

[23] A definition of ‘long distance operation’ is also provided by the Linfox BHP Agreement, at cl 1.7.15; it states:

means any interstate operation (as defined), 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. For the purpose of this definition, the employer shall stipulate the principal point of commencement and the principal point of destination.

The Long Distance Award

[24] The Long Distance Award, at cl 13.3(a), states that an employee engaged in a ‘long distance operation’ must be paid for all driving time pursuant to either the cents per kilometre method set out in cl 13.4 or the hourly rate method set out in cl 13.5.

[25] Clause 13(b) of the Long Distance Award goes on to set out the requirement for an employer to nominate the rates of pay. At clause 13.3(d), there are the additional allowances that a long distance driver must be paid. These include: (a) the rate or allowance for any loading or unloading duties calculated in accordance with cl 13.6; (b) the travelling allowance as prescribed by cl 14.2(c); and (c) any other allowances required to be paid by the Long Distance Award.

[26] The definition of ‘long distance operation’ under the Long Distance Award is similar to that under the 2018 Agreement, it reads:

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 of 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.

[27] At cl 3.1 of the Long Distance Award ‘loading or unloading’ is defined to mean being physically engaged in the loading or unloading of the vehicle and includes tarping, installing and removing gates, and operation of on board cranes.

[28] Employees under the Long Distance Award receive a specified hourly rate of pay when engaged in loading or unloading work (cl 13.6). That rate is computed by reference to the formula set out in cl 13.6.

[29] An industry disability allowance is also payable but is incorporated in the ‘rates per kilometre’. Clause 14.1(a) of the Long Distance Award states:

(a) Industry disability allowance

The rates per kilometre are inclusive of an industry disability allowance of 1.3 times the ordinary rate, which compensates for the following:

i. shiftwork and related conditions;
ii. necessity to work during weekends;
iii. lack of normal depot facilities, e.g. lunch room, wash rooms, toilets, team making facilities;
iv. necessity to eat at roadside fast food outlets;
v. absence of normal resting facilities and normal bed at night;
vi. additional hazards arising from driving long distances at night and alone;
vii. handling dirty material;
viii. handling money;
ix. extra responsibility associated with arranging loads, purchasing spare parts, tyres, etc;
x. irregular starting and finishing times; and
xi. work in rain.

(b) Overtime allowance

The rates per kilometre are inclusive of an overtime allowance of 1.2 times the ordinary rate, which takes into account an overtime factor of two hours in 10 at double time.

TWU’S SUBMISSIONS

[30] According to the TWU, the Drivers’ terms and conditions of employment are derived from three instruments. The three instruments are the 2018 Agreement, the Linfox BHP Agreement and the Long Distance Award. However, the TWU’s view is that cl 91.2(k) of the 2018 Agreement operates so as to incorporate most of the content of the Long Distance Award. As a result of incorporation, most of the Drivers’ terms and condition of employment are derived from the Long Distance Award.

[31] The TWU expressed that the abovementioned industrial instruments did not expressly deal with payment for non-driving duties. However, it considered that the driving rate only compensated Drivers for driving and not the other duties. Therefore, if Drivers were required to perform other duties, such as preparing the truck or trailers for the trip, or performing work on a customer’s site, then the Drivers must be paid an additional amount for that work.

[32] The TWU submitted that the Long Distance Award does not provide payment to a Driver for preparing a truck or the trailers. This is because, the principal role of a Driver is to drive a truck and transport freight. If preparation of the truck or trailer were part of a Driver’s duties, the Award would have made provision for this, argued the TWU.

[33] While the Long Distance Award provides that a driver engaged in a long distance operation must be paid for all driving time pursuant to either a cents per kilometre method or an hourly rate, there was in addition the provision of payment for loading and unloading work (under cl 13.6) and other allowances. However, the Long Distance Award was silent on the matter of ‘general’ non-driving duties. The TWU raised the point that it was a fundamental part of employment regulation that an employee must be paid for all work she or he performs – in this case ‘general’ non-driving duties.

[34] A Driver completes the principal task of delivering freight to the customer once she or he has arrived at the destination, whether a customer’s site, transport yard, or road train assembly area. Therefore, if the Driver is required to do additional work after having delivered the freight, the Driver must be remunerated, submitted the TWU. In support of its view, the TWU referred to the definition of ‘long distance work’ in cl 3 of the Long Distance Award, which relevantly states:

Long distance operations means any… return journey where the distance travelled exceeds 500 kilometres and the operation involves a vehicle moving… materials… from a principal point of commencement to a principal point of destination.

[35] The TWU advanced that the words ‘from a principal point of commencement to a principal point of destination’ in the definition of ‘long distance operation’, made it clear that a long distance operation is concerned with the transport of materials from one point to another point. Therefore, the long distance operation is completed once the materials is delivered to the destination. On this basis, stated the TWU, any work performed by the Driver whether at a customer’s site or elsewhere, after having made the delivery, is not work that is performed as a part of a ‘long distance operation’.

[36] By operation of cl 4.2 of the Long Distance Award, where work did not fall within the definition of a ‘long distance operation’, it was remunerated in accordance with the Road Transport and Distribution Award 2010, said the TWU. This in turn meant that the relevant hour rate was the LHR.

[37] Regarding loading and unloading work, it was the TWU’s primary position that such work did not form part of a ‘long distance operation’. But, if the TWU was wrong, then its view was that ‘loading and unloading’ work had a wider meaning than just placing freight onto the trailer and taking it off the trailer. Loading work, said the TWU, included ‘getting the load onto the truck or trailer, putting on the straps or chains necessary to secure a load and also any tarpaulins, as well as closing and securing curtains’. Unloading work similarly involved pulling back curtains, unstrapping or unchaining the load, and removing tarpaulins.

[38] The TWU referred to the definition of ‘loading or unloading’ in the Long Distance Award, observing that the aforementioned activities fell within the definition. Examining the definition of ‘loading or unloading’ in greater detail, the TWU submitted that the use of the word ‘includes’ in the definition made it clear that the list of tasks referred to were not exhaustive and not limited. It followed, for example, that the tasks of putting on straps or chains took considerable physical effort and therefore fell within the scope of ‘loading or unloading’ work.

[39] It appeared however that the TWU was aware of the Federal Circuit Court’s potentially discordant view. Referring to the case of Laycock v J&C Independent Carriers Pty Ltd 7 (Laycock), the TWU submitted that the decision should not be followed on the basis that the claimant was self-represented, and the Court had not the benefit of detailed and considered argument on what activities amounted to ‘loading or unloading’ work, for the purpose of the Long Distance Award.

[40] In addition to the above contentions, the TWU initially advanced a ‘custom and practice’ argument in light of cl 5.1 of the 2018 Agreement. Relying on the evidence led by its witnesses, the TWU stated that when their witnesses commenced as Drivers they were advised they would be paid the cents per kilometre rate for the times spent driving and that they would be paid the LHR for all other work time, including the pre-start, waiting time, refuelling, and any work undertaken at the customer’s site, etc. This practice was well known, stated the TWU, and had been in place for a substantial period, to the point that Linfox could not now proceed as if that custom and practice did not exist.

[41] In support of its contention, the TWU highlighted the decision in TWU v Linfox Australia Pty Ltd 8where it said that the custom and practice regarding payment to the Drivers for non-driving duties was similar to the payment of the TWU delegate’s allowance that was subject to the decision. However, when the matter proceeded to hearing, the TWU confirmed that it was not longer advancing this argument.

LINFOX’S SUBMISSIONS

[42] Linfox’s contention was that by virtue of the incorporation of the Linfox BHP Agreement into the 2018 Agreement, it was required to pay the Drivers the cents per kilometre rate for all driving and the LHR only for the tasks expressly referenced in the Linfox BHP Agreement (collectively, the Payment Obligations).

[43] Further, given the incorporation of the Linfox BHP Agreement, it was Linfox’s view that the relevant definitions in that Agreement applied. However, according to Linfox, there were such similarities in the definitions between the Linfox BHP Agreement and the Long Distance Award, that it considered little turned on whether the definitions were derived from either instrument.

[44] Linfox’s observation was that long distance driving operations have traditionally allowed for remuneration of Drivers by payment of: (a) a cents per kilometre rate; and (b) an hourly rate for loading and unloading (and which can also apply for periods of leave etc). This had been the case since at least 1993 and had remained the case under the Long Distance Award – which, relevantly, is incorporated into the 2018 Agreement. Referring to what had been said in the Four Yearly Review of Modern Awards, 9 Linfox submitted that the remuneration structure in the industry was unique and it derived from the characteristics of the particular industry.

[45] Linfox submitted that, with the exception of some allowances, the cents per kilometre rate and the hourly rate for loading and unloading in the Long Distance Award (and its predecessors) compensated an employee for all aspects of their work on a long distance operation.

The Activities

[46] Linfox had interpreted the TWU’s position as being one where the TWU appeared to suggest that the Activities must be paid because they fell outside the scope of the ‘long distance operation’. Linfox deduced that such argument appeared to be premised on the following propositions, which it considered were wrong:

(a) that the cents per kilometre rate only compensates employees for driving and nothing else; and/or
(b) that a ‘long distance operation’ only involves transporting freight from one location to another and therefore does not include:

i. anything other than driving; and/or
ii. activities once the Driver arrives at the destination where the freight is being delivered.

[47] Linfox submitted that there was no doubt that the cents per kilometre rate compensated for more than just driving. This was made clear from cl 4.5.2 of the Linfox BHP Agreement. Linfox directed attention to the bullet point ‘[E]xtra responsibility associated with arranging loads, purchasing spare parts, tyres, pre and post-trip vehicle safety checks, refuelling of vehicles, cabin cleaning, etc.’ noting that if the cents per kilometre rate did not compensate Drivers for activities other than driving, the provisions that Linfox had emphasised in cl 4.5.2 would be otiose.

[48] Turning to authorities on the subject matter, Linfox observed that there had been a number of decisions where long distance drivers who were paid on the cents per kilometre rate had claimed an entitlement to payment of activities other than loading or unloading. Linfox gave the example of the South Australian Industrial Relations Court’s decision in Phillips & Ors v Linfox Australia Pty Ltd 10 (Phillips), where it was acknowledged that under the Old Federal Award duties such as ‘refuelling, safety checks, meal breaks and waiting time’ did not attract payment.

[49] It was Linfox’s opinion that the TWU’s interpretation, that the cents per kilometre rate did not compensate for duties other driving, would lead to absurd results. Referring to the ‘Activities’ as they were prior to the concessions made by the TWU, Linfox made the point that the TWU could not seriously argue that Linfox could not require a Driver to refuel her or his vehicle during a long distance operation without payment of an additional amount. The question clearly arose – what additional amount? Linfox stated that the 2018 Agreement did not provide for an additional amount. Further, the corollary to this could not be that Linfox could not have those activities performed at all, or that it must require those activities to be carried out by other personnel.

The Scope of the Long Distance Operation

[50] Linfox submitted that it was wrong for the TWU to assert that a ‘long distance operation’ began and ended with the driving component. If this was the case, there would be no scope in the 2018 Agreement for loading and unloading. The scope of a ‘long distance operation’ could involve more than just driving. Further, it was wrong for the TWU to suggest that a ‘long distance operation’ only invoked moving freight to and from one location. Linfox submitted that it could include more than this, including dropping freight to multiple locations on a journey. In this respect Linfox, again referred to the decision of the Full Bench in the Four Yearly Review of the Long Distance Award where the TWU had unsuccessfully sought the inclusion of a ‘Pick-up and Drop-off allowance’ in the Long Distance Award.

[51] Linfox submitted that the decision in the Four Yearly Review of the Long Distance Award impugned the TWU’s argument about the scope of ‘long distance operation’. Further, said Linfox, it confirmed that its approach regarding payment of employees for the actual driving component of deliveries undertaken on client sites, comfortably fell within the scope of a ‘long distance operation’ in the Long Distance Award (note: the same definition applied in the 2018 Agreement).

The Disputed Tasks

[52] Linfox accepted that there was a requirement to pay employees the LHR when the employees were engaged in ‘loading and unloading’, as that term was understood pursuant to cl 5.6.3 of the Linfox BHP Agreement. Linfox observed that the definition of ‘loading and unloading’ was the same as that in the Long Distance Award.

[53] The Disputed Tasks however did not constitute ‘loading and unloading’. In this respect Linfox drew upon the evidence of Mr Taylor, who had informed the Commission that Linfox personnel are employed specifically as loaders, and/or its customers undertake all loading and unloading tasks.

[54] Regarding the list of Disputed Tasks, it was Linfox’s view that the only tasks that had a connection to ‘loading and unloading’ were: (a) checking loads prior to starting trips; (b) restraining loads (if required) for the purposes of ensuring the safe transportation of the load; and (c) removing restraints (on some but not all runs) to allow access by loaders for unloading. As it was, these tasks did not constitute loading and unloading, but were part of safe driving procedure and/or were performed to allow access by loaders. In support of this proposition, Linfox referred to a series of authorities, 11 and advanced that the authorities, properly understood against the description of what the Drivers do, did not constitute ‘loading and unloading’.

CONSIDERATION

[55] The principles that govern the interpretation of enterprise agreements are well-established. In WorkPac Pty Ltd v Skene, 12 (Workpac) the Full Federal Court elucidated the following principles:

The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes (1989) 30 IR 362 (Holmes) at 378 (French J). The interpretation “turns on the language of the particular agreement, understood in the light of its industrial context and purpose”: Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 (Amcor) at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378-379, citing George A Bond & Company Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Ltd (1996) 66 IR 182 at 184 (Madgwick J); Shop, Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J). 13

[56] In that same decision, the Full Federal Court voiced that where a term is undefined, unless there is a contrary indication, it ought to be presumed that the draftsperson intended that the term have its ordinary meaning. 14 And so, despite the broad purposive approach to be adopted when interpreting industrial agreements, that cannon of construction regarding the ‘ordinary meaning’ remains applicable as a starting point.15

[57] The Full Bench of the Commission in AMWU v Berri Pty Ltd 16(Berri), and the earlier decision in AMIEU v Golden Cockerel Pty Ltd (Golden Cockerel),17embraced such principles. Berri affirmed that the interpretation of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. While Berri set out a fulsome exposition regarding the approach to interpretation of an enterprise agreement, the relevant passage is sufficiently well known for it not to be repeated in full here.

[58] In short, where there is a dispute over the interpretation of an enterprise agreement the resolution will turn on the language of the agreement, having regard to its context and purpose. 18 Context might appear from the text of the agreement as a whole, the disputed provision’s place and arrangement in the agreement, and the legislative framework under which the agreement was made.19 However, the task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome.20

The Activities

[59] Clause 4.1 of the Linfox BHP Agreement is a facilitative provision that provides that the rates of pay applicable are set out in the payment schedule in ‘Appendix 2 - Rates of Pay’ (Appendix 2).  It is not disputed that the terms of Appendix 2 from the Linfox BHP Agreement are incorporated into the 2018 Agreement.

[60] The 2018 Agreement places precedence on the incorporated terms of enterprise agreements where there is any inconsistency with an incorporated term of a modern award, albeit Part L, Division 4, is to be read in conjunction with the incorporated term of a modern award.

[61] Some of the incorporated Appendix 2 includes terms that are defined in other sections of the Linfox BHP Agreement, namely cl 1.7. However, the 2018 Agreement does not expressly incorporate these definitions.

[62] Appendix 2 refers to the rates of pay for ‘long distance drivers’. The term ‘long distance drivers’ is not defined in the Linfox BHP Agreement, but meaning is attributed to the term ‘long distance operation’. Relevantly, aside from referring to interstate operations, the definition also refers to journeys where the distance travelled exceeds 500 kilometres and the operation involves a vehicle moving materials from a principal point of commencement to a principal point of destination.

[63] When interpreting enterprise agreements, the common intention of the parties is sought to be identified objectively by reference to that which a reasonable person would understand by the language the parties have used to express their agreement. 21 It is difficult to conceive that when the parties incorporated Appendix 2 of the Linfox BHP Agreement into the 2018 Agreement, they did so in a manner that divorced the meanings attributed to the terms used within the clause, as defined by the parties in cl 1.7, or elsewhere in the Linfox BHP Agreement.

[64] Clause 10.2.1 in Appendix 2 provides for a ‘cents per kilometre rate’. That term is defined at cl 1.7.5 of the Linfox BHP Agreement. Proceeding on the basis that the ‘cents per kilometre rate’ does derive its meaning from cl 1.7.5, the rate includes the ‘industry disability allowance’. This is confirmed by cl 4.5.2 which states that the ‘rates per kilometre prescribed by clause 4.1 hereof are inclusive of an industry disability allowance…’. One can safely presume that the authors at this point were referring to the ‘cents per kilometre rate’ notwithstanding their reference to ‘rates per kilometre’. So much can be gathered from reading cl 4.1 and cl 10.2.1.

[65] The ‘industry disability allowance’ set out at cl 4.52 is stated to compensate for various work conditions and responsibilities. Included in the responsibilities are the ‘extra responsibilities associated with arranging loads’, and ‘pre and post-trip vehicle safety checks’.

[66] The ‘cents per kilometre rate’ provides the rate of payment for long distance drivers based on the distance travelled. However, given that the rate comprises of, in part, the ‘industry disability allowance’, I do not consider it correct to conclude that this particular rate only compensates for driving from one principal point of commencement to a principal point of destination (see: definition of ‘long distance operation’ in both the 2008 Agreement and the Long Distance Award). When one considers the plain meaning of cl 4.52, and that the cent per kilometre rate incorporates the industry disability allowance under that clause, in my view, it does not follow that any work performed by a Driver, whether at a customer’s site or elsewhere, after having made the delivery, is not necessarily work that is performed as part of a ‘long distance operation’ under the 2018 Agreement. This is because the ‘cents per kilometre rate’ is provided to compensate not only for driving, but also for those activities provided for by the provision of an ‘industry disability allowance’.

[67] The Activities are set out at paragraph 9 of this decision. The phrase ‘extra responsibilities associated with arranging loads’ in cl 4.5.2 of the Linfox BHP Agreement, appears of sufficiently broad import to encompass waiting for paperwork and for trailers to be loaded and unloaded, in addition to coupling and uncoupling trailers in the yard, and oversize loads. While commencing with ‘[E]xtra responsibility…’ the bullet point concludes with the term ‘etc.’. ‘Etc.’ is the abbreviation of et cetera, which means ‘and others; and so forth; and so on’ (used to indicate that more of the same sort or class might have been mentioned, but for shortness are omitted). Included after ‘[E]xtra responsibility’ are tasks such as pre and post-trip safety checks and cabin cleaning. It would be reasonable to apprehend that these tasks may occur at the principal point of commencement or the principal point of destination and yet would not arguably involve a vehicle moving – well one would hope not. Therefore, I also observe that I am unable to agree with the TWU’s contention that the words ‘from a principal point of commencement to a principal point of destination’ makes it clear that a long distance operation is concerned with the transport of materials from one point to another point only.

[68] On this basis, I would be content to conclude that the ‘cents per kilometre rate’ referred to in Appendix 2 of the Linfox BHP Agreement, compensates the Drivers for the aforementioned extra responsibilities, to clarify the ‘Activities’. Further, the requirement to attend toolbox talks, would in my view, sit squarely within the remit of ‘shift work and related conditions’, or an ‘extra responsibility associated with… pre and post trip vehicle safety checks …’

[69] For the sake of fulsomeness, before proceeding to consider the terms of the Long Distance Award, it is important to consider further the issue that was raised at hearing concerning delays whilst on a client’s site. I observe that one of the Activities was ‘waiting time for paperwork and trailers to be loaded or unloaded’. Evidence was given by Mr Deanspread, Driver, that on the Telfer Mine he had spent some eight hours on site. 22 When elaborating on the activities he had undertaken during that period he clarified that during the period he was not really waiting around because he was involved in breaking up the combination (of trailers one presumes), driving on site, reloading or driving back. In this respect it was noted that Linfox paid the Drivers the LHR for what is known as ‘dirt running’.23

[70] Mr Nelson, Organiser for the TWU, gave evidence that, prior to departing from the Linfox yard, a Driver could be delayed by all sorts of variables: maintenance issues, load issues, paperwork issues, so it can take quite some time, sometimes two hours, even three hours. 24

[71] Appendix 2 provides that the LHR is payable to long distance drivers for, amongst other activities, the loading and unloading of vehicles (which I touch on later under Disputed Tasks), and also for delays due to breakdowns and impassable highways. I make mention of the word ‘delays’ because the Linfox BHP Agreement defines the ‘loaded hourly rate’ at cl 1.7.14 as a ‘weeks rate plus the industry disability allowance of 30%’. This rate is paid for ‘loading and unloading of vehicles, delays, breakdowns and impassable highways, long service leave and public holidays’. There is a disparity between the two ‘clauses’ – the ‘Notes’ to Appendix 2 speaks of ‘delays due to breakdowns and impassable highways’, and the definition at cl 1.7.14 speaks only of ‘delays’ although I observe that within the definition the word ‘delays’ is followed by a comma and then ‘breakdowns and impassable highways’.

[72] Having considered the context of the Agreement, and the text (including syntax) of the two clauses, the statutory construction preferred is that cl 1.7.14 refers to ‘delays due to breakdowns and impassable highways’. To read otherwise gives rise to a circumstance where the sentence would read ‘[T]his rate is paid for … breakdowns and impassable highways’ therefore rendering the sentence absent meaning.

[73] For the reasons discussed above, I do not consider that the Activities attract the LHR. Further, while the Applicant referred to the non-driving activity of waiting time for paperwork and trailers to be loaded or unloaded, it is not the case that this constitutes a ‘delay’ as referred to in Appendix 2.

[74] If I am wrong to have interpreted Appendix 2 by adopting the defined terms in the Linfox BHP Agreement, then the definitions provided for by the Long Distance Award are to be considered in addition to those provided by the parties. Clause 91.2(k) provides for the incorporation of the terms of the ‘Modern Awards (including allowances), with some exceptions that are not relevant here. It should however be said that the incorporated terms of Appendix 2 clearly take precedence over any terms provided by the Long Distance Award with respect to rates of pay for ‘long distance drivers’, where there is an inconsistency with the Long Distance Award.

[75] Appendix 2 provides a cents per kilometre rate, the definition of which can be found in cl 1.7.5 of the Linfox BHP Agreement. However, the Long Distance Award provides no equivalent definition, although it references the ‘cents per kilometre method’ at cl 13.3. Clause 13.3(a) of the Long Distance Award places an obligation upon an employer to pay a driver pursuant to either the cents per kilometre method set out in cl 13.4 or the hourly rate method in cl 13.5. The employer is obliged to nominate the method of payment at the employee’s commencement. Further, cl 13.3 makes provision for the payment of allowances including a rate or allowance for any ‘loading or unloading duties’, which will be discussed later.

[76] It has been recognised that the Long Distance Award has an unusual remuneration structure, reflecting the particular circumstances and needs of the industry. 25 Long distance drivers are paid either on the basis of kilometres travelled or by the hourly driving method – not necessarily for the driving component of their work on the basis of actual time taken.26

[77] The ‘Rates of pay - kilometre driving method’ as set out at cl 13.4 of the Long Distance Award, states that an employee engaged in a long distance operation may be paid for the driving component of a particular journey by multiplying the number of kilometres travelled by the ‘cents per kilometre rate for the relevant vehicle’. The clause is subject to cl 13.4(b) that sets out a schedule of agreed distances. However, importantly, cl 14.1 of the Long Distance Award clarifies that the ‘rates per kilometre’ are inclusive of an ‘industry disability allowance’ of 1.3 times the ordinary rate, which compensates for various conditions and responsibilities set out in cl 14.1(a). With the exception of ‘overtime’, those various conditions and responsibilities are identical to those found at cl 4.5.2 of the Linfox BHP Agreement. The conclusion reached therefore mirrors that at paragraph 66 of this decision. I note that the definitions provided by the parties when framing questions to be answered, included a definition of the term ‘cents per kilometre rate’. It essentially reflected the definition within the Linfox BHP Agreement however it made no mention, as is the case with that Agreement and the Long Distance Award of what it comprised off and compensated for (industry disability allowance). To answer the questions articulated has required consideration of these points.

[78] The phrase ‘extra responsibilities associated with arranging loads’ in cl 14.1(a) of the Long Distance Award is in my view, of sufficiently broad import to encompass waiting for paperwork and for trailers to be loaded and unloaded, in addition to coupling and uncoupling trailers in the yard, and oversize loads. On this basis, I find that the ‘cents per kilometre rate’ referred to in clauses 13.3 and 13.4 of the Long Distance Award, compensates the Drivers for the aforementioned extra responsibilities. Further, the requirement to attend toolbox talks, sits squarely within the remit of ‘shift work and related conditions’, or an ‘[e]xtra responsibility associated … with pre and post-trip vehicle safety trips.

[79] The conclusions I have reached are not incongruent with those of past industrial tribunals who have considered the issue regarding payment for non-driving time.

[80] The parties referred to the decision in Phillips & Ors v Linfox Australia Pty Ltd (Phillips). 27 In Phillips, the Industrial Magistrate identified that the question to be answered was whether apart from driving time and loading and unloading time, what other periods triggered an entitlement to receive payment, and if they did - at what rate. The award in question was the Old Federal Award.

[81] In the Four Yearly Review of the Long Distance Award, 28 the Full Bench observed that the current remuneration structure in the Long Distance Award had been contained in Federal awards since at least 1993. The Industrial Magistrate observed that the structure of the Old Federal Award was such that a driver engaged in a long distance operation could be paid for all driving time at a cents per kilometre method or an hourly rate.29 In addition, a long distance driver was paid for any loading and unloading duties. It was stated in Phillips that ‘[a] payment for all hours other than driving time does not fit within the award structure. This would mean that the applicants would be paid for time spent on meal breaks, waiting time, refuelling and the like’.30

[82] The TWU advanced that the Commission was not bound by the decision in Phillips, and the Commission should determine the issue, as to what is and is not included in the cents per kilometre rate paid to long distance truck drivers, on the basis of the evidence and submissions before it. The approach adopted accords with this, but as observed in the Full Federal Court decision in Workpac an enterprise agreement is read as a whole and in context. Therefore, the interpretation turns on the language of the agreement, which is understood in light of its industrial context and purpose. Phillips and the other decisions referred to in this decision, such as the Four Yearly Review of the Long Distance Award, 31 simply illuminate that industrial context.

The Disputed Tasks

[83] The next issue is whether the Drivers covered by the 2018 Agreement, and who are paid a cents per kilometre rate for long distance operations, are entitled to be paid the LHR for the for the following non-driving activities:

a) restraining and un-restraining the load (by way of straps or chains);

b) securing and/or pulling back curtains and the associated gates;

c) putting on and removing gates and dunnage;

d) stowing and un-stowing ramps;

e) removal of debris from the trailer;

f) uncoupling trailers and/or dollies so the loads can be taken off the trailers; and

g) moving trailers to different parts of a customer’s site for the purposes of unloading.

[84] Linfox led evidence that the runs to the FMG sites at Port Hedland, Cloudbreak and Solomon, and the Telfer run differed in their arrangement. 32 For the Solomon and Port Hedland runs, Drivers were required to unstrap their load, but did not wait for the trailer to be unloaded before returning. Instead, once the uncoupling and unstrapping process was completed, they coupled new trailers and departed. Mr Taylor’s evidence was that it took anywhere from 5 minutes to 45 minutes to pull back curtains and unstrap a load.33 This meant, according to Mr Taylor that by the time the Drivers had unstrapped their load, recoupled new trailers and conducted a pre-start check, they could be on-site for up to about 3.5 hours (but generally no more than 2 hours was spent on unstrapping – and the average was less).

[85] With respect to the run to Cloudbreak, in addition to the tasks described for the Solomon and Port Hedland runs, the Drivers were required to deliver their freight to two different parts of the mine. Linfox submitted that for this work Linfox paid the LHR and would continue to do so.

Whether the Disputed Tasks fall under the scope of a ‘long distance operation’

[86] As I have already observed at paragraph 66 of this decision, I do not consider that a ‘long distance operation’ begins and ends with the driving component. Given the incorporation of the industry disability allowance in the ‘rates per kilometre’ or ‘cents per kilometre’, both the Long Distance Award and the 2018 Agreement (through the incorporation of the Linfox BHP Agreement) contemplates that such rates compensate for work, which extends past the driving or movement of the vehicle.

[87] The TWU have submitted that the LHR should be paid in circumstances where the Drivers are moving trailers to different parts of a customer’s site for the purposes of unloading. The basis of the contention does not appear to be that such work falls under the remit of loading and unloading work, but rather that the ‘long distance operation’ ends with the driving component, and therefore the movement of trailers does not form part of the ‘operation’. However, out of an abundance of caution, I will latterly consider whether the ‘moving of trailers’ constitutes loading and unloading work.

[88] The Full Bench’s consideration of the definition of ‘long distance operation’ proves helpful here. In the Four Yearly Review of the Long Distance Award, the TWU sought the inclusion in the Award of a new ‘Pick-up and Drop-off allowance’. One of the triggers for payment of the proposed allowance was the circumstance where an employee engaged in a long distance operation was required to pick up or drop off freight at two or more locations at the principal point of commencement or principal point of destination. The Full Bench rejected the TWU’s claim for the allowance, while its reasoning for rejecting the claim was quite lengthy, it stated in part:

There is nothing in the definition of ‘long distance operation’ to imply that an operation will only involve one pickup and one drop-off. For a journey to constitute a long distance operation, it must (at least) involve moving livestock or materials from a principal point of commencement to a principal point of destination. That does not mean the journey might not involve picking up or dropping off at more than one location. Indeed, that possibility is implicit in the use of the word ‘principal’, which implies that there might be ‘secondary’ points of commencement or destination. 34

[89] While the TWU has argued that the term ‘a long distance operation’ only involves moving freight to and from one location, its meaning is of such import that the dropping of freight to multiple locations on a journey, is envisaged. This type of work does not appear far removed from moving trailers to different parts of a customer’s site for the purpose of unloading. However, that such work is related to the long distance operation, would appear, from what the Full Bench has had to say on the subject, to be dependent on whether the moving of those trailers is additional driving work related to the long distance operation. The Full Bench in the Four Yearly Review of the Long Distance Award 35noted that ‘where an employee who has undertaken a long distance operation subsequently performs additional driving work unrelated to that operation, such as delivering different freight, such work is not part of a long distance operation and is therefore not covered by the Long Distance Award’.36

[90] The Disputed Task of ‘moving trailers to different parts of a customer’s site for the purposes of unloading’ suggests that the freight to be unloaded is that same as that transported or to be transported. However, in circumstances where the Drivers are moving trailers to different parts of a customer’s site for the purpose of unloading freight unrelated to the long distance operation, then the LHR would appear to be triggered. However, based on the question asked, and assuming that the movement of trailers is additional work, which is nevertheless related to the long distance operation, then the Drivers are compensated for such work through the cents per kilometre or rates per kilometre payment.

Whether the Disputed Tasks are ‘unloading or loading work’ and therefore attract the loaded hour rate

[91] In the ‘Notes’ to Appendix 2 of the Linfox BHP Agreement, it stipulates the circumstances when the LHR is payable. Relevant to the dispute before me is the reference in that definition to the loaded hour rate being payable to long distance drivers for the ‘loading and unloading of vehicles’. The question then is whether the Disputed Tasks form part of unloading or loading work.

[92] Assuming, as before, that where a word or phase is used in Appendix 2 of the Linfox BHP Agreement, its meaning is derived from the definition provided for in that same Agreement, cl 5.6.3 provides that ‘loading and unloading means being physically engaged in the loading or unloading of the vehicle and includes tarping, installing and removing gates’. Similarly, cl 3.1 of the Long Distance Award states:

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

[93] Linfox submitted that the only Disputed Tasks that had a connection with ‘loading and unloading’ were: (a) checking loads prior to starting trips; (b) restraining loads (if required) for the purposes of ensuring the safe transportation of the load; and (c) removing restraints (on some but not all runs) to allow access by loaders for unloading. Linfox argued that it was well established that the aforementioned tasks did not constitute loading and unloading, but were part of the safe driving procedure and/or performed simply to allow access by loaders. Reliance was placed on those authorities referred to in paragraph 54 of this decision.

[94] Of those authorities, the decision of Driver J, in the Federal Circuit Court in Laycock v J & C Independent Carriers Pty Ltd [2018] FCCA 6, is clearly pertinent. Driver J considered the interpretation of ‘loading and unloading’ in the Long Distance Award. In respect to that definition, Driver J stated:

[T]he 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 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 purpose, and in most respects curtains can be viewed in the same way. 37

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.

…

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 in to 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 the loading and unloading. Certainly there is evidence that strapping attached to the vehicle for movement of the curtains and then strapping to 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 and Burge v Adelaide Interstate Loading Agency Pty Ltd. Further the same approach was taken by the Chief Industrial Magistrate in Jones v Post Transport Limited.

[95] The TWU led evidence that the task of pulling back curtains and unstrapping loads on three trailers could take up to several hours. 38 At hearing the witnesses for the TWU placed emphasis on the physicality of the work in respect of the Disputed Tasks (with the exception of moving trailers).

[96] As noted, the TWU submitted that Laycock should not be followed on the basis that the claimant was self-represented, and the Court had not the benefit of detailed and considered argument on what activities amounted to ‘loading or unloading’ work for the purpose of the Long Distance Award.

[97] However, having considered the evidence before me, the submissions of the parties,

that the ‘rates per kilometre’ under the Long Distance Award are inclusive of an ‘industry disability allowance’ - which compensates for various conditions and responsibilities set out in cl 14.1(a) of the Long Distance Award, and the definition of ‘loading and unloading’ in that same Award, I am not persuaded that the Disputed Tasks constitute ‘loading and unloading’ work, and therefore do not attract the LHR.

[98] Further, I do not consider that the circumstances so described to me by the witnesses would trigger the operation of cl 4.2 of the Long Distance Award, such that payment for the Disputed Tasks would need to be made in accordance with the Road Transport and Distribution Award 2010.

[99] Therefore, I conclude that the Drivers who are covered by the 2018 Agreement and who are paid a cents per kilometre rate for long distance operations are not entitled to be paid the LHR for the for the Disputed Tasks.

DEPUTY PRESIDENT

Appearances:

A Dzieciol for the Transport Workers’ Union of Australia

Y Shariff of Counsel for Linfox Australia Pty Ltd

Hearing details:

2019.

Perth:

November 13.

Printed by authority of the Commonwealth Government Printer

<PR716291>

 1   [2018] FWCA 4483; AE429372.

 2   MA000039.

 3   AP805988; T0092.

 4   [2011] FWAA 2726; AE885455.

 5   [2014] FWCA 1141; AE406887.

 6   2018 Agreement, cl 91.1.

 7 [2018] FCCA 6.

 8   [2015] FWC 2768.

 9   [2017] FWCFB 1913.

 10   [2006] SAIRC 68.

 11   Laycock v J&C Independent Carriers Pty Ltd [2018] FCCA 6; Bewley v Linfox Interstate Transport [1998] SAIRC 37; Burge v Adelaide Interstate Loading Agency Pty Ltd [2014] SAIRC 31; Jones v Post Transport Pty Limited [1999] NSWCIMC 3; Phillips v Linfox Australia Pty Ltd [2006] SAIRC 68.

 12 [2018] FCAFC 131.

 13 Ibid [197].

 14 Ibid [202].

 15 Ibid [202].

 16   [2017] FWCFB 3005.

 17   [2014] FWCFB 7447.

 18   Ibid.

 19   Berri ‘point 1’ [114]; Golden Cockerel point 8 [41].

 20   Berri ‘point 2’[114].

 21   Berri ‘point 3’[114].

 22   Transcript PN160.

 23   Transcript PN103.

 24   Transcript PN80.

 25   Four yearly review of modern awards [2017] FWCFB 1913 [98].

 26 Ibid [98].

 27   [2006] SAIRC 68

 28   Four yearly review of modern awards [2017] FWCFB 1913 [103].

 29   Phillips & Ors v Linfox Australia Pty Ltd [2006] SAIRC 68 [40].

 30   Ibid.

 31   Four yearly review of modern awards [2017] FWCFB 1913 [103].

 32 Witness Statement of Justin Taylor [77].

 33 Ibid [79].

 34   Four yearly review of modern awards [2017] FWCFB 1913 [97].

 35   Ibid.

 36   Ibid [94].

 37   Laycock v J & C Independent Carriers Pty Ltd [2018] FCCA 6, [27]-[35].

 38 Witness Statement of Gary Deane-Spread [11] – [12]; Witness Statement of Christopher Nelson [23].