Owner-drivers shouldn't be paid for fatigue breaks, commission rules

By: Brad Gardner

NSW commission says Linfox did not need to pay owner-drivers for taking mandatory rest breaks.


Owner-drivers in New South Wales should not be paid for taking mandatory fatigue management rest breaks, the state’s Industrial Relations Commission has ruled.  

In a case that pitted the Transport Workers Union (TWU) against Linfox, commissioner Peter Newall found that owner-drivers working under the Transport Industry – General Carriers Contract Determination were not entitled to receive payment for fatigue breaks.

Newall likened fatigue breaks to meal breaks, which are not paid for under the contract determination.

The document sets rates and conditions for owner-drivers in NSW and lists meal breaks as an "interruption to work", which is not to be paid for.

Fatigue regulations in NSW refer to rest breaks as "time that is not work", leading Newall to dismiss the TWU's claim that fatigue breaks should be payable under the contract determination.

"In my view the compulsory fatigue breaks are of precisely the same nature as the meal break and must be treated in the same way under the Determination," Newall says in his written judgment.

"The fatigue break is accordingly an ‘interruption to work’ as those words are used in the Determination.  An ‘interruption to work’ is not…to be contract time and is not to be paid time.

"It follows that the fatigue breaks are, as the Determination presently stands, unpaid breaks."

Newall says fatigue and meal breaks are the same because both stipulate a driver cannot be asked to work when taking either break.

The issue over payment for fatigue breaks flared when the TWU discovered Linfox failed to increase the rates of 10 owner-drivers as it was required to do under the contract determination.

Linfox says it did not increase the rates because it was offsetting payments it inadvertently made to the owner-drivers for fatigue breaks, which the company believes should be unpaid.

Linfox also believed it was entitled to offset the overpayments with underpayments.

While Newall ruled in Linfox’s favour on no payments for fatigue breaks, he left open the question of whether it could underpay the owner-drivers to make up for the overpayments.

He directed the union and Linfox to discuss the matter between themselves and see if they could reach an agreement.  

"I hope that the parties can, as I say, deal with this aspect of the matter; if not, the Commission will, of course, determine the question if it is brought before it," Newall’s judgment states.  

He says Linfox did not provide enough evidence to justify its claim that it was entitled to offset the overpayments.

"The fact that monies were paid, even overpaid, is not sufficient of itself to entitle an employer to offset those monies against an underpayment. In some cases it may; in some cases it may not," he says.

"There must be evidence of the way in which the monies were characterised when they were paid, and the purpose for which they were paid. That evidence is not before the Commission."

While the TWU conceded there was no requirement in the contract determination stating payment for fatigue breaks, it urged the commission to mandate payment in the "public interest".

It argued all steps should be taken to prevent fatigue and that requiring payment for rest breaks would provide an incentive for owner-drivers to comply with their obligations.  

Newall, however, found that such an approach would be beyond the commission’s scope.

"It is beyond doubt that public policy dictates that all that can [be] put in place to prevent driver fatigue should be put in place, as the applicant has submitted," Newall writes.  

"It is not open to the Commission to recast the provisions of Acts and regulations to achieve public policy objectives, however reasonable those objectives may be."

The TWU told the commission fatigue breaks should be payable because they formed part of a contract of carriage and that Linfox required owner-drivers to take them.

"We say that it flows that a fatigue break is part of work because Linfox has directed the work to be performed with a fatigue break included," the TWU says. 

Newall says regulations, not Linfox, dictate fatigue breaks. 

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