Crib breaks count as work, Fair Work Australia rules, so Linfox must pay drivers overtime rates when they take them
By Brad Gardner | November 1, 2012
Linfox will begin paying its truck drivers overtime when they take crib breaks after Fair Work Australia ruled the breaks amounted to work.
The full bench of the industrial umpire quashed a previous ruling allowing Linfox to pay its drivers employed under the Linfox Road Transport and Distribution Centres National Enterprise Agreement ordinary rates when they took crib breaks while working overtime.
FWA Senior Deputy President Lea Drake, Deputy President Anne Harrison and Commissioner Anne Gooley rejected Linfox’s argument drivers should not be paid overtime rates because breaks are not work.
Drake says drivers are entitled to overtime payments because crib breaks require them to stay at work and be available to deal with contingencies.
Linfox drivers must remain with their vehicles, answer phones and radios, move up in queues and attend to any other needs while on their crib breaks.
“They may be required to perform duties if the need arises. They are not entitled to leave the workplace. They are not at large to do what they please during that period. They are at work and required to stay at work,” Drake says.
“Whatever the past practice has been regarding payment for these breaks at different Linfox sites, we are satisfied…that crib breaks which occur after ordinary hours, and in overtime hours, are required to be paid at overtime rates.”
The Transport Workers Union (TWU) lodged the appeal against Commissioner Greg Harrison’s original ruling that drivers were not entitled to overtime rates.
The Linfox agreement and the Road Transport and Distribution Award, provisions of which were slotted into the agreement, do not mention overtime payments for crib breaks.
However, the provision of the Award that appears in the agreement specifies drivers must have a paid break after they complete their scheduled shift and before starting overtime.
“That would, prima facie, indicate that payment for the break is to be at the rate which applies after the completion of ordinary hours – i.e. the overtime rate,” Barrister Adam Hatcher, who represented the TWU, told FWA.
Drake rejected Linfox’s submission that the omission of overtime payments for crib breaks in the Award supported payment at ordinary rates.
“On the contrary, we are persuaded that this silence supports the TWU’s submission that the rate of payment should be at overtime rates,” she says.
The Award states drivers must be paid time and a half for the first two hours of overtime work and then double time after that.
The ruling brings to an end a dispute that started between the TWU and Linfox earlier this year when the operator introduced a new payroll system.
Linfox discovered what it thought were erroneous overtime payments being made to staff.
The new payroll system led to all drivers being paid ordinary rates.
