TWU loses appeal against ruling that found owner-drivers should not be paid when taking fatigue management breaks.
Mandatory fatigue management breaks for owner-drivers in New South Wales will continue to go unpaid, after an appeal against a ruling denying payment was struck down.
The full bench of the Industrial Relations Commission has upheld commissioner Peter Newall’s finding that owner-drivers working under the Transport Industry — General Carriers Contract Determination should not be paid for taking fatigue breaks required by law.
Newall found that the breaks were an “interruption to work”, similar to meal breaks which are not paid for.
The Transport Workers Union (TWU) appealed Newall’s decision, but the full bench found that drivers taking fatigue breaks are “not performing any physical or mental labour” related to their contract.
“Therefore, as a matter of ordinary language, rest time (or a fatigue break) is an interruption to work,” commission president and justice Michael Walton says.
“There does not appear to us to be any basis for distinguishing a lunch break from a fatigue break…a meal break is to be regarded as an interruption to work that is not included in contract time. Similarly, a fatigue break is an interruption to work and not included in contract time.”
The TWU argued that fatigue breaks should be paid for because owner-drivers are required to take them as part of their job.
The issue came to light when Linfox did not increase the rates of 10 owner-drivers in line with requirements in the contract determination.
Linfox decided to freeze the increases to offset the payments it had inadvertently made for fatigue management breaks.
The commission directed the TWU and Linfox to sort out whether the company could underpay the owner-drivers to offset the overpayments.