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Subbies score victory on empty running and waiting time

NSW court orders that sub-contractors be paid for running empty between deliveries and for loading and unloading goods

By Brad Gardner | March 23, 2012

The NSW Industrial Court has ordered trucking operators to pay sub-contractors for time spent travelling empty between deliveries and for loading and unloading goods.

The full bench came down in favour of three owner-drivers who, in separate cases, hauled Gregory’s Transport, General Carrying and Booth Transport before the court to seek a better deal under the NSW Transport Industry – General Carriers Contract Determination.

Gregory’s, Booth and General Carrying argued sub-contractors should only be paid when travelling with goods on board and that payment should be limited to when a vehicle is moving.

“It is not necessary that the transportation of goods be the sole subject matter of the contract, so long as it is a dominant purpose,” Justice Roger Boland says.

“Obviously, such a contract could legitimately deal with a number of ancillary and necessary matters, such as arrangements for the pick-up of goods, loading and unloading goods and the like.”

The court ruled that drivers travelling to and from sites to pick up goods for delivery are “performing obligations under the contract of carriage” and should be remunerated.

Boland says drivers should be paid the hourly rate for time spent loading and unloading, even if they are only supervising, and for completing necessary paperwork.

He labelled the arguments put forward by Booth, Gregory’s and General Carriers as “unnecessarily and inappropriately restrictive”.

“They are unduly restrictive because they ignore the fact that a contract of carriage extends beyond the mere movement of the goods after they have been loaded until arriving at the place of delivery,” Boland says.

The NSW branch of the Australian Road Transport Industrial Organisation (ARTIO) intervened in the case.

It claimed a ruling in favour of sub-contractors would lead to “absurd results” in cases where sub-contractors were paid for the loading or unloading of a truck even if the task was performed by someone else.

The group argued a principal contractor would be required to pay its employee for loading or unloading and the sub-contractor for supervising the task.

“There is simply no basis to support such a submission. There is certainly no evidence upon which we might conclude that there is any substance to the submission,” Boland says.

“If the results would create some absurdity in terms of operating costs, then some evidence would need to be adduced in support of such a contention. There is no such evidence in these proceedings. We reject this submission.”

The court also struck a blow against prime contractors in terms of severance payments under the Contract Determination. All three argued payments should only be calculated from August 2, 2007 – the date when the industrial instrument took effect.

However, the court ruled owner-drivers should receive severance payments for any period of service before the determination was implemented.

One of the sub-contractors, Rade Josifovski, began hauling goods for Booth Transport in April 2002. The owner-driver who took on General Carrying, Wayne Stirling, started in August 2005. Gregory’s Transport hired Valentin Georgiev in 2004 to cart and unload freight.

The court also upheld the wording of the Contract Determination stating drivers are obliged to take a half-hour unpaid lunchbreak.

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