TWU appeals ruling that found owner-drivers should not be paid for taking mandatory fatigue management breaks
A recent ruling denying New South Wales owner-drivers payment for mandatory fatigue breaks may be short lived, with the Transport Workers Union (TWU) launching an appeal against the decision.
The NSW TWU has lodged documents with the NSW Industrial Relations Commission in a
bid to overturn commissioner Peter Newall’s finding that owner-drivers working under the Transport Industry – General Carriers Contract Determination were not entitled to be paid for the breaks.
In a case involving owner-drivers contracting to Linfox, Newall ruled that fatigue and lunch breaks were the same. The contract determination states companies do not have to pay for lunch breaks.
But NSW TWU assistant secretary Michael Aird believes owner-drivers should be entitled to payment for them because they are essentially still at work.
“We say you really have to look at the nature of work a truck driver does. Someone who is not at home with their family…they’re on the side of the road somewhere, their time is not their own,” Aird says.
“We’re not talking about where someone is a long distance driver and they’re parked up for the evening. But while they are essentially at work, if they’re taking their fatigue and crib breaks their time is not their own and they need to paid for that time.”
Aird claims Newall has “misconstrued the determination” and that owner-drivers should be reimbursed for all time spent doing a job.
“The time spent in the performance of the transport task needs to be paid for,” he says.
In the initial hearing, Newall dismissed the union’s claim that fatigue breaks should be paid for because they formed part of a contract of carriage.
He also dismissed the TWU’s argument that payment for the breaks should be made in the “public interest”.
Linfox was originally paying owner-drivers in NSW for fatigue breaks but stopped after it considered it did not need to. It then underpaid the owner-drivers to offset what it considered were overpayments.
Newall did not rule on whether Linfox did the right thing. He sent the company and the TWU away to discuss the issue to see if they could reach an agreement, but Aird says no discussions have yet taken place.
“Not at this stage but we are hopeful that we will have discussions about this decision shortly,” he says.
Although the case centres on owner-drivers working under the contract determination, Aird believes payment for fatigue breaks should be applied nationally.
“We have been pursuing that agenda across NSW and across the country and will continue to do so,” he says.