Laycock v J & C Independent Carriers Pty Ltd

Background 2 The background facts to this matter appear to be relatively uncontroversial and are set out in the judgment of the primary Judge. In summary, the appellant was employed by the respondent, J & C Independent Carriers Pty Ltd (J & C), as a casual driver, Category (Gr2). Relevantly, he was employed between the period of 14 September 2010 to 22 or 23 December 2014. The appellant's primary responsibility was the long distance driving of heavy vehicles. He was paid a per kilometre salary rate pursuant to the Road Transport (Long Distance Operations) Award 2010 (Award). 3 Mr Laycock commenced proceedings under the FW Act claiming a loading and unloading allowance pursuant to the Award. He also claimed breaches of the general protections provisions of the FW Act. Mr Laycock did not press his claim in respect of the general protections provisions in the Federal Circuit Court. 4 Mr Laycock's claim in the Federal Circuit Court amounted to $77,391.05. Before the primary Judge the respondent complained that the allowance claim had not been particularised with certainty, that the basis of the sum claimed was very difficult to address, and that Mr Laycock's evidence was lacking in particularity. 5 In relation to loading and unloading, the Award relevantly provides: 13.6 Loading or unloading (a) Where an employee is engaged on loading or unloading duties, that employee must be paid for such duties at an hourly rate calculated by dividing the weekly award rate prescribed by clause 13.1 by 40 and multiplying by 1.3 (industry disability allowance), provided that a minimum payment of one hour loading and one hour unloading per trip must be made where loading and/or unloading duties are required. (b) As an alternative to clause 13.6(a), where there is a written agreement between the employer and the employee a fixed allowance based on the hourly rate in clause 13.6(a) may be paid to cover loading and unloading duties, provided that such written agreement is attached to the time and wages record. (c) A casual employee attending to the loading or unloading of the vehicles must be paid a loading of 25% in addition to the rates prescribed by this clause. 6 The Award also states: 3.1 In this award, unless the contrary intention appears: … loading or unloading means being physically engaged in the loading or unloading of the vehicle and includes tarping, installing and removing gates and operation of on board cranes 7 The primary Judge found that the Award is a Modern Award which applied to J & C from 1 January 2010, and that there had been no variation to the definition of loading or unloading since that time. Rather, at [19] his Honour observed that since at least 1993 the awards upon which the Award was based have used a similar definition of loading and unloading. 8 The primary Judge noted that it was not clear from Mr Laycock's evidence what duties he undertook each day of his casual employment with J & C, although there was an intimation that he was engaged in loading or unloading every day of his employment between September 2010 to December 2014, by reference to strapping activity. 9 The appellant's main submissions before the primary Judge were summarised at [10]-[11] of his Honours judgment: Mr Laycock's argument centres on the proposition that the unlatching and opening of "curtains" on the truck that was assigned to him and any application of, or removal of, restraining straps on loads on the truck by him, whether undertaken separately or together, was loading and unloading as contemplated by the Award and, as such, gave rise to an entitlement to the allowance. In essence, Mr Laycock contends that any part of the process of loading or unloading as such gave rise to an entitlement to the allowance. (Footnotes removed) 10 Further, Mr Laycock claimed that he operated a forklift after hours at a place referred to as 'Fernlands'. 11 The respondents submissions are summarised at [12] of the primary judgment: J & C contends that curtain activity, such as by unlatching and movement, is not loading or unloading as contemplated by the Award. Further, it submits that any restraint activity, by strapping through application or removal, was not loading or unloading as contemplated by the Award. To find such activities to be loading or unloading, in its submission, would accord a broad interpretation of the Award not contemplated by the definition of loading and unloading within the Award. 12 In relation to curtains, His Honour found that they perform a similar function to tarps, although they are very different in respect of the simplicity and ease of operation. As, the placement and removal of tarps requires substantial physical effort. His Honour summarised his findings at [57]: In summary then, in respect of curtains I accept that: a) at best it was an incidental part of the loading and unloading process, not contemplated by the Award as it is not referenced, despite the opportunity for the Award to reference it; b) a curtain is not the same as a tarp, although it may be a modern adaptation of a tarp in principle; and c) curtains perform a function related to driving and/or restraint (if there was a restraint type material as part of the curtain) and opening and closing curtains should not be considered a normal part of loading and unloading; 13 Accordingly, his Honour concluded at [60]: Given the Award interpretation principles referred to, as well as the submissions concerning the Award, which I have accepted, I find that opening and closing curtains is not loading and unloading nor should it be considered loading and unloading as contemplated by the Award, except as something incidental to the loading and unloading activities specified in the Award definition. 14 In relation to strapping his Honour accepted the respondent's submissions that strapping is a necessary part of the operation of the vehicle from a safety perspective. Given that the physical tasks of forklifting pallets onto the truck have already taken place before a load is strapped, and the definition of the Award refers to the physical activity associated with loading and unloading, it could not be found that strapping was "loading and unloading" as contemplated by the award. However, his Honour accepted at [63] that whilst strapping may not be a necessary part of loading a vehicle, unstrapping may be a necessary part of unloading a vehicle where that activity is left to those responsible for the unloading work. 15 His Honour concluded at [65], that while the appellant may have voluntarily undertaken strapping work, as there were others who were employed to undertake these tasks, this would not allow a finding that an allowance was payable. 16 In considering the definition of loading and unloading, his Honour determined that: 69. J & C submits, and I accept, that as is contemplated and inferred by the definition of loading and unloading, there is a physical engagement with the loading and unloading of a vehicle. Further, when the word "physical" is used, it implies a physicality to the task that contemplates some reward for the employee for having to undertake a task that is not suitably rewarded within the rate of pay the employee receives. That physicality is what occurred in the operation of J & C's business. … 71. Indeed, the evidence from all witnesses appears to be that loads were placed on pallets and then moved onto and arranged on the vehicle by forklift. It is plain that this is what the Award contemplates by such physical effort and/or by mechanical means. … 73. … Clearly, loading and unloading is the physical act through mechanical or other means of using physical effort to take a load from a truck or unload an item from a truck. 17 Further the primary Judge examined the appellant's submissions that over the course of his employment he would use a forklift to unload at a place called Fernlands. His Honour considered the evidence and concluded that even if this activity did occur, it was unknown to the respondent and therefore an allowance could not have been calculated and paid. His Honour also did not accept that there was any clear evidence that the appellant used a forklift to load or unload a truck at the direction of J & C in the claim period. 18 Before the primary Judge, evidence was adduced from Mrs Jennifer Blackwell and Mr Geoffrey Blackwell. Mr Blackwell was described by his Honour as a long-term operator within the industry. It is not clear to me from his Honour's reasons exactly what roles Mr and Mrs Blackwell had. However in the Notice of Appeal Mr Laycock refers to them as "owners operator of the family owned and operated business". Certainly his Honour refers to Mr and Mrs Blackwell being in the house/kitchen area at the J & C depot when the truck was loaded, and Mr Laycock apparently had discussions with Mrs Blackwell every morning so that she could write in his loads (at [37]). His Honour noted at [43] that Mrs Blackwell gave evidence about "keeping the peace" by making an ex gratia payment to Mr Laycock referable to the delivery of light parcels (otherwise known as "jiffy bags") from July to December 2014. His Honour accepted at [83] the evidence of Mrs Blackwell "that she undertook the assessment and payment to keep the peace" and found that taking a jiffy bag from a vehicle was a delivery and "not loading and unloading and certainly not contemplated as part of the physicality required by the definition of loading and unloading in the award". 19 In summary, his Honour found that no unloading allowance was payable to the Appellant and dismissed his application.

Appeal to the Federal Court 20 In his notice of appeal filed 5 March 2018, Mr Laycock appeals the whole of the primary judgment. He relies on fifteen grounds of appeal: 1. Judgement has been made on wrongful inturpritation of the Award meaning of the allowance for "LOADING OR UNLOADING." 2. loading or unloading means "Being Physically Engaged in the loading or unloading of the Vehicle & includes tarping, installing & removing gates & operation of on board cranes. 3. The award does not state Physically loading or unloading of the vehicle. It does how ever state Physically Engaged in the loading or unloading of the vehicle. 4. So there for the judgement is incorret. 5. Being Physically Engaged in the loading or unloadimg of the vehivle would apply to openning curtains & Closing curtains Unstraping & Strapping of the load as if it is not performed the loading or unloading of the vehicle could not happen. 6. Openning or closing curtains & straping or unstraping the load all involve Being Physically Engaged in the Loading of the vehicle. 7. No diffrence to tarping or gatting a vehicle or operating an on board crane. Which all involve Being Physically Engaged to load or unload a vehicle. The Award does not have to be Amended to include curtains or strapping as they are already included just not stipulated in the Award. 8. All items that are put onto a Vehicle are classified as part of the load no matter how big or small all contain weight part of the gross weight of the vehile all required to be loaded or unloaded onto or off of the vehicle all require physically engagement of a person to load or unload usually the driver all taking time. 9. I still had to physically work to get things on an off the vehicle. 10. If loading or unloading allowance is not payable under the Award I worked as Slave labour for 9.5 years of my employment. 11. The whole judgement is full of things that are not correct Jiffy Bags are freight containing weight so are small parcels all require Physical Engagement to get on or off of the vehicle. 12. Tarps are not load restraints nor are Curtains enless the Curtain requirements are meet an in this case they did not meet the Transport Departments requirements. 13. I was stopped in court from proving that lies were being told. 14. Fraudulant evidance was proven in court to have been provided by the respondants in court. 15. The Award if you read it covers everything. Don't take out or add words to it read it the way it was written it is a legal document by law. "BEING PHYSCIALLY ENGAGED IN THE LOADING OR UNLOADING OF THE VEHICLE & INCLUDES TARPING, INSTLLING & REMOVING GATES & OPERTION OF ON BOARD CRANES". NOWHERE does it say "PHYSICALLY LOADING OR UNLOADING OF THE VEHICLE". (Errors in original; boldface in original; underlining omitted.) 21 Mr Laycock seeks the following relief from the Court: 1. That the respondant pay the loading an unloading allowance to the Appellant. 2. That the respondants pay double the minimum Award Allowance of loading or unloading as easierly calcuated out by the amount of pickups an dropps off from the day sheets provided in evidance equaling 4hours plus per day/trip. (only seeking 4 hours per day as it can not be correctly calcuated an everyone knowing the amount of hours is signifantly higher per day) See calcuatlon provied. from final submissions to court 23 page 26. Attached 3. That the respondants pay for the entire time of employment period of 9.5 years employment being the period of men at work as well back past the 6 year peroid limitation periods. See final submissions to court for other cases where the limitatin period have been removed to allow this.18 on wards page 23 4. That the respondants pay the whole period of employment as no changes to the Appellants work accured other then the way the Appellant was paid in around about way. 5. That Jeffery Robbert Charles Blackwell & Jennifer Ann Blackwell as owners opperator of the family owned & operated bussiness as stated in both their affidavites are wholey responce able for the underpayment of the Apellant. See final submissions to court for cases for reasoning payment from. 6. That the amount of sought is $373,388.00. Far short of what should have been paid in the first place. 7. That the Apellant be paid first. That the Appellant's superannuation be paid second. That the taxation office be paid last. (Errors in original.) 22 In addition to his notice of appeal filed 5 March 2018, Mr Laycock also filed submissions on 23 July 2018. These submissions consist of 58 paragraphs and address a broad range of matters. They do not particularise or substantiate the grounds of appeal. Further submissions were also filed by the appellant on 2 August 2018. 23 At the hearing, before me, Mr Laycock represented himself and relevantly made the following oral submissions: HER HONOUR: Okay. Now, this matter has already been heard by the Federal Circuit Court. MR LAYCOCK: Yes. HER HONOUR: So you are saying that Judge Driver was wrong. MR LAYCOCK: Yes. HER HONOUR: Do you want to take me to your key points as to why Judge Driver was wrong? MR LAYCOCK: Under - I drive a truck in and I stop. HER HONOUR: I beg your pardon? MR LAYCOCK: I drive a truck in. I stop at a place. Okay. I hop out. I open curtains. I close curtains. I unstrap loads. I strap down loads. I ..... load or unload it on a kilometre rate, all right. Now, they say I'm not entitled to be paid for that time of opening curtains, closing curtains, unstrapping the loads, strapping loads down - I'm waiting ..... be loaded. On an hourly rate, if I drive in, I don't turn the clock off. It's still running. I hope out. I open curtains. I close curtains. I unstrap. I strap. I wait for the forklift to load and I still get paid for it, so why don't I get paid for it on a kilometre rate - on an hourly rate? It's payable on an hourly rate under the hourly rate. Why isn't is payable under the hourly rate on a kilometre rate? HER HONOUR: So Federal Circuit Court judge looked at this as well. MR LAYCOCK: They classify loading an unloading allowance as physical loading or unloading. That's not what it states as the meaning in the award. HER HONOUR: So you're saying the Federal Circuit Court judge was wrong - - - MR LAYCOCK: He states - - - HER HONOUR: - - - in interpreting the award and what's meant by loading and unloading? MR LAYCOCK: He has taken loading or unloading, turned it into loading and unloading and physical out of the meaning which is being physically engaged in the loading or unloading of a vehicle. Nowhere does it say physical loading or physical unloading all of which is physical. HER HONOUR: Right. MR LAYCOCK: All of which you have to be engaged to do to load or unload the truck. HER HONOUR: Okay. MR LAYCOCK: Clearly, under 5.14 - 5.1.4C of the award, where I won't lose income, I am entitled to be paid for it. Comes under section 2.4 of the current award 25 too - 2010. HER HONOUR: Okay. Is that your key point? Is that - is that the essence of the appeal? MR LAYCOCK: That involves about - - - ER HONOUR: Is that it? MR LAYCOCK: - - - $500,000 worth of payment. HER HONOUR: No, I'm not minimising the importance of the appeal, I'm saying as far as the arguments before the court are concerned, is that your primary argument? Is that it? That's the point on which the judge made a mistake? MR LAYCOCK: Yes, basically, and all others are just irrelevant, basically. 24 At the hearing Mr Laycock confirmed that, in these submissions, he was making reference to grounds of appeal 1-12 and 15. In ground of appeal 13 Mr Laycock claimed, in summary, that he was denied natural justice, and in ground of appeal 14 Mr Laycock claimed that the primary Judge erred in accepting the credibility of witnesses for the respondent but not accepting his credibility.

Consideration 25 The appellant brings his appeal pursuant to s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth). The principles regarding the nature of an appeal brought under s 24(1)(d) are well established. In Thredgold v Fyfe Pty Ltd [2013] FCA 1363, White J explained: 15. The appellant brings his appeal under s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth). An appeal under s 24 is in the nature of a re-hearing and not an appeal in the strict sense, nor an appeal de novo (Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 at [75]; (2001) 205 CLR 507 at 533; Warramunda Village Inc v Pryde [2002] FCA 250 at [34]; (2002) 116 FCR 58 at 66). This means that the Court must consider whether the judgment of the Federal Circuit Court is affected by error (Allesch v Maunz [2000] HCA 40 at [23]; (2000) 203 CLR 172 at 180-1). 16 As the appellant appeals against a discretionary judgment, he must show an error of the kind identified in House v The King (1936) 55 CLR 499 at 504-5, namely, that the FCC Judge failed to have regard to a relevant consideration, had regard to an irrelevant consideration, or made some error of fact or law. If the appellant is unable to establish an error of that kind, the Court may intervene if it is satisfied that the decision is plainly unreasonable or unjust. This Court is not entitled to intervene simply because it considers that, if it had been in the position of the primary judge, it would have taken a different course. 26 These principles have been accepted in a number of subsequent cases including McAdam v Chylos Pty Ltd [2015] FCAFC 161 and Eriksson v Commonwealth Bank of Australia [2014] FCA 561. 27 In this proceeding, the Court must consider whether the appellant has demonstrated that the primary judge made a legal, factual or discretionary error; Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172. 28 The crux of the appellant's case appears to rely on the submission that the primary Judge erred in interpreting the terms "loading" and "unloading" in the Award, in particular the reference to a "physical engagement" with the loading and unloading of a vehicle. The appellant alleges in his Notice of Appeal that the primary Judge erred in finding that the Award requires the "physical loading and unloading of the vehicle" and not "being physically engaged in the loading or unloading" which should encompass the following activities: (a) Opening and Closing curtains. (b) Strapping and unstrapping loads. (c) Loading any items onto the vehicle regardless of size or weight. 29 In considering the definition of "loading" and "unloading" the primary Judge extensively quoted the decision of Transport Workers' Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829; (2014) 318 ALR 54 (Linfox) which in turn referred to the following observations of Madgwick J in Kucks v CSR Limited [1996] IRCA 141; (1996) 66 IR 182 (Kucks) at 184: It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand. 30 In Linfox, Tracey J further notes at [31] that the decision of Madgwick J in Kucks: … was quoted with approval by two members of the High Court in Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at 271 (Kirby J), 282-3 (Callinan J). Shortly afterwards these principles were restated by French J in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at 440 [57]: It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities - City of Wanneroo v Holmes (1989) 30 IR 362 at 378-379 and cases there cited. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned - see eg George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504 (Street J). It may be that this means no more than that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdity or illogicality or apparent inconsistencies. But while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City of Wanneroo v Holmes (at 380): Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties. 31 In the primary decision in this case, his Honour stated: 27. I accept that, as a starting point, the Award provision should be applied by reference to the words within the definition and in the context of the industry in which J & C operates and has operated according to its understanding of loading and unloading. I accept from the evidence of Mr Blackwell that the industry understanding is that loading and unloading reflects physical effort, and that physical extension applies to physical effort, because of the nature of loading and unloading which requires such physical effort. This is also an appropriate approach to considering the reference to gates and tarping as well as on board cranes in the Award definition. The clear contemplation is that loading and unloading through means such as forklifts, requires physical exertion, the use of an on board crane, and physical effort in dealing with gates and tarpaulins (tarps). The submission of J & C is that curtains are not tarps given the clear difference between those items and also the ease with which curtains are dealt with, and strapping is a restraint activity and not a loading and unloading one as contemplated by the Award. Strapping activities are said to be undertaken for safe driving purposes, and in most respects curtains can be viewed in the same way. 28. I accept that strapping is a restraint activity to secure a load rather than part of the loading process. On the other hand, unstrapping a load that has been strapped is necessary to gain access to the load for the purpose of unloading, and it would be artificial to draw a distinction where an employee who unloads a truck must first unstrap the load in order to gain access to it. That is not to say, however, that an employee who unstraps a load but otherwise plays no part in the unloading process is participating in unloading. 29. I also accept that curtains perform a restraint function, but a tarp once secured to a truck tray, likewise performs a restraint function. Both also protect a load from the weather. There is, in my view, much to be said for the proposition that curtains perform a somewhat similar function to tarps, although they are very different in respect of the simplicity and ease of operation of curtains, whereas the placement and removal of tarps requires substantial physical effort. (Footnotes omitted.) 32 After further consideration his Honour at [34] accepted that, at best, strapping and unstrapping were incidental to loading and unloading, and that if they were intended to be part of loading and unloading these activities would have been directly referenced within the definition. 33 No error is apparent in this reasoning of his Honour. His Honour has construed the definition of "loading or unloading" as requiring physical effort, to compensate a truck driver who is physical engaged in the loading and unloading of the vehicle. In this respect, I am not persuaded that his Honour erred in finding that Mr Laycock was not physically engaged in loading or unloading when he opened and closed curtains and strapped and unstrapped loads. 34 Insofar as concerns Mr Laycock's claimed work at Fernlands, his Honour noted that no evidence was led by Mr Laycock from any Fernlands representative. Further, evidence was given by the respondent's witnesses that they were unaware of any after-hours unloading by Mr Laycock at Fernlands. Given the uncertainty of the evidence, his Honour found that no allowance was payable. 35 No error is apparent to me from this reasoning. I have reviewed the appellant's notice of appeal and various submissions, both those made in writing and oral submissions before me. The specific basis on which the appellant alleges that the primary Judge made errors of facts in relation to the operation of curtains, strapping, forklifts and gates and his activities at Fernlands remains unclear to me. At best, the appellant's submissions appear to suggest that the primary Judge erred by including in the judgment "things that are not correct" including that "tarps are not load restraints nor are curtains". I do not consider that the appellant's submissions that the judgment included "things that are not correct" sufficiently identifies a basis on which the primary Judge may have erred in fact. Although the appellant clearly does not agree with the decision of the primary Judge that strapping and opening and closing curtains does not give rise to the loading or unloading allowance in clause 13.6 of the Award, no error of fact is sufficiently established by the appellant. 36 The appellant's notice of appeal also asserts that: 11. The whole judgment is full of things that are not correct Jiffy Bags are freight containing weight so are small parcels all require Physical Engagement to get on or off of the vehicle. 37 I do not accept that the primary judge erred in relation to his Honour's findings regarding the delivery of jiffy bags. As noted above, I accept his Honours finding in relation to the physicality requirement of loading and unloading. I also consider that the removal of a small parcel from a vehicle is not encompassed by the definition of loading and unloading in the award. To consider the removal of a jiffy bag to be loading or unloading would be to broadly interpret the Award, ignore the evident purpose of the award and to ignore the context in which the term would be understood in the relevant industry. 38 In relation to issues of credit of the respondent's witnesses, the weight given by the primary Judge to the evidence of witnesses was, ultimately, a question for his Honour. I note that it was open to the primary judge to accept the evidence of Mr Blackwell that loading and unloading required "physical effort". As noted above, it is important to consider the meaning of phrases contained in industrial awards in ways likely to have been understood in the context of the relevant industry. The material before the primary judge identified that Mr Blackwell had been in the transport industry for over twenty years. He was well placed to provide evidence of the industry's understanding of the phrase. While the definition of "loading and unloading" contained in the Award, that is, "being physically engaged in the loading or unloading of the vehicle" when read in isolation could refer to any physical activity in relation to loading or unloading a vehicle, his Honour found at [27] that such a broad interpretation would conflict with the industry's understanding of the phrase. 39 Finally, there is no evidence before me to indicate that the appellant was denied natural justice in the presentation of his case in the Federal Circuit Court, including that he was prevented from adducing evidence or questioning witnesses of the respondent. The claim of Mr Laycock that documentation of the respondent was "fraudulent" is, with respect, an allegation in respect of which no supporting evidence is identified. 40 The appropriate order is that the appeal be dismissed. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.