Laycock v J & C Independent Carriers Pty Ltd

1. The appeal be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

COLLIER J: 1 Before me is an appeal from the decision of the Federal Circuit Court of Australia in Laycock v Independent Carriers Pty Ltd [2018] FCCA 6. In that decision, the primary Judge dismissed Mr Laycock's application under the Fair Work Act 2009 (Cth) (FW Act) in which he claimed he was entitled to be paid a loading and unloading allowance entitlement.

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.