Transport Workers' Union of New South Wales v Linfox Australia Pty Limited

These proceedings 81 It was put by the parties that a decision upon whether breaks were paid or unpaid would resolve the issue between the parties. It certainly does not, however, resolve the whole of the matter as it has been agitated before the Commission. 82That is because, as I made I hope clear to the respondent in the course of hearing, the proposition advanced by the respondent that it is entitled to offset the payments it made to drivers for time taken on fatigue breaks is not made out on the evidence before the Commission. 83I have referred above to the fact that the application of the principles in Ray v Radano loc cit is a question of mixed fact and law. The fact that monies were paid, even overpaid, is not sufficient of itself to entitle an employer to offset those monies against an underpayment. In some cases it may; in some it may not: Poletti v Ecob (No 2) (1989) 31 IR 321; Ceccato v Almona [2007] NSWIRComm 318. 84There must be evidence of the way in which the monies were characterised when they were paid, and the purpose for which they were paid. That evidence is not before the Commission. Mr Verlander's affidavit does not carry off the evidentiary burden the respondent has in order to establish a right to offset payments against underpayments admittedly made pursuant to the Determination. 85It may not matter: as Mr Warnes for the applicant put at the end of the proceedings: Commissioner, I just thought I'd mention this and I can't say this with any certainty but my hope will be that whatever decision you hand down here obviously depending on any appeal by either party would solve this matter. No matter which way it went, I would hope that and if TWU has a relationship with Linfox, this issue of fatigue breaks has been adjudicated on so to speak, then the parties can go back and everyone knows what their obligations are then. The only element of contention we really have is the payment of these fatigue breaks so we hope that you wouldn't have to do anything, that it probably would be a final decision. (transcript, pp 68-69) 86It may be that the parties can determine between themselves whether an offset is lawfully available. I hope so. But I am bound to say that the necessity to give an incomplete decision in this matter is an example of the unsatisfactory result that can arise from parties electing to run part of a case before the Commission. Such a course is rarely efficient and can, not infrequently, lead to duplication and indeed error: New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union and Liverpool City Council [2014] NSWIRComm 17 at [8]. 87I hope that the parties can, as I say, deal with this aspect of the matter; if not, the Commission will, of course, determine the question if it is brought before it.