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[2014] NSWIRComm 1013
Industrial Relations Commission (NSW)
2014-06-12
Original judgment source is linked above.
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.
Conclusion and interpretation 88In my view, the proper interpretation of Clause 1 of the Determination is that the phrase 'other interruptions to work' there appearing includes the fatigue breaks required by the regulation. It follows that the fatigue breaks are, as the Determination presently stands, unpaid breaks. PETER NEWALL Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 June 2014
Transport Workers' Union of New South Wales
Linfox Australia Pty Limited
Interpretation of terms of an industrial instrument 49I turn briefly to the proper approach to construction of an industrial instrument. 50The High Court has recently and comprehensively stated the principles of statutory construction: Certain Lloyd's Underwriters and Underwriters Subscribing to Contract No IHOOAAQS v Cross (2012) 293 ALR 412; [2012] HCA 56. 51Nothing there said modifies the principles set out by the Full Bench of this Commission in Director of Public Employment by her agent the Commissioner of New South Wales Fire Brigades and New South Wales Fire Brigades Employees' Union [2008] NSWIRComm 158, which also establishes that the canons of construction there identified apply equally to industrial instruments. 52The basic and overriding principle is that construction of any provision must involve a purposive approach: Certain Lloyd's Underwriters loc cit at [25]; Fire Brigade Employees loc cit at [42]. That step must involve the consideration of the meaning of a provision in the context of the instrument as a whole: Certain Lloyd's Underwriters loc cit at [23], [88]. 53An industrial agreement is to be understood in the light of its industrial context and purpose and must have regard to the industrial purpose of the agreement, and the commercial and, I emphasise for the purposes of this decision, legislative context in which it applies: Amcor Limited v CFMEU (2005) 222 CLR 241 at [2], [13], [30]. 54So far as this matter turns on the terms of the regulation, the principles relating to the construction of regulations are of course the same as those applying to the construction of the relevant enabling legislation: Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 398; King Gee Clothing Company Pty Ltd v The Commonwealth (1945) 71 CLR 184 at 195.
(2005) 222 CLR 241
(1996) 186 CLR 389
(2012) 293 ALR 412
(2010) 193 IR 359
(1945) 71 CLR 184
(1989) 31 IR 321