Transport Workers' Union of New South Wales v Linfox Australia Pty Limited [2014] NSWIRComm 1013

Industrial Relations Commission New South Wales Medium Neutral Citation: Transport Workers' Union of New South Wales v Linfox Australia Pty Limited [2014] NSWIRComm 1013 Hearing dates: 02/09/2013, 04/09/2013, 24/09/2013, 10/04/2014, 21/05/2014 Decision date: 12 June 2014 Jurisdiction: Industrial Relations Commission Before: Newall C Decision: Fatigue breaks prescribed by the Road Transport (Vehicle and Driver Management) Regulation 2005 are unpaid breaks for the purposes of the Transport Industry - General Carriers Contract Determination. Catchwords: TRANSPORT INDUSTRY - Industrial dispute - Failure to pay pursuant to increase in rates in Contract Determination - claimed offset - fatigue breaks - whether fatigue breaks 'interruption to work' within meaning of the Determination - held, fatigue breaks 'interruption to work' and therefore unpaid. JURISDICTION - asserted want of jurisdiction - claim that contracts of carriage not identified - jurisdictional objection one of form rather than substance - jurisdiction found. OFFSETS - claim that overpayment may be offset against underpayment - mixed question of fact and law - not able to be determined as evidence insufficient PRACTICE AND PROCEDURE - parties presenting only part of a case - vice of decisions on preliminary issues - efficient use of Commission's resources Legislation Cited: Industrial Relations Act 1996 ss.130, 175, 332(2) Road Transport (Vehicle and Driver Management) Act 2005 Road Transport (Vehicle and Driver Management) Regulation 2005 Cases Cited: Amcor Limited v CFMEU (2005) 222 CLR 241 Australian Rail, Tram and Bus Industry Union, New South Wales and State Transit Authority [2013] NSWIRComm 102 Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 Ceccato v Almona [2007] NSWIRComm 318 Certain Lloyd's Underwriters and Underwriters Subscribing to Contract No IHOOAAQS v Cross (2012) 293 ALR 412 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 Health Services Union v Director-General, Department of Health (NSW) [2010] NSWIRComm 42; (2010) 193 IR 359 King Gee Clothing Company Pty Ltd v The Commonwealth (1945) 71 CLR 184 Kirk v Industrial Court (NSW) 2010 239 CLR 531 New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union and Liverpool City Council [2014] NSWIRComm 17 Poletti v Ecob (No 2) (1989) 31 IR 321 RJ Enterprises (Aust) Pty Ltd v Booth Transport Pty Ltd [2012] NSWIRComm 4 Ray v Radano (1967) 67 AR(NSW) 471 Category: Principal judgment Parties: Transport Workers' Union of New South Wales - Applicant Linfox Australia Pty Limited - Respondent Representation: McCabes Lawyers - Respondent File Number(s): IRC 713 of 2013