Industrial Relations Commission New South Wales Medium Neutral Citation: Transport Workers' Union of New South Wales v Linfox Australia Pty Ltd (No 2) [2014] NSWIRComm 57 Hearing dates: 19 September 2014; 18 November 2014 Decision date: 05 December 2014 Jurisdiction: Industrial Relations Commission Before: Walton J, President, Boland AJ, Tabbaa C Decision: The Full Bench makes the following orders: (1) Leave to appeal is granted. (2) The appeal is dismissed. (3) The decision of Newall C at [88] of the Commissioner's reasons for decision is confirmed Catchwords: APPEAL - Application for leave to appeal and appeal by Transport Workers Union from first instance decision - Determined at first instance that a mandatory fatigue break is an "interruption to work" within the meaning of the definition of "contract time" under the Transport Industry - General Carriers Contract Determination and unpaid- AWARD INTERPRETATION -Principles of award interpretation - Consideration of what is "contract time" - Consideration of what is "work" - Held that fatigue break is an interruption to work and unpaid - Appeal dismissed Legislation Cited: Commonwealth Employees' Compensation Act 1930 (Cth) Heavy Vehicles (Adoption of National Law) Amendment Act 2013 Heavy Vehicle National Law (NSW) Industrial Relations Act 1996 Road Transport (Vehicle and Driver Management) Act 2005 Road Transport (Vehicle and Driver Management) Regulation 2005 Cases Cited: Australian Municipal, Administrative, Clerical and Services Union v Treasurer of Commonwealth (1998) 82 FCR 175; (1998) 80 IR 345 Australian Workers Union v Department of Primary Industries and Resources SA (2007) 168 IR 249 Automatic Fire Sprinklers v Watson [1946] HCA 25; (1946) 72 CLR 435 City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426 City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 Commission of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 293 ALR 257 Commonwealth v Oliver [19620 HCA 38; (1962) 107 CLR 353 Duncans Holdings Ltd v Cross (1997) 76 IR 261 Endeavour Coal Pty Ltd v Construction, Forestry, Mining and Energy Union (New South Wales Branch) [2007] NSWIRComm 70; (2007) 161 IR 96 George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWIRComm 23 Re State Rail Authority Firefighters Award 2001 [2002] NSWIRComm 159; (2002) 122 IR 13 RJ Enterprises (Aust) Pty Ltd v Booth Transport Pty Ltd [2012] NSWIRComm 4; (2012) 221 IR 64 Short v FW Hercus Pty Ltd (1993) 40 FCR 511; (1993) 46 IR 128 State Transit Authority of New South Wales v Australian Rail, Tram and Bus Industry Union, New South Wales Branch, Bus and Tram Division [2014] NSWIRComm 41 Transport Workers' Union of New South Wales v Linfox Australia Pty Limited [2014] NSWIRComm 1013 Category: Principal judgment Parties: Transport Workers' Union of New South Wales (Appellant) Linfox Pty Limited (Respondent) Representation: M Gibian of counsel (Appellant) J Murphy of counsel (Respondent) Transport Workers' Union of New South Wales (Appellant) McCabes Lawyers (Respondent) File Number(s): IRC 536 of 2014 Decision under appeal Citation: [2014] NSWIRComm 1013 Date of Decision: 2014-06-12 00:00:00 Before: Newall C File Number(s): IRC 713 of 2013 DECISION OF THE COMMISSION 1The Transport Workers' Union of New South Wales ("TWU" or "appellant") has sought leave to appeal and, if leave is granted, to appeal from a decision of Newall C in Transport Workers' Union of New South Wales v Linfox Australia Pty Limited [2014] NSWIRComm 1013. The Commissioner determined that a fatigue break (also referred to as a rest break) that was mandatory under State law was not time during which a contract carrier was necessarily engaged performing a contract of carriage and, therefore, was an unpaid break under the terms of the Transport Industry - General Carriers Contract Determination ("the Determination"). Background 2At first instance, the TWU had notified a dispute under s 332 of the Industrial Relations Act 1996 ("the Act"). The dispute concerned an allegation that 10 contract carriers engaged by Linfox Australia Pty Ltd ("Linfox" or "respondent") at its yard at Chullora had been underpaid under the Determination. 3The TWU explained that the Determination had been varied with effect from 10 September 2012 so as to increase the rates required to be paid to contract carriers performing work under the Determination. The TWU contended that Linfox failed to pass on the increase to contract carriers it engaged until 21 May 2013, resulting in underpayments to those carriers in the period from 10 September 2012 to 21 May 2013. At first instance, Linfox acknowledged that it had failed to pay the increased rates provided for in the Determination. 4However, Linfox asserted that it was entitled to offset against its obligation to pay the increased rates set out in the Determination, amounts that it claimed were overpaid to carriers with respect to fatigue breaks. Linfox claimed that it had inadvertently paid the contract carriers with respect to time spent engaged in rest breaks required to be taken under the Road Transport (Vehicle and Driver Management) Regulation 2005 ("the Regulation") that were, according to Linfox, to be properly regarded as unpaid breaks (the Regulation has since been repealed, but it applied during the relevant period). 5It will be seen that the only issue determined at first instance was whether a fatigue break was a paid or unpaid break. Newall C held it was unpaid for reasons we will later explain. The only issue on appeal is whether Newall C erred in that respect. The issue of offsetting at first instance was, at the TWU's request, left for the parties to determine after the Commissioner adjudicated on the fatigue break issue. Neither party sought to have offsetting made an issue on the appeal. Agreed facts 6There was no factual dispute between the parties at first instance and the matter proceeded primarily by way of an agreed statement of facts. The Commissioner helpfully set out the relevant facts as follows: [12] The respondent relevantly engaged 10 drivers as contract carriers within the meaning of section 309 of the Act. The drivers were engaged pursuant to the Determination. [13] The rates in the Determination were varied by consent on 28 August 2012 with an effective date of 10 September 2012. [14] The respondent had an obligation to increase the rates of the drivers in accordance with the variation. It failed to increase the rates of the drivers on 10 September 2012. It did increase the rates of the drivers on 21 May 2013. It did not back pay the drivers for the failure to increase their rates on 10 September 2012. [15] In the period during which the increased rates were not passed on, the respondent paid for time spent by the drivers in taking fatigue breaks. These fatigue breaks were taken in accordance with the requirements of the Road Transport (Vehicle and Driver Management) Regulation 2005. ('the regulation'). [16] As of 5 April 2013, the respondent ceased paying for the time spent on fatigue breaks. Relevant provisions of the Determination 7As Newall C observed at [44]: [44] A contract driver must be paid, while driving, the rate of remuneration per kilometre provided at Schedule 1 to the Determination as being the running rate applicable to the contract driver's vehicle for the contract distance; Determination, subclause 16(1)(a); and, while standing, the rate of remuneration provided in Schedule 1 as the standing hourly rate applicable to the driver's vehicle for the contract time calculated to the nearest half hour; Determination, subclause 16(1)(b). There is no obligation to pay a driver other than on these two bases. 8As the Commissioner observed at [45], it was the second of the two bases for payment that was at issue, namely, whether a fatigue break could be regarded as contract time. 9"Contract time" is defined in cl 1 of the Determination as follows: "Contract time" means in relation to a contract of carriage the time during which the Contract Carrier has necessarily been engaged performing the contract of carriage, namely, the time necessarily occupied in travelling from the starting place to a place of delivery together with any time necessarily occupied in returning to the starting place, or, subject to the Contract Carrier observing any instructions given by the Principal Contractor under clause 6(26) in the event that the Principal Contractor does not require the Contract Carrier to return to the starting place, any time which in the opinion of the Principal Contractor the Contract Carrier would have been necessarily occupied in travelling if he had returned to the starting place but does not include the time of a delay (other than a delay for which the Contract Carrier is not reasonably responsible), the time of a delay not promptly notified by telephone or radio to the Principal Contractor, the time lost because of breakdowns or accidents or the time taken by the Contract Carrier for meal breaks or any other interruption to work. 10The only "meal break" described in the Determination is a lunch break at cl 5: 5. Lunch Break Each Contract Carrier shall take a half hour lunch break on each day he is performing work for a Principal Contractor. 11Other definitions in cl 1of the Determination referred to in the course of argument were the following: "Contract Carrier" means a person who enters a contract of carriage. "Contract of carriage" has the meaning given to that expression by the Act. "Principal Contractor" means a person (including, without limiting the generality of the foregoing, a road transport contractor, a customs or other agent or a manufacturer, wholesaler, retailer or distributor of goods) who enters into a contract (other than a contract of employment) with another person for the transportation of goods by that person. "Work" means the transportation of goods by a Contract Carrier under a contract of carriage with a Principal Contractor. Section 309 of the Act provides a lengthy definition of "contract of carriage". However, there was no dispute that the carriers that are the subject of these proceedings were parties to contracts of carriage, so the only part of the Act's definition that is relevant is the opening words of the section: (1) For the purposes of this Chapter, a contract of carriage is a contract (whether written or oral or partly written and partly oral) for the transportation of goods by means of a motor vehicle or bicycle in the course of a business of transporting goods of that kind by motor vehicle or bicycle... 12One further provision we should mention is cl 16(1) of the Determination. Clause 16(1)(b) refers to "contract time" and this was a provision under consideration by the Full Bench in RJ Enterprises (Aust) Pty Ltd v Booth Transport Pty Ltd [2012] NSWIRComm 4; (2012) 221 IR 64, which we shall later refer to. The provision is as follows: 16. Remuneration (1) The Principal Contractor shall, subject to clause 17 and subject to any adjustments and deductions provided for in this determination pay to a Contract Carrier for work commenced after the date of commencement of this determination - (a) The rate of remuneration per kilometre in Schedule 1 being the running rate applicable to the Contract Carrier's vehicle for the contract distance. (b) The rate of remuneration in Schedule 1 at the standing hourly rate applicable to the Contract Carrier's vehicle for the contract time calculated to the nearest half hour. (c) Any additional rate prescribed by Schedule 3. Relevant provisions of the Regulation 13As Newall C observed at [39], the contract carriers that are the subject of these proceedings are drivers of heavy vehicles and, accordingly, at the relevant time, they were required to comply with the provisions of the Road Transport (Vehicle and Driver Management) Act 2005 ("RT Act" - this Act and the Regulation made under it were repealed by s 4(1)(a) of the Heavy Vehicle (Adoption of National Law) Amendment Act 2013 with effect from 10 February 2014). Section 11B(2)(d) of the RT Act provided for regulations to be made governing periods that drivers of heavy vehicles spend working and resting. 14The Regulation defined "work time" in r 57: 57 What is "work time" (1) A driver's work time is: (a) the time that the driver spends driving a regulated heavy vehicle, whether or not it is on a road or road related area, and (b) any other time that the driver spends doing tasks that are related to the operation of a regulated heavy vehicle, including (but not limited to) the following: (i) loading or unloading the vehicle, (ii) inspecting, servicing or repairing the vehicle, (iii) inspecting or attending to the load on the vehicle, (iv) attending to the passengers of a bus, (v) cleaning or refuelling the vehicle, (vi) performing marketing tasks in relation to the operation of the vehicle, (vii) helping with, or supervising, an activity mentioned in subparagraphs (i)-(vi), (viii) recording information, or completing a document, in accordance with this Part or otherwise, in relation to the operation of the vehicle. (2) In this clause: driving includes: (a) being in the driver's seat of a regulated heavy vehicle while its engine is running, and (b) being in a regulated heavy vehicle for the purpose of instructing or supervising the driver of the vehicle. marketing tasks includes: (a) arranging for the transport of passengers or goods, and (b) canvassing for orders for the transport of passengers or goods. 15The definition of "rest time" was to be found in r 58: 58 What is "rest time" Rest time of a driver is time that is not work time of the driver. 16Regulation 64 contained provisions requiring carriers to take rest breaks after certain periods of work time. So, for example, in a total period of eight hours a carrier was not to work more than 7.5 hours without rest time and the minimum rest time was 30 minutes to be taken in blocks of 15 continuous minutes. The keeping of records was mandatory. 17In the course of hearing the appeal the Full Bench sought supplementary submissions from the parties on the question of whether there was any conflict between the Determination and the Regulation. Both parties submitted there was no conflict. Essentially, both parties agreed that the Regulation relevantly dealt with the taking of fatigue or rest breaks whereas the Determination relevantly deals with the question of what is contract time (and whether a fatigue break is contract time); hence no conflict. We accept no relevant conflict arises. The Regulation does not deal with the question of payment for rest breaks at all. No direct or indirect inconsistency arises. 18As we noted, the RT Act and the Regulation made under it were repealed. In their place is the Heavy Vehicle National Law (NSW). Section 221 of that National Law defines "work": work, in relation to a fatigue-regulated heavy vehicle, means- (a) drive a fatigue-regulated heavy vehicle; or (b) instruct another person to drive, or supervise another person driving, a fatigue-regulated heavy vehicle; or (c) perform another task relating to the use of a fatigue-regulated heavy vehicle, including, for example- (i) load things onto, or unload things from, the heavy vehicle; and (ii) inspect, service or repair the heavy vehicle; and (iii) inspect or attend to a load on the heavy vehicle; and (iv) if the heavy vehicle is a bus, attend to passengers on the bus; and (v) clean or refuel the heavy vehicle; and (vi) perform marketing tasks in relation to the use of the vehicle; and Examples for the purposes of subparagraph (vi)- · arranging for the transport of goods or passengers by the heavy vehicle · canvassing for orders for the transport of goods or passengers by the heavy vehicle (vii) help another person to perform, or supervise another person performing, a task mentioned in any of subparagraphs (i) to (vi); and (viii) record information or complete a document, as required under this Law, a corresponding fatigue law or otherwise, in relation to the use of the vehicle; or (d) occupy the driver's seat of a fatigue-regulated heavy vehicle while its engine is running. Decision at first instance 19Newall C, correctly in our view, approached his task as one of construction of an industrial instrument to be addressed in accordance with the power to do so under s 175 of the Act. 20The issue for resolution was defined by Newall C at [47] and [58]: [47] The question before the Commission crystallises to this: are the fatigue breaks properly part of 'contract time', which is paid time, or are they not? ... [58] The question for resolution set out above may then more accurately be articulated in this way: are the fatigue breaks prescribed by the regulation excluded from the definition of 'contract time' because they fall under the words contained in that definition, 'meal breaks or any other interruption to work'? 21The Commissioner referred to cl 5 of the Determination dealing with lunch breaks, which are unpaid. He then went on to state at [73]-[78], which encapsulates the ratio of his decision: [73] The meal break is distinguishable from all the other things the carrier must do in this one significant way, however; during his lunch break the driver is not required to work, whether it be driving, loading, cleaning, refuelling, inspecting, marketing or recording information. He is free to have lunch, go to sleep, read a newspaper, as he wishes. He cannot be asked to work. [74] The meal break is accordingly, in the words of the Determination, an 'interruption to work'. [75] In my view the compulsory fatigue breaks are of precisely the same nature as the meal break and must be treated in the same way under the Determination. [76] In precisely the same way as the lunch break, a driver must take a fatigue break and cannot complete the contract of carriage without so doing. The taking of a fatigue break is necessarily something 'which the carrier is required to carry out to enable the goods to be transported.' [77] However, like the lunch break, the fatigue break is distinguishable from all the other things the carrier must do to carry out a contract of carriage in that during his fatigue break the driver is simply not required to work, whether it be driving, loading, cleaning, refuelling, inspecting, marketing or recording information. He is necessarily relieved from the obligation to carry out any work; indeed he cannot be asked to carry out work. [78] The fatigue break is accordingly an 'interruption to work' as those words are used in the Determination. An 'Interruption to work' is not, according to Clause 1 of the Determination, to be contract time and is not to be paid time. 22At [88] Newall C concluded: [88] In my view, the proper interpretation of Clause 1 of the Determination is that the phrase 'other interruptions (sic) 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. Appeal grounds 23There were seven grounds of appeal: (1)The Commissioner erred in finding that fatigue breaks are not required to be paid under the Determination. (2)The Commissioner erred in his construction of the definition of "contract time" in the Determination. (3)The Commissioner failed to consider the definition of "work" in the determination in the context of the definition of "contract time". (4)The Commissioner erred in his interpretation of the terms "interruption to work" as contained in the definition of "contract time". (5)The Commissioner erred in applying and or considering the definition of "work time" from the Road Transport (Vehicle and Driver Management) Regulation 2005 in the context of "work" in the Determination. (6)The Commissioner erred by likening the "lunch break" to the fatigue break. (7)The Commissioner erred by misapplying the reasoning of the Full Bench of the Industrial Court in RJ Enterprises (Aust) Pty Ltd v Booth Transport Pty Ltd [2012] NSWIRComm 4 to the concept of fatigue breaks. Leave to appeal 24The appellant submitted there were a number of reasons why leave to appeal should be granted. These included: the large number of contract carriers covered by the Determination who would be affected by the appeal outcome; that many small businesses would also be affected; that payment of fatigue breaks was a matter of general importance in the legislative scheme designed to ensure that drivers were not fatigued whilst operating heavy vehicles; and an error in the determination of the entitlement to payment for periods of time spent on fatigue breaks would affect the transport industry significantly, as well as damaging the financial interests of persons who were not parties to the proceedings at first instance. 25The respondent did not oppose leave being granted. We propose to grant leave. Case for the appellant 26The appellant referred to the decision in RJ Enterprises, where the Full Bench examined the definitions of "contract distance" and "contract time" in the Determination. The Full Bench stated at [52]-[54]: [52] We shall consider first the definition of contract distance. As we have previously observed, the definition applies "in relation to" a contract of carriage. The definition initially describes the contract distance by reference to "each kilometre necessarily travelled by the Contract Carrier in performing the contract of carriage." There then follows another description, preceded by the word "namely". [53] The parties' submissions differed as to the approach to construction of the definition by reference to the use of "namely". The TWU submitted that even though "namely" is defined as being "to wit", this did not indicate that what follows after the use of that word is a specific description that is intended to cut down on the earlier general words used. Otherwise: [I]t renders the opening part otiose; that is, there would be no point in having the general descriptions if it was followed by a specific description which was intended to mean precisely the same thing. [54] We prefer to adopt the definition of "namely" found in the online Oxford English Dictionary where that word is used as an adverb. The definition is "Introducing more detailed information or a particular example; that is to say, to be specific; to wit." (In the context of both definitions although "namely" refers respectively to distance and to time, nevertheless in context these are references to distance travelled and time occupied. Accordingly, the word may be considered to be used as an adverb. Seen in this way, the words in each definition that follow "namely" are descriptive of the words that precede it. However, those descriptive words are intended to describe distance necessarily travelled by the Contract Carrier in performing the contract of carriage and time during which the Contract Carrier has necessarily been engaged in performing the contract of carriage, respectively. 27As the appellant correctly observed, the Full Bench at [61] adopted the same approach to the definition of "contract time" in clause 16.1(b) of the Determination. That is, the essential part of the definition was that "contract time" was "time during which the Contract Carrier has necessarily been engaged performing the contract of carriage": [61] We now come to consider contract time. The use of the word "namely" has the same meaning as when used in connection with contract distance. Accordingly, what must be considered in relation to a contract of carriage is the time during which the Contract Carrier has necessarily been engaged in performing it. This will be the time necessarily occupied in travelling from the starting place to a place of delivery, being, again, any place of delivery, together with any time necessarily occupied in returning to the starting place. This definition also focuses attention on the performance of the contract of carriage. Such a contract has as its purpose the transportation of goods, but the time during which a carrier will be necessarily so engaged must accommodate everything which the carrier is required to carry out to enable the goods to be transported. This will include, where applicable, loading and unloading. 28The appellant submitted that Newall C erroneously regarded the central words of the definition of "contract time" as superfluous: The Commissioner read the definition as reading no more than that "contract time" does not include "the time of a delay ... or the time taken by the Contract Carrier for meal breaks or any other interruption to work." That approach diverted attention from the true question, that is, what was the "time during which the Contract Carrier has necessarily been engaged performing the contract of carriage." 29The appellant submitted the question to be asked was whether a particular period was "time during which a carrier will be necessarily so engaged must accommodate everything which the carrier is required to carry out to enable the goods to be transported." 30The appellant further submitted that rest time required to be afforded by the Regulation was time during which a Contract Carrier was necessarily engaged in order to enable the goods to be transported. 31In addressing what the TWU claimed was the central feature of the Commissioner's reasoning, it was submitted Newall C equated rest time required to be afforded by the Regulation with the provision made for a lunch break in cl 5 of the Determination. It was submitted that: The periods are not equivalent. A lunch break is not a period which is in itself essential to the performance of the transportation task, but an advent of the Contract Determination itself. In contrast, the requirement to take rest time imposed by the Regulation is statutory requirement attaching to the transport task itself and something that the contract carrier is required to carry out to enable the goods to be transported. 32To the extent that it is necessary to determine whether rest time required by the Regulation constituted an interruption to "work", the appellant submitted there was no basis for applying a narrow concept of "work". The concept of "work" is a broad one: "They also serve who only stand and wait": Automatic Fire Sprinklers v Watson [1946] HCA 25; (1946) 72 CLR 435 at 466; and "work" can encompass time spent having lunch on the employer's premises: Commonwealth v Oliver [19620 HCA 38; (1962) 107 CLR 353 at 363. It could also encompass a break in the nature of a "crib break": Duncans Holdings Ltd v Cross (1997) 76 IR 261 at 263-264; Australian Workers Union v Department of Primary Industries and Resources SA (2007) 168 IR 249 at [37]-[38]. 33The TWU noted the definition of "work" in cl 1 of the Determination and submitted that the concept of work for the purposes of the Determination was not limited to the actual transportation of goods. A contract of carriage "extends beyond the mere movement of goods after they have been loaded until arriving at the place of delivery": RJ Enterprises at [65]. Counsel for the TWU submitted that simply because a carrier was required to cease the movement of the vehicle during rest time did not mean the carrier could not be said to be engaged in work. 34Finally, it was submitted that: The Commissioner assumed that the concept of "work" in the Determination should be interpreted in precisely the same manner in the Determination as in the Regulation. That was unwarranted. The Contract Determination was made in 1984 and self-evidently did not contemplate regulatory provisions enacted in 2005. The concept of "work time" in the Regulation is directed at "time that the driver spend driving" or time spent "doing tasks". There is no reason that the concept of "work" is so limited generally or in the context of the Workplace Determination. Case for the respondent 35Linfox submitted that the issue on appeal was whether the Commissioner erred in determining that a mandated fatigue break required by the Regulation did not count as "contract time" under the Determination, because such fatigue breaks were included in the phrase "any other interruption to work" within the exclusion in the definition of "contract time". Linfox submitted there was no error. 36As to the appellant's reliance on RJ Enterprises, the respondent contended that decision was not on point; that the Full Bench's consideration of the definition of "contract time" in that case occurred in the context of a dispute about payment for travelling empty. It was submitted the particular passage cited by the TWU appeared in that part of the decision where the Full Bench was considering what the carrier was required to carry out to enable goods to be transported, such as the loading and unloading of goods . This was not a case where any consideration was given to the exclusions in the definition of "contract time", such as "the time taken... for meal breaks or any other interruption to work." 37The respondent referred to the appellant's submission that "contract time is the time spent satisfying the obligations of the contract of carriage, which includes the obligations imposed by the Determination". Linfox asserted that this submission ignored the exclusions in the definition of "contract time", such as meal breaks, which were an obligation imposed by the Determination, and any other interruption to work, such as fatigue breaks required to be taken by the Regulation. Consideration Award interpretation 38Section 175 of the Act provides: 175 Powers of interpretation The Commission may, for the purpose of exercising its functions in connection with a matter before it, determine any question concerning the interpretation, application or operation of any relevant law or instrument (including the industrial relations legislation and any industrial instrument). 39In applying the provisions of s 175, the Commission must have regard to the established principles governing the interpretation of industrial instruments. Newall C did so: see [49]-[54]. 40The principles of award interpretation have been identified in a number of recent decisions of the Commission. In that respect, we refer in particular to State Transit Authority of New South Wales v Australian Rail, Tram and Bus Industry Union, New South Wales Branch, Bus and Tram Division [2014] NSWIRComm 41 at [26]-[31] in which the Full Bench adopted the analysis and the principles and conclusions that Walton J, President drew from relevant authorities in his Honour's decision in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWIRComm 23. We do likewise. 41Principles relevant to our consideration in this matter include the following: (1)Generally speaking, awards are to be interpreted as any other enactment is interpreted: George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504. (2)The process of construction must begin with a textual analysis of the words of the provision, that is, a consideration of the ordinary and grammatical meaning of the words: City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at [53]; Commission of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 293 ALR 257 at [39]. (3)Regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to "... the entire document of which it is a part or to other documents with which there is an association". It may also include "... ideas that gave rise to an expression in a document from which it has been taken": City of Wanneroo per French J, quoting from Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518; (1993) 46 IR 128 at 134 (Burchett J); Australian Municipal, Administrative, Clerical and Services Union v Treasurer of Commonwealth (1998) 82 FCR 175; (1998) 80 IR 345 (Marshall J). (4)In order to ascertain the meaning of a provision of an award which is susceptible to more than one meaning, even after the consideration of the immediate context of a provision, recourse may be had to the circumstances surrounding the making of an award in order to see what the circumstances were with reference to which the words of the award provision were used. Within those parameters, reference may be had to a mutually known factual matrix present at the making of the award, including the conduct of prior negotiations, the forming of an agreement and, more generally, the history of the provision. Evidence is not admissible to ascertain the subjective intentions of the parties. Nor is evidence of their conduct subsequent to the commencement of the instrument admissible: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury at [128]. (5)Provisions in awards must be construed reasonably and realistically, "having regard to their purposes and objectives". It is rarely appropriate to take an overly strict or literal approach and, in fact, there is a tradition of adopting a generous construction where industrial awards are concerned (George A Bond & Co at 503 to 504; Re State Rail Authority Firefighters Award 2001 [2002] NSWIRComm 159; (2002) 122 IR 13 at [22]-[24]; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426 at [57] and Endeavour Coal Pty Ltd v Construction, Forestry, Mining and Energy Union (New South Wales Branch) [2007] NSWIRComm 70; (2007) 161 IR 96 at [44]). General observations 42As we stated earlier, the TWU's position was that the question of whether a fatigue break was to be paid was to be determined by having regard to the "central words" of the definition, and asking whether a fatigue break was "time during which the Contract Carrier has necessarily been engaged performing the contract of carriage". 43There was no issue that the carriers were required to take the rest breaks prescribed by the Regulation. They were also required to do so under l cl 6(2) of the Determination, which provides that the contract carrier shall: Comply with all Acts, Ordinances, Regulations and By-laws relating to the registration, third party insurance and general operation of the vehicle within New South Wales. 44There was no evidence of the terms of any of the contracts of carriage and the TWU relied solely on the words of the Determination to contend there was an obligation on the Principal Contractor to pay for mandatory fatigue breaks. What is contract time? 45The principal provision of the Determination with which we are concerned is the definition of "contract time" in cl 1. The definition provides one of the two main bases under the Determination for calculating what a carrier is to be paid. The other basis is the definition of "contract distance". 46It is clear from the decision of the Full Bench in RJ Enterprises that the time during which a contract carrier will be necessarily engaged in performing the contract of carriage "must accommodate everything which the carrier is required to carry out to enable the goods to be transported": at [61]. The Full Bench stated that "a contract of carriage extends beyond the mere movement of the goods after they have been loaded until arriving at the place of delivery": at [65]. 47RJ Enterprises was concerned, inter alia, with whether the time a carrier spent travelling empty could be properly regarded as time spent engaged in a contract of carriage and whether waiting for goods to be loaded/unloaded onto the contract carrier's vehicle by other persons could be regarded as contract time. Both questions were answered in the affirmative. 48RJ Enterprises was not concerned with whether the taking of a mandatory fatigue break could be regarded as time engaged in performing a contract of carriage, but the decision does tend to support the appellant's contention that a fatigue break is time during which the contract carrier has necessarily been engaged performing the contract of carriage. If a contract of carriage extends beyond the mere movement of goods and encompasses "everything which the carrier is required to carry out to enable the goods to be transported", a fatigue break required by law to be observed by the contract carrier is time during which the carrier has necessarily been engaged performing the contract of carriage. 49If there were no other considerations relating to the definition of "contract time" under the Determination, our view would be that a fatigue break that a contract carrier is lawfully required to observe in the course of performing the contract of carriage would be contract time. That is to say, it would be "time necessarily occupied in travelling from the starting place to a place of delivery together with any time necessarily occupied in returning to the starting place...." However, there are further considerations and these relate to time that according to the definition is not to be regarded as contract time. 50Under the definition of "contract time" the following circumstances are not to be regarded as contract time: * the time of a delay (other than a delay for which the contract carrier is not reasonably responsible); or * the time of a delay not promptly notified by telephone or radio to the Principal Contractor; or * the time lost because of breakdowns or accidents; or * the time taken by the contract carrier for meal breaks; or * any other interruption to work. 51The respondent, of course, relies on the last dot point - "any other interruption to work" - to contend that a fatigue break is not contract time. 52In considering whether the exclusions constitute a genus that might assist in determining the meaning of the general words "any other interruption to work", the first exclusion is a delay in performing the contract of carriage other than a delay for which the carrier is not reasonably responsible. There is some ambiguity in the second exclusion, but it appears that if the carrier does not promptly notify a delay, regardless of whether the carrier is reasonably responsible or not for the delay, the period of the delay will not be regarded as contract time. The third exclusion, we were informed, relates to an accident or breakdown involving the carrier's vehicle. So that if the carrier is involved in an accident or has a breakdown, regardless of whether any fault lies with the carrier, the time lost is not contract time. 53The fourth exclusion relates to meal breaks. Any meal break taken by the carrier, including the half hour lunch break prescribed by cl 5 of the Determination, is not contract time. 54It seems then that: a delay for which the carrier is not reasonably responsible will be regarded as contract time provided the relevant notification is made; a delay for which the carrier is reasonably responsible will not count as contract time; time lost because of an accident or breakdown is deemed to be something the carrier is reasonably responsible for and will not count as contract time; and any meal break, including the prescribed lunch break, will not count as contract time. There is no other reference in the Determination to "meal break" other than in the definition of "contract time". A lunch break as prescribed by cl 5 would appear to come within the notion of a meal break. Presumably, the use of the term "meal break" in the definition is meant to cover the possibility of a contract carrier working such hours it is necessary to take breaks for meals in addition to a lunch break. 55It is difficult to discern any genus in the exclusions that might inform the meaning of "any other interruption to work". The exclusion of meal breaks might be regarded as similar in concept to a rest break, but on its own it cannot establish a genus for the purpose of the ejusdem generis rule. 56However, there is one thing all the exclusions have in common. By virtue of the phrase "any other interruption to work" the delays and times lost described in the definition of "contract time" are to be regarded as interruptions to work. 57It is noteworthy that "contract time" is not based on the notion of time worked, but rather on the concept of "time necessarily occupied in travelling from the starting place to a place of delivery together with any time necessarily occupied in returning to the starting place...." However, the exclusions in the definition do rely on time not worked. That is, if the work of the contract carrier is interrupted by delays for which the carrier is reasonably responsible or by the taking of a meal break or by "any other interruption to work", the period of time over which the interruption occurs is not contract time. What is "work"? 58"Work" is defined in the Determination as "the transportation of goods by a Contract Carrier under a contract of carriage with a Principal Contractor." We do not consider that definition means that "work" is limited to the actual transportation of goods by means of a vehicle. That would mean, for instance, the loading and unloading of goods was not to be regarded as work. This would be inconsistent with the approach taken by the Full Bench in RJ Enterprises. 59However, whilst there would be a significant overlap, we do not consider the word "work" is synonymous with "contract time". A carrier might encounter a delay in performing the contract of carriage for which the carrier is not reasonably responsible and for the period of the delay is completely idle. The delay will be contract time, but it could not, as a matter of ordinary language, be regarded as a period of work nor is it an interruption to work under the definition of "contract time" because a delay for which the carrier is not reasonably responsible is not to be regarded as such an interruption. 60The word "work" is used throughout the Determination. For example, the definition of "Starting place" is the "place at which the contract carrier is instructed by the Principal Contractor to report ready to commence work". See also cl 4 Uniforms, cl 5 Lunch Break and cl 6 Obligations of the Contract Carrier. 61The meaning to be given to the word "work", in our opinion, is the performance of physical and mental labour by the contract carrier in undertaking the transportation of goods under a contract of carriage with a Principal Contractor. "Work" would include the driving task and all of the tasks related to the operation of the vehicle and the transportation of goods and would include loading and unloading and the supervision thereof (see cl 6(5)), ensuring the load is secured (see cl 6(5)), completing freight notes and work sheets and other documents reasonably required by the Principal Contractor (see cl 6(20)). "Work" would include everything which the carrier is required to carry out through physical and mental labour to enable the goods to be transported under the contract of carriage (see RJ Enterprises at [61]). 62We note the definition of "work" in the Heavy Vehicle National Law (NSW). To the extent the tasks listed are relevant to the transportation of goods under a contract of carriage those tasks would fall within the definition of "work" under the Determination. 63The appellant submitted that to the extent it was necessary to determine whether rest time required by the Regulation constituted an interruption to "work", there was no basis for applying a narrow concept of "work"; that the concept of "work" was a broad one. Several cases were relied on. The first was the decision of Dixon J in Automatic Fire Sprinklers where his Honour stated at 466, "They also serve who only stand and wait." However that statement was made immediately following this statement: Some difficulty has been felt in saying what is the service which carries wages. The wages are incident to the subsisting relationship of master and servant. A master who sends his servant upon a holiday upon full pay can be sued for wages under the contract, although not on a common count for work and labour done. 64Under the definition of "contract time" where a delay occurs it is to be regarded as an interruption to work and not paid for because it is not contract time. The dictum of Dixon J could not apply in that circumstance. If the contract carrier is not responsible for the delay that is to be regarded as contract time and not an interruption to work. It is that circumstance in which contract carriers are entitled to payment because it might be said "They also serve who only stand and wait". His Honour's dictum, however, is such a broad generalisation that, with respect, it does not assist in determining whether a fatigue break is contract time or an interruption to work. 65The next case relied upon was Commonwealth v Oliver. The case concerned a claim for compensation under s 9 of the Commonwealth Employees' Compensation Act 1930 because the claimant was injured during lunch-time playing cricket on the employer's premises. The question was whether the employee was injured during the course of his employment. At first instance the Court found in the claimant's favour. The appeal by the Commonwealth in the High Court was dismissed. 66The TWU referred to what Menzies J said at 363: This and other authorities, of which Blovelt v. Sawyer (1904) 1 KB 271; Knight v. Howard Wall Ltd (1938) 4 All ER 667 and Armstrong, Whitworth & Co. v. Redford (1920) AC 757 are examples, do seem to me to establish that a worker who is having lunch on his employer's premises with his employer's sanction is, save in exceptional cases, "doing something which he was reasonably required, expected or authorized to do in order to carry out his duties", to use the words of Dixon J. in Humphrey Earl Ltd. v. Speechley [1951] HCA 75; (1951) 84 CLR 126, at p 133 to describe when an accident which happens in an interval between work occurs in the course of the worker's employment. If this is to be said about taking lunch, why should it not also be said about taking a walk, dozing in the sun, or playing a game of table tennis or cricket during a break which is provided as a respite from work and not merely to enable the worker to have something to eat and drink? 67Commonwealth v Oliver said nothing about whether "an interval between work" was to be regarded as working time and, therefore, paid time. It was a case concerned with whether or not an injury sustained during a lunch break was an injury sustained during the course of employment for the purposes of determining a workers compensation claim. 68The other two cases relied upon, Duncan's Holdings and Australian Workers Union v Department of Primary Industries and Resources SA, involved a consideration of "crib breaks". It is sufficient to refer to what Wilcox J said in Duncan's Holdings at 263-264: Policy reasons support the view that the work done by the present respondents fell within cl 30(h)(ii) rather than cl 30(h)(i). Where cl 30(h)(i) applies, the employee is entitled to a one hour, unpaid "lunch break". Where cl 30(h)(ii) applies, a one hour meal break is not provided, merely a 20 minute crib break. The difference between the two breaks extends beyond duration. A "lunch break" is a period of time during which employees are free, not only to eat a meal, but to leave their immediate workplace - in this case the boiler room - and socialise with other workers elsewhere in the establishment, or even leave the employer's premises altogether on business of their own. A "crib break", in contrast, is a period during which the employee may "down tools" and eat but must remain in the immediate workplace and available in case of any emergency: see, generally, a case involving an earlier version of the Timber Industry Award, Durnford v Allen Taylor and Co Ltd (1990) 34 IR 423 at 428. Clause 30(h)(i) provides for an unpaid one hour lunch break. No doubt that is because the employee is then off-duty. In contrast, the crib break provided by cl 30(d)(ii) is paid time; that is because the employee remains on duty throughout. When these concepts are considered, it will readily be seen it would be incongruous to allow a one hour unpaid lunch break to an attendant who is required constantly to monitor a boiler. Acting conscientiously, the employee would not feel able to take the break. On the other hand, there would be no difficulty about the employee taking a short break to eat a meal, while remaining in, or close to, the boiler room. The concept of "crib break" perfectly fits the situation's requirements. 69The peculiar features of a "crib break" which result in such breaks being paid breaks do not provide any foundation for a conclusion that a fatigue break constitutes work. On the contrary, it does not seem to us, having regard to the Regulation, that a contract carrier taking a fatigue break "remains on duty". At least, there is no evidence to that effect. 70Of course, the question is not really whether a fatigue break constitutes "work". The question is whether it constitutes "contract time" or it constitutes an interruption to work. Conclusion 71Our opinion is that a mandatory fatigue break is "contract time" under the definition in the Determination, but that it also constitutes an "interruption to work". "Rest time" under the Regulation is time that is not work time of the driver. That is, the driver is not driving and is not performing any task related to the operation of the vehicle. During rest time the driver is not working. That is the driver is not performing any physical or mental labour in connection with the transportation of goods under a contract of carriage. Therefore, as a matter of ordinary language, rest time (or a fatigue break) is an interruption to work. There does not appear to us to be any basis for distinguishing a lunch break from a fatigue break. A lunch break, being a meal break in our opinion, would ordinarily be regarded as "contract time". However, it is apparent from the definition of "contract time" that a meal break is to be regarded as an interruption to work that is not included in contract time. Similarly, a fatigue break is an interruption to work and not included in contract time. Orders 72The Full Bench makes the following orders: (1)Leave to appeal is granted. (2)The appeal is dismissed. (3)The decision of Newall C at [88] of the Commissioner's reasons for decision is confirmed. ********** 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: 05 December 2014