2013 WAIRC 00218
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION : 2013 WAIRC 00218

CORAM
: INDUSTRIAL MAGISTRATE G. CICCHINI

HEARD
:
WEDNESDAY, 13 FEBRUARY 2013, WEDNESDAY, 27 FEBRUARY 2013, THURSDAY, 28 FEBRUARY 2013

DELIVERED : THURSDAY, 11 APRIL 2013

FILE NO. : M 25 OF 2012

BETWEEN
:
TRANSPORT WORKERS' UNION OF AUSTRALIA
CLAIMANT
AND

CONVENIENT CARTAGE PTY LTD
RESPONDENT

Catchwords : Alleged breach of Road Transport (Long Distance Operations) Award 2010; Alleged failure to comply with Superannuation Guarantee (Adminstration) Act 1992; Rates of pay; Whether payment by trip rate permissable; Whether Respondent had an accredited Fatigue Management Plan.
Legislation : Fair Work Act 2009
Superannuation Guarantee (Administration) Act 1992
Instruments : Road Transport (Long Distance Operations) Award 2010
Result : Claim proven
CLAIMANT : MR ADAM DZIECIOL, OF COUNSEL, APPEARED FOR THE CLAIMANT

RESPONDENT : MS NATALIE RASCHILLA, A DIRECTOR OF THE RESPONDENT, REPRESENTED THE RESPONDENT






REASONS FOR DECISION
Background
1 During 2011 the Respondent employed Mr Thomas Scott as a casual truck driver. Mr Scott resigned from that position on or about 24 December 2011. The parties agree that the Road Transport (Long Distance Operations) Award 2010 (the Award) governed Mr Scott’s employment.
2 Mr Scott’s main duty in that employment was that of line haul driving between Perth and the Birla Nifty mine site situated 450 kilometres east of Port Hedland. He also performed other duties. They included some yard duties, the driving of a prime mover with trailer in and around Perth and the taking of loaded trailers to Wubin where he would pick up empty trailers and return them to the Respondent’s yard in Maddington.
3 When driving to the Birla Nifty mine site he would leave the Respondent’s yard with two loaded trailers and make his way to Wubin where he would pick up a third loaded trailer. From there he would drive to the mine site pulling three loaded trailers. On his return trip he would usually load the third empty trailer on one of the other empty trailers and drive back to Perth in a two trailer configuration.
The Claim
4 Mr Scott claims that between 1 July 2011 and 24 December 2011 the Respondent underpaid him. His Union, the Claimant, has brought this claim in order to recover $23,310.93 allegedly owed to Mr Scott. The Claimant alleges also that the Respondent contravened the Superannuation Guarantee (Administration) Act 1992 by failing to pay Mr Scott’s superannuation entitlements, but at trial abandoned that part of its claim.
The Award
5 As indicated earlier there is no dispute about the fact that Mr Scott’s employment was at all material times governed by the Award. Clause 4 - Coverage, at Clause 4.1 of the Award provides:
“4.1 This industry award covers employers throughout Australia in the private transport industry engaged in long distance operations and their employees in the classifications listed in Schedule A—Classification Structure to the exclusion of any other modern award.”
6 There are exceptions to the Award coverage but none of those, as set out in Clauses 4.2 to 4.7 inclusive, apply to the subject employment relationship. Further, there is no dispute about the fact that Mr Scott drove vehicles of the grade described in the Classification Structure in Schedule A of the Award over long distances (as defined in the Award).
7 The issue is whether Mr Scott was correctly paid in accordance with the Award. Clause 13 of the Award deals with minimum weekly rates of pay and classifications. Clause 13.3 - Rates of pay provides:
“13.3 Rates of pay
(a) An employee engaged in a long distance operation must be paid for all driving time pursuant to either the cents per kilometre method set out in clause 13.4 or the hourly rate method set out in clause 13.5.
(b) At commencement of employment the employer must nominate whether the employee is to be paid pursuant to the cents per kilometre method or the hourly rate method. The method of payment may be changed from one to the other upon the provision of four weeks’ notice to the employee in writing. Where no method has been nominated, the cents per kilometre method will apply.
(c) The minimum driving rate must be either the cents per kilometre rate set out in clause 13.4 or the hourly rate set out in clause 13.5, depending upon which method is applicable under clause 13.3(b).
(d) In addition to the appropriate minimum driving rate, a long distance driver must be paid:
(i) the rate or allowance for any loading or unloading duties calculated in accordance with clause 13.6;
(ii) the living away from home allowance as prescribed by clause 14.2(c); and
(iii) any other allowances required to be paid by the award.”
8 Relevantly, Clause 13.5 - Rates of pay - hourly driving method, at Clause 13.5(a) provides:
“13.5 Rates of pay—hourly driving method
(a) An employee engaged in a long distance operation may be paid for the driving component of a particular journey by means of an hourly driving rate for the relevant grade (of) the vehicle. The hourly driving rate may only be applied as follows:
(i) where the journey to be performed by the driver is listed in the schedule in clause 13.5(c) the number of driving hours for that journey is deemed for the purposes of this award to be no fewer than the number indicated in the schedule for that journey; or
(ii) where the journey to be completed is not listed in clause 13.5(c) payment must be for actual hours worked and must not be pursuant to a trip rate which provides for a fixed amount per trip; or
(iii) where the employer has an accredited Fatigue Management Plan in place, the hourly rate may be used to calculate a trip rate for any journey by multiplying the hourly rate by the number of driving hours specified in the FMP for that journey. For the purposes of this clause accredited Fatigue Management Plan means any program which is approved under an Act of a Commonwealth, State or Territory parliament for the purposes of managing driver fatigue.”
9 Clause 13(5)(b) of the Award prescribes how the minimum hourly driving rate is calculated and Clause 13(5)(c) contains a schedule of agreed driving hours for Grade 4 long distance journeys between listed centres. The journey between Perth and the Birla Nifty mine site is not listed.
10 Prior to 1 May 2011 Mr Scott was paid at an hourly rate.
11 It is common ground that during the period of this claim Mr Scott was paid a “trip rate”. The trip rate method of payment can be used where the conditions set out in Clause 13(5)(a)(iii) have been met.
Evidence
12 Mr Scott testified that the “trip rate” form of remuneration was introduced without discussion and without his agreement. Ms Raschilla, the Respondent’s Director, testified that all employees were informed of the proposal at a meeting and had agreed to it. That led her to prepare a generic letter dated 26 April 2011 addressed to all drivers (Exhibit 4), in which she said:

“RE: Schedule for payment for Drivers on Trip Rate

To all the Drivers

As of the 1st May 2011 all drivers that are country drivers will be on a trip rate.
All ordinary hours worked in the yard will be paid at the normal rate of $20.00 per hour then if overtime applies.
The trip rate will be paid at
$2138.00 Gross
5 x travel allowances $72.00 = $360.00
Tax $698.00
$1800.00 Nett
This is effective
Any queries please don’t hesitate to talk to us

Regards

(signature)
Natalie Raschilla Signature of Driver:
Director Driver Name:
26th April 2011”


13 The letter has provision for the acceptance or acknowledgment of it by the driver. It suffices to say that Mr Scott did not sign the letter. Notwithstanding that he continued to drive for the Respondent and was paid the trip rate. He said that each time he attempted to discuss the issue with management that there was no one available to discuss it.
14 In order to implement a trip rate for payment, the Respondent must have an accredited Fatigue Management Plan (FMP) in place. The hourly rate may be used to calculate a trip rate for any journey by multiplying the hourly rate by the number of driving hours specified in the FMP for that journey. An accredited FMP means any program which is approved under an Act of a Commonwealth, State or Territory for the purpose of managing driver fatigue.
15 Ms Raschilla testified that the Respondent had an accredited FMP, however that was not produced. She did however produce an unsigned copy of the Respondent’s Operators Manual which contains the Respondent’s fatigue management guidelines and policies. I observe that the document is not a FMP for the journey between Perth and the Birla Nifty mine site.
16 Ms Raschilla testified that the existence of the FMP is also evidenced by audit reports contained in Exhibit 7. I note however that the audit reports relate to issues going beyond fatigue management. The reports on their face do not establish the existence of an FMP. The audit reports could well relate to the Respondent’s operations as a whole rather than a FMP. Further Ms Raschilla’s own evidence as to how the “trip rate” was calculated tends to contra-indicate the existence of the FMP for that journey. She testified that the trip rate was arrived at by averaging out three drivers’ journey times and taking into account fatigue management and other legal requirements.
17 Given that the Respondent asserts that Mr Scott should have been paid a trip rate, it has the evidentiary burden of establishing that at the material time an accredited FMP for the journey between Perth and Birla Nifty existed. It has failed to do that at trial.
18 Following the trial I was informed by this Court’s Registry staff that Ms Raschilla had, on 5 March 2013, sent to this Court an email attaching a copy of an accredited FMP. I instructed the Court staff to respond to her to inform her that it would not be appropriate for me to consider the attached document unless she first made and was granted an application to reopen her case. The Court file indicates that she was, on 5 March 2013, informed about that and how she could make such an application. I delayed the preparation of these reasons so as to give her a reasonable opportunity to make such an application. It suffices to say that no such application has been received.
19 I have now viewed what was sent and find it to be irrelevant in any event. The document sent is a photocopy of a certificate issued by the Director, Heavy Vehicles Operations, Main Roads Western Australia certifying that the Respondent has been examined by Main Roads’ approved auditors and was found to be conforming to the requirements of Western Australian heavy vehicle accreditation in respect to the Fatigue Management and Maintenance Management modules. On its face it does not appear to be a FMP for the journey between Perth and Birla Nifty but even if it could be said to be such, the certificate relates to the period 12 April 2012 to 11 April 2015 which is outside the material period.
20 Given that the Respondent has failed to discharge its evidentiary burden and given that the cents per kilometre method of payment does not apply it follows that the Respondent should have calculated Mr Scott’s wages on the basis of an hourly driving method as provided by Clause 13.5 of the Award.
Determination
21 Mr Scott kept a diary of the hours he worked for the Respondent. The Claimant has relied on his diary entries to support its claim. Mr Joshua Dalliston, the Claimant’s Assistant Industrial Officer, has produced calculations (Exhibit 8) based on Mr Scott’s diary entries. Although I accept that the method he adopted in calculating the Claimant’s claim is both appropriate and correct the question remains as to whether the diary entries are accurate.
22 The Respondent, in the normal course of its operations required Mr Scott as part of his duties to complete a daily run sheet which when submitted, generated his pay. Only some of the run sheets for the relevant period are available and have been produced. A comparison of the diary entries and the available run sheets indicates that in some instances the run sheet and diary entries for the same day are inconsistent.
23 I am satisfied that the diary entries made are genuine. They have not been made up as is evidenced by the fact that there are some entries against Mr Scott’s interests.
24 With respect to Mr Scott, his recording of details is somewhat sloppy. Such is apparent from both the diary and the daily run sheets (Exhibit 6). During the period 12 September 2011 to 18 September 2011 he has recorded the wrong days and dates on his daily run sheets. In his diary he recorded that he had taken the day off on Thursday, 21 July 2011 when the daily run sheet indicates that he worked that day.
25 When one reconciles the diary entries and the run sheets a few discrepancies arise, not all in Mr Scott’s favour. Some are against him. Having said that I recognise that for the most part his diary entries as to start and finish times seem to correlate with the run sheets and appear to be accurate.
26 In determining this matter it seems to me that I should resolve inconsistencies on the basis that where I am assisted by the existence of run sheets that they should be used in calculation. They are the most contemporaneous record of duties carried out on any given day. They record more fully the details of what happened on any day. Conflicts between run sheets and the diary entries as to start and finish times will be resolved by preferring the run sheets. For the period 12 to 18 September 2011 the diary will be used to correct obvious errors on the daily run sheets as to days and dates. Where run sheets are not available the diary entries will be relied upon, given that such is the best evidence available.
27 Before going to calculations I comment upon the claim made for various allowances including overnight allowance, oversize allowance, packaged dangerous goods allowance and bulk dangerous goods allowances.
28 I accept based on the manifests produced (Exhibit 5) that Mr Scott did from time to time carry dangerous goods. I further accept that he drove oversize vehicles and that he necessarily had to journey overnight. The daily run sheets, diary entries and manifests support such conclusions. The evidence given by Mr Scott in that regard is accepted. The Respondent has not challenged that evidence. His uncontested evidence in that regard establishes an entitlement to such allowances.
Calculations
29 The evidence given by Mr Scott regarding the types of vehicles driven in Perth and to and from the Birla Nifty mine site supports the calculations made by Mr Dalliston. The grades applicable to vehicles driven as referred to by Mr Dalliston in his calculations are entirely correct and appropriate.
30 I accept that Mr Dalliston is correct in his calculations (Exhibit 8). His calculations are however predicated upon the correctness of the source document. The source document is incorrect in some respects. A comparison of the available daily run sheets and the diary maintained by Mr Scott reveal those discrepancies. I set out in the attached table the discrepancies and the resultant change in the monetary value of the claim. The final result being that the discrepancies work in Mr Scott’s favour.
Conclusion
31 Although the Respondent ostensibly owes Mr Scott more than that sought by the Claimant, the claim is limited to the amount sought by the Claimant in its opening. The Claimant has made out its claim in the amount of $23,310.93.






G. Cicchini
Industrial Magistrate

TABLE

Deduction from amount calculated in Exhibit 8 is denoted by -$ and that owing to Mr Scott in excess of that indicated in Exhibit 8 is denoted by +$.

Date
Discrepancy
Result
2 July 2011
Wrong finish time should be 2200 instead of 2230.
- $16.05
5 July 2011
Wrong start time should be 0630 instead of 0700.
+ $15.37
16 July 2011
Wrong start and finish times should be 0630 instead of 0530 and should be 2230 instead of 2200.
- $16.09
17 July 2011
Wrong finish time should be 1530 instead of 1700.
- $44.26
21 July 2011
Worked instead of not working.
+ $257.37
11 August 2011
Wrong start and finish times should be 0645 instead of 0700 and1445 instead of 1515.
- $6.85
12 August 2011
Wrong start time should be 1200 instead of 1100.
- $30.76
16 August 2011
Wrong start and finish times should be 0930 to 1630 instead of 0730 to 1600.
- $41.18
24 August 2011
Wrong start time should be 0700 instead of 0730.
+ $13.72
12 September 2011
Wrong start time should be 0715 instead of 0700
- $6.87
10 October 2011
Wrong start and finish time should be 0715 instead of 0730 and 1630 instead of 1700
- $6.86
12 October 2011
Wrong start time should be 0730 instead of 0700
- $13.73




TOTAL
+$103.80




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