A RECENT decision by Fair Work Australia (FWA) in favour of the TWU was received with a great deal of excitement by our members at Linfox and could have widespread implications for the entire transport industry.
On October 26, 2012, a Full Bench of FWA comprising senior deputy president Drake, deputy Harrison and Commissioner Gooley, accepted the TWU's argument that all crib breaks, meal breaks (outside of one unpaid meal break) and legislated driver breaks should be paid as time worked.
This means that if such breaks are taken outside of ordinary hours, they are to be paid at the applicable shift rate.
Linfox's argument that drivers are not at work when on a break and thus should be paid at the base rate while on such a break was rejected by FWA.
The decision of the Full Bench of FWA overturned an earlier decision by Commissioner Harrison in favour of Linfox and sets a legal precedent as to the correct understanding of what constitutes "time worked" in industrial instruments.
The decision confirms that when a driver is on a crib break it is to be classified as "time worked" under the Road and Transport Distribution Award 2010 (the Modern Award).
This means that if crib breaks are taken outside of ordinary hours or on a Sunday or public holiday, drivers will be paid at the applicable shift rate rather than the ordinary rate of pay.
This is not only a win for workers, but also a win for commonsense.
The issue regarding our Linfox members was plain and simple: our drivers should be paid at the same rate for their crib break as the shift that they are working.
The dispute started in mid-2011 when Linfox suddenly stopped paying drivers the applicable shift rate for all crib breaks following their interpretation of the new union agreement.
Linfox justified the change to the TWU and to members as being in line with the Modern Award which did not specify at what rate a crib break was to be paid.
As a result and without consultation, Linfox took it upon themselves to pay drivers at the ordinary time rate.
The rate had always been paid by Linfox in accordance with its previous union agreement and we expected it to continue under the new union agreement.
We took Linfox to FWA because we believed that its decision to suddenly stop paying crib breaks at the shift rate was unjust and unfair and I'm glad that FWA has seen it our way.
While Linfox drivers will benefit from having more money in their pay cheques, the decision may have industry-wide implications.
The decision makes it clear that a crib break under the Modern Award counts as being 'work'.
This means that drivers working under the Modern Award could be entitled to hundreds of dollars if they, like our Linfox drivers, were not being paid the correct break rate by their employer.
As a result of FWA's decision, and pending any appeal by Linfox, members will receive back pay for any underpaid break time from August 2011.
This is a huge win for our Linfox drivers and the transport industry as a whole and once again demonstrates that the TWU is always ready to stand up for its members.
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