Often there is confusion amongst drivers and employers over exactly what ‘loading and unloading’ entails when it relates to payment of the award based allowance. Now, due to a recent case brought to the Fair Work Commission, the definition of ‘loading and unloading’ has been further clarified.
Modern awards apply to employers and employees who perform work covered by the award. Their terms don’t prevent owner drivers from agreeing to different contractual provisions. But the importance of the transport modern awards is obvious: they set the minimum rates of pay below which it is unlawful to employ employees.
On 20 November 2020, a Full Bench of the Fair Work Commission upheld NatRoad’s arguments in a case brought forward by two drivers seeking changes to the Road Transport (Long Distance Operations) Award.
One of the changes sought was to modify the definition of loading and unloading. NatRoad argued that there is currently no ambiguity in the definition. The Fair Work Commission agreed saying,
We would agree with the proposition that the words ‘loading or unloading’ in Cl 3 –Definitions – means ‘physically engaged’ in loading or unloading. It does not comprehend activities such as:
- complying with entrance and departure procedures at load or unload location;
- applying or releasing all load restraint devices,(to be removed);
- operation of trailer curtains;
- waiting time or queuing time;
- processing of freight documentation; and/or
- checking vehicle weights on weighbridges.
For completeness, we do not consider that the definition of ‘loading or unloading’ is ambiguous or unclear. No evidence was provided as to any examples of individual drivers being unclear – let alone there being widespread confusion in the industry – as to how the provisions have been applied and operated in the industry for some time. We would note that if further clarity was needed, it can now be found in the preamble to the Industry Disability Allowance clause in the 2020 Consolidated LDO Award which reads:
(a) Industry disability allowance
The minimum hourly driving rates, rates per kilometre and loading or unloading rates are inclusive of an industry disability allowance of 1.3 times the ordinary rate … (our emphasis)
Pickup and Drop Offs
The Full Bench also noted “There is nothing in the definition of ‘long distance operation’ to imply that an operation will only involve one pickup and one drop-off. For a journey to constitute a long distance operation, it must (at least) involve moving livestock or materials from a principal point of commencement to a principal point of destination. That does not mean the journey might not involve picking up or dropping off at more than one location. Indeed, that possibility is implicit in the use of the word ‘principal’, which implies that there might be ‘secondary’ points of commencement or destination.
Based on the evidence presented by the applicants, the Full Bench found that “There is no evidence that the industry circumstances and practices, as reflected in the LDO Award which existed less than three years ago, have changed to such an extent, or at all, such as to warrant a reconsideration by this Full Bench of an assessment of the remuneration structure in this Award.
This clarification on a long-standing definition of an award entitlement is welcomed by NatRoad.