Re Toola (No 2) Pty Ltd v the Transport Workers' Union of Australia [1992] FCA 24; (1992) 40 IR 234 (5 February 1992)

FEDERAL COURT OF AUSTRALIA

Re: TOOLA (No. 2) PTY. LTD.
And: THE TRANSPORT WORKERS' UNION OF AUSTRALIA
No. D I1 of 1991
FED No. 17
Industrial Law
[1992] FCA 24; (1992) 40 IR 234

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
INDUSTRIAL DIVISION
Black C.J.(1), French(2) and von Doussa(3) JJ.

CATCHWORDS

Industrial Law - Interpretation of Award - Breach of Award - Payment of sum less than amount set by Award - Whether evidence sufficient to establish breach - Calculation of hourly rate of pay from Award weekly rate.

Industrial Relations Act 1988 s.178

Transport Workers (Passenger Vehicles) Award 1984

Transport Workers (Passenger Vehicles Two-person Operations) Award 1984

HEARING

DARWIN
5:2:1992

Counsel for the Appellant: Mr D.J. Bleby QC with Mr Crowe

Solicitors for the Appellant: Crowe Hardy

Counsel for the Respondent: Mr J.B. Waters

Solicitors for the Respondent: Waters James McCormack

ORDER

The appeal be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

This is an appeal from a judgment of Lee J. in proceedings in which the Transport Workers' Union of Australia ("the Union"), the Respondent to this appeal, sought the recovery of penalties under s.178 of the Industrial Relations Act 1988 for breaches by Glynburn Contractors (Salisbury) Pty. Ltd. ("Glynburn") of the Transport Workers (Passenger Vehicles) Award 1984 ("the Award"). The Union also sought an order that Glynburn pay to Thomas Kevin Bird an amount to which it claimed Mr Bird was entitled under the Award as a driver formerly employed by Glynburn. Lee J. found that Mr Bird was an employee of Glynburn at the relevant times and that there had been breaches of three provisions of the Award, namely Clause 22 (provision of a uniform), Clause 9 (rates of pay) and Clause 10 (district allowance).

2. His Honour also found that in breach of the Award Mr Bird had been underpaid $2,355.89 and ordered, pursuant to s.178(6) of the Act, that Glynburn pay that sum to Mr Bird.

3. Penalties were imposed for the breaches of the Award as follows:

Clause 9 (rates of pay) $300.00
Clause 10 (district allowance) $100.00
Clause 22 (failure to provide uniform) $ 50.00

His Honour concluded that other breaches alleged by the Union had not been proved.

4. The primary issue before Lee J. was whether Mr Bird was in fact an employee of Glynburn and, as such, entitled to the benefits of the Award. There is no appeal against the finding that Mr Bird was an employee or against the finding that there had been a breach of Clause 22 of the Award or against the penalty imposed for that breach. The appeal is limited to questions relating to interpretation of the Award, the calculation of wages and the sufficiency of the evidence led to establish breach of the Award.

5. Since it instituted this appeal Glynburn has changed its name to Toola (No. 2) Pty. Ltd. and an order was made during the hearing of the appeal that the title of the proceedings be amended accordingly. For convenience, however, I shall continue to refer to the appellant as Glynburn.

6. Before considering the issues of interpretation and sufficiency of evidence raised by Glynburn in this appeal it is necessary to examine briefly the nature of the work in which Mr Bird was engaged when, as his Honour found, he was employed by Glynburn.

7. Glynburn was a wholly owned subsidiary of Bus Australia Limited ("Bus Australia") whose business included the operation of interstate bus journeys, described as "express services", operated in accordance with published timetables and schedules. Glynburn provided Bus Australia with drivers to operate its express services and Mr Bird, an experienced driver, made approximately 13 trips between 1 July 1989 and 20 October 1989 as a driver of a Bus Australia bus on journeys from Darwin to Adelaide and return. The return journey took five days and the task of driving was shared between Mr Bird and a co-driver. Other work, such as the collection of passenger tickets and the allocation of seats was also shared. There was a sleeping compartment in the bus where one co-driver could rest whilst the other was driving.

8. Meal breaks were taken along the way and a longer break, of some hours, was taken at Alice Springs. Clearly enough, whilst the bus was in motion, Mr Bird was either driving or else denied the freedom of activity most employees have when not on duty. Since the evidence was that the bus operated to a timetable and in remote places it may readily be concluded that if, at any time, the need arose to change drivers or to deal with some emergency, the person who was not then the driver would take over the driving or would assist in dealing with the emergency. In fact, cl.6(c) of Part IV of the Award requires that there be an emergency alarm buzzer in the sleeping compartment. It will be necessary to examine Mr Bird's work in a little more detail when I turn to consider the issue raised by Glynburn about the sufficiency of the evidence of breach.

9. It will be apparent, however, that the work involved in long distance passenger bus operations in Australia with two drivers, one remaining on board whilst the other drives, is work that has distinctive features. The lack of freedom of movement and activity that such work necessarily entails for both drivers is likely to be encountered for substantial periods, as it was in the present case. The space available in a bus for a sleeping compartment is of course likely to be limited, as cl.6 of Part IV recognises.

10. The Transport Workers (Passenger Vehicles) Award 1984 contains general provisions applying to employees of parties to the Award in various classifications as drivers of passenger vehicles.

11. The Award was made in March 1985 and in July of that year it was varied so as to make specific provision for the employment of employees of respondents who were employed as drivers on two-driver operations on long distance express, charter or tour work. The variation took the form of amendments to some of the general provisions of the Award as originally made and introduced into the Award a new part, Part IV entitled "Two-Driver Operations". The proceedings before Lee J. were brought for breach of the Award as so varied and my references hereafter to the Award are references to the Award as varied.

12. Clause 5 of the Award includes the following definitions and appended note:

"5 - Definitions
....
(m) "Long distance express work" shall mean work performed on
scheduled passenger express intercity services.
(n) "Two-driver operation" shall mean any express, charter or
tour operation upon which a driver is employed with another
driver in a two driver team and required to share the
driving and associated duties for the whole or substantial
part of that operation (but shall not include a related
feeder or shuttle service driven by another driver).
Note: Two-driver operations shall be operated in accordance with
the provisions of Part IV of this Award and not otherwise."

13. Clauses 11, 13, 14 and 15 each have a preamble before sub-clause (a) as follows:

"Note: The provisions of this clause shall not apply to
employees engaged on two-driver operations as defined, and
subject to the provisions of Part IV of this Award."

14. The relevant provisions of Part IV are as follows:

"PART IV - TWO-DRIVER OPERATIONS
1 - INCIDENCE OF PART IV
This Part shall, except where prohibited by State law, apply
to the employment in any part of Australia of employees of
respondents to this Award employed as drivers on two-driver
operations (as defined in clause 5 of Part I of this Award)
on long distance express, charter or tour work. With the
exception of clauses 11 - Hours of Duty, 13 - Shift Work, 14
- Overtime, 15 - Saturday and Sunday Work, and subclauses
(b) and (d) of clause 17 - Award Holidays in Part I, and
subject to the provisions of this Part, the rates allowances
and other conditions of the Award shall apply.
2 - ARRANGEMENT
Clause Subject matter
5 Annual leave
2 Arrangement
4 Calculation of payment
3 Hours of duty
1 Incidence of Part IV
6 Sleeping compartment
3 - HOURS OF DUTY
(a) Except where driving hours have been delayed
because of accident or in circumstances over which the
employer has no control, the employee shall not drive and
the employer shall not require the employee to drive:
(i) more than a total of 120 hours in any
fortnight exclusive of any unpaid
intervals for meals;
(ii) in any one day more than twelve hours,
with a break of half an hour after each 5
hours worked.
(b) Roster shall provide for sign on 30 minutes
prior to commencement of service and sign off 15 minutes
after termination of service.
(c) Every employee shall have ten hours off duty
immediately after his working period is complete.
4 - CALCULATION OF PAYMENT
Calculation of the wages of both employees involved in
the two-driver operation (at the rate prescribed in Clause 9
of Part I shall be:
(a) Ordinary time for all hours of duty between
midnight Sunday and midnight Friday.
(b) Ordinary time plus 25% for all hours of duty
between midnight Friday and midnight Saturday.
(c) Ordinary time plus 50% for all hours of duty
between midnight and Saturday and midnight Sunday.
(d) An additional eight hours at ordinary time where
hours of duty encompass an award holiday other than Good
Friday and Christmas Day.
(e) Ordinary time plus 25% for all hours of duty on
Good Friday and Christmas Day plus an additional eight hours
at ordinary time.
5 - ANNUAL LEAVE
Employees shall be allowed annual leave in accordance
with the shift workers provision of subclause (a) of clause
18 - Annual Leave, of Part I of this Award.
6 - SLEEPING COMPARTMENT
An enclosed area shall be provided at the rear of the
passenger compartment and shall conform with the following:
(a) It has at least the following dimensions: 198
centimetres long and not less than 53 centimetres wide.
Provided that the area is sufficiently sound proofed to
allow sleeping while coach is in motion at normal road speed
and has easy access and egress for the occupant.
(b) It has at least 75 centimetres unobstructed head room. (c) It is

screened from floor to ceiling with

translucent material and provided with air conditioning,
lights, and emergency alarm buzzer.
(d) The bunk area shall be covered with an
innerspring or high density cellular rubber mattress at
least 10 centimetres thick and a pillow at least 10
centimetres thick shall be provided.
(e) The bunk shall be provided with two sheets, one
blanket and one pillow slip, which shall be exchanged with
freshly laundered items at the completion of each journey.
Provided that a coach fitted with a sleeping
compartment which is registered under any legislation shall
be deemed to conform with the requirements of subclauses (a)
to (d) inclusive."

15. It was contended by Glynburn before Lee J. that if Mr Bird was an employee, the Award on its proper construction entitled him to payment only for the time for which he was actually driving or performing associated duties and not for the other periods during which he was on the bus during the five day journey from Darwin to Adelaide and back. Lee J. rejected that argument which, he said, flew in the face of the provisions of Part IV and the first issue in this appeal is whether his Honour's interpretation of the Award as providing for payment for periods when Bird was neither driving nor performing associated duties was correct.

16. The Award makes general provision for the wages and other conditions of employees of various types of passenger vehicles. Overtime is to be paid for hours worked in excess of those specified. There are some differences in the provisions applicable to employment in particular States but it is sufficient to note the general provisions of Clauses 11 and 14. Clause 11 provides, amongst other things, that the maximum number of ordinary time hours on any one day or shift shall be either eight or nine, depending on the type of work performed. Clause 14 provides for payment at overtime rates for hours worked in excess of eight or nine as the case may be. The rate of pay is to be calculated by applying to the ordinary time rates an additional amount at half ordinary time for the first three hours and an additional amount at ordinary time thereafter. This is not of course a comprehensive summary of the overtime provisions of the Award but it is sufficient to make the point that employees engaged in conventional bus driving work are entitled to overtime for work performed in excess of the ordinary hours of duty.

17. The overtime provisions of the Award are however specifically excluded from application to the two-driver operations to which Part IV applies.

18. It should next be noted that the ordinary time rates of pay per week provided for by cl.9 (Wage Rates) for drivers of passenger vehicles on express long-distance route services, although higher than those for all other driver classifications except one, they are less than 10% higher then the rates for the lowest-paid classifications.

19. The consequence of Glynburn's argument, if correct, would be that an employee such as Mr Bird, driving as part of a two-driver team from Darwin to Adelaide and return, would receive no additional remuneration to compensate him for the non-driving time necessarily spent on the bus during an absence from home, for in excess of four days, but if (as would be expected in a long distance operation and as the Award permits) he drove for more than nine hours in a day, he would receive less per hour for his driving than an employee engaged in ordinary bus driving operations in his home town.

20. An employee engaged in ordinary operations would not usually lose his or her freedom of activity for days at a time and it would be strange indeed if an award that made provision for overtime payments to employees engaged in conventional passenger bus driving operations, and excluded the operation of the overtime provisions from a special part of the Award dealing with two-driver operations on long distance express work, provided for no amount by way of recompense for the necessary presence of an employee on a bus for lengthy periods and no additional amount for actual driving done in excess of the ordinary hours of work of those engaged in conventional operations. To say this is not to express any view as to the proper quantification of remuneration for two different classes of work; it is merely to note that it is unlikely that an award would discriminate in terms of remuneration against a class of employees engaged in long distance operations and for whom special award provisions were made.

21. In construing Part IV of the Award the starting point should, in my opinion, be the nature of the operations to which it applies. Those operations are two-driver operations as defined by cl.5 of Part I "on long distance express, charter or tour work". A two-driver operation as defined by cl.5 is "any express, charter or tour operation upon which a driver is employed with another driver in a two driver team and (is) required to share the driving and associated duties for the whole or a substantial part of that operation."

22. Given the inherent nature of an operation of this type and the contemplation in the Award itself that members of the team engaged in such operations may be required to sleep in the vehicle whilst it is in motion, it is easy to see why an award dealing specifically with employment in such operations would proceed on the basis that both members of the team are to be regarded as being on duty for the whole of the time that the bus is being driven on its journey, whichever member of the team happened to be the actual driver at any time.

23. The definition of "two-driver operation" contemplates not merely that the work to be performed is "driving and associated duties" but that work of that nature will be shared by members of "a two driver team". There is no implication here or elsewhere in the Award that when one member of the team is driving the other is not on duty for the purposes of the award. Indeed, the concept of a team would suggest otherwise.

24. Clause 3 of Part IV is headed "Hours of Duty" but it does not, in terms, define what the hours of duty are. Clause 3(a) specifically deals with driving as such and it limits the hours for which an employee may be required to drive, but it says nothing about hours not spent driving.

25. Clause 3(c), however, contemplates something that the Award terms a "working period" that is plainly more than a period of actual driving. If the "working period" were the same as a driving period, an employee who completed a period of 12 hours driving in a day could not be required to perform any form of duty at all for a further ten hours. He could not lawfully be required, for example, to perform even a minor associated duty. Such a conclusion would be quite inconsistent with the type of operation with which Part IV of the Award is concerned. It is therefore more natural to regard a "working period" for the purposes of cl.3(c) as a period during which an employee is "working" by sharing "the driving and associated duties for the whole or a substantial part of the operation" whether the employee is actually driving or actually engaged in associated duties, or not. Because cl.3(a) is in terms dealing with driving, the reference to hours "worked" in cl.3(a)(ii) should be taken to be a reference to hours worked in driving; so construed it provides no indication that hours of duty for the purposes of Part IV are confined to hours spent actually driving or performing associated duties.

26. Clause 3(b) provides a positive indication that hours of duty are not confined to hours spent driving. The roster must provide for the driver to sign on 30 minutes prior to the commencement of service and to sign off 15 minutes after the termination of service. This suggests a beginning to, and an end of, a working period, at the completion of which an employee is entitled to ten hours "off duty" under cl.3(c). The period "on duty" is, speaking generally, the period in between. That period may, and long journeys will, include times when a driver is not actually driving.

27. Clause 4 prescribes the method of calculation of wages. It is expressed to apply to the calculation of the wages of "both employees" as if to make it clear that no distinction is to be drawn between them whilst they are, to use the words of the clause, "involved in the two-driver operation". Clause 4 then prescribes the method of calculation by reference, in each instance, to "hours of duty", not "hours of driving".

28. In these circumstances the intention of the Award is clear. "Hours of duty" include the time spent on the bus in the course of an employee's work; they are not confined to time actually spent driving or performing associated duties.

29. It was argued by the appellant that it was significant that the provisions of cl.11(e)(ii), which deem time spent on a vehicle to be time spent driving, are excluded from Part IV operations and have no counterpart in Part IV. In my view, this does not assist the appellant's case; on the contrary, the deeming provisions were no doubt excluded deliberately because they would operate to effect a prohibition that would be inconsistent with the type of operation with which Part IV is concerned.

30. In my view, therefore, the first argument of construction relied upon by the appellant fails.

31. Before this Court, the appellant sought to raise a point not argued before Lee J. The point was that for employees to whom Part IV applied there was no warrant in the Award for calculating an hourly rate by dividing the weekly rate by forty, as was done by the primary judge. Since it was accepted by the respondent that the point raised a question of construction only and that the course of the evidence before Lee J. would not have been different had the point been raised before him, the Court allowed the point to be argued on appeal.

32. The appellant's argument on this point is founded upon the exclusion of cls. 11 and 15 of Part I of the Award from the two-driver operations to which the provisions of Part IV apply. Clause 11 of Part I provides that the maximum number of ordinary time hours for any employee shall be 40 in 7 consecutive days worked on any 5 of those days or, in certain cases, 80 in 14 consecutive days worked on any 10 of those days. The clause makes other provisions, including a provision for the maximum number of ordinary time hours on any one day or shift. The general provision, however, is for a maximum of 8 ordinary time hours, with a provision for 9 hours for certain route-service drivers. Clause 15 provides for payment at the rate of time and a half on a Saturday and double time on a Sunday. It may be noted that cl.14, which is also excluded, provides for overtime and the general provision is for overtime to be paid for work in excess of 8 hours on any one day or shift. It was argued that reference could not be made to cls. 11 and 15 because they were excluded from Part IV and that it was necessary to look elsewhere in the Award to determine "ordinary time" for the purposes of cl.4. It was said that if indeed it was necessary to calculate an hourly rate for those purposes, the divisor should be 84, for the reason that cl. 3(a)(ii) allowed the working of up to 84 hours in any one week. Another suggested calculation was twice the weekly rate divided by 120, since the Award allowed for up to 120 hours to be worked in any fortnight. It was contended, however, that the better view was that in the case of an employee whose employment was by the week, the weekly rate provided for by cl.9 of Part I accrued at the rate of 1/7th per day, whether the work was performed or not and that for any work performed on weekends or public holidays, 1/7th of the weekly rate should be increased according to the appropriate formula in cl.4 of the Award.

33. I have already set out the provisions of cl. 4 of Part IV. The clause provides for the calculation of wages by reference to ordinary time for "hours of duty"; the calculation is to be at the rate prescribed in cl.9 of Part I. Clause 9 contains a table of wage rates which vary according to the classification for the type of work concerned. The rates are expressed as rates per week.

34. The language of cl.4 is inconsistent with what the appellant puts forward as the better view that the weekly rate accrues at the rate of 1/7th thereof per day. Clause 4 provides for a calculation at a rate (which is a weekly rate) but the primary calculation is to be "ordinary time for all hours of duty".

35. There are also provisions (cls. 4(b) and (c)) for ordinary time plus a percentage for "all hours of duty" between specified times at weekends. Moreover, by cl.4(d) wages are to be calculated on the basis of an additional 8 hours at ordinary time where "hours of duty" encompass an Award holiday other than Good Friday and Christmas Day and by cl. 4(e) the wages for all "hours of duty" on Good Friday and Christmas Day are to be calculated at ordinary time plus 25% for all "hours of duty" on those days, plus an additional 8 hours at ordinary time.

36. It is plain, in my view, that all of the calculations required by cl.4 of Part IV require a calculation by reference to hours of duty and since the rate which forms the basis of the calculation is a weekly rate, it is necessary to have a divisor. No such divisor is specified in Part IV but the language of cl.4 is otherwise so clearly demonstrative of an intention that the calculation of wages is to be by reference to hours of duty that the absence of any specification of a divisor should not lead to the conclusion that this weekly rate must necessarily accrue at the rate of 1/7th per day. Such a conclusion would, of course, present other difficulties in any event. A divisor must have been intended so that "ordinary time", a central element in the calculation, can be determined.

37. I do not consider that a divisor of 84 or 120 was intended. These suggested divisors are based upon the provisions of cl.3(a) of Part IV but the maximum number of hours that an employee may be required to drive provides no guide to ordinary time; cl.3(a) limits the hours for which an employee may be required to drive but these are not the same as hours of duty and, under cl.4, one of the elements in the calculation of wages is hours of duty, not only hours of driving. In any case, the suggested divisors of 84 or 120 (divided into twice the weekly rate) would produce the curious result that an employee whose employment was subject to Part IV would, if driving on journeys such as were involved in the present case, receive very substantially less on an hourly basis than an employee whose work was subject to the general provisions of the Award and who was working an ordinary week, on ordinary operations, from a place of employment in his or her home town. It is most unlikely that any such disparity would have been intended.

38. In my view the basis upon which the learned primary judge proceeded, apparently without objection, was correct. The divisor is 40. The reason is that the weekly rates prescribed by cl.9 of Part I, being the rates to which cl.4 of Part IV requires reference, presuppose when applied in the context of the ordinary provisions of the Award that, in general, ordinary time is paid for by what might conveniently be called a 40 hour week. Time up to a maximum of 40 hours in 7 consecutive days is "ordinary time". The circumstance that cls.11 and 15 of Part I are excluded from Part IV does not preclude reference to them for the purpose of ascertaining the assumption with respect to ordinary time upon which the rate prescribed in cl.9 of Part I has been fixed.

39. It was also argued by the appellant that there was no evidence upon which Lee J. could have made any finding as to the hours worked by Mr Bird and, therefore, no evidence that there was a breach of the Award by underpayment of wages.

40. Mr Bird gave evidence, which Lee J. described as being of a general nature, about the commencement times of the trips he undertook and of their duration. That evidence was not challenged and Lee J. accepted it. There was additional evidence about the dates and duration of the trips and this was in the form of dated contracts that were signed at the commencement of each trip and pay-slips that were prepared and given to Mr Bird at the end of each trip. The drivers' rosters covering the relevant periods were also in evidence. This unchallenged evidence showed quite clearly the actual dates (and thus, of course the days of the week) upon which each trip was undertaken. There was evidence that the trips were run according to a timetable, which Mr Bird described as "virtually our Bible" and that the drivers could "not speed or anything, but ...still (had) to keep to the timetable as best (they) could."

41. By close analysis, considerable detail can be made out directly from the evidence about the timing of the trips, the duration of the breaks taken for rest at Alice Springs and the places and duration of at least some of the meal-breaks.

42. A calculation purporting to show the hours of duty of each trip and the amounts owing for each trip under the Award was prepared by an industrial officer of the Union, Mr Alexanda Gallacher. He gave evidence that Mr Bird had informed him of the starting and finishing times of his trips and of the time off. He made the calculations, which had been annexed to the Union's points of claim in the proceedings, on the basis of the information supplied by Mr Bird and also on the basis of the pay-slips and the contracts that were in evidence. The mathematical correctness of the calculations was not challenged although the assumption on which the amounts said to be payable were calculated, namely that periods of duty included periods when Mr Bird was not actually driving, was of course in issue.

43. Objection was however taken to the reception of the calculations insofar as they were tendered as evidence of the truth of the starting and finishing times and of other information derived by Mr Gallacher from his conversation with Mr Bird. As such, the evidence was hearsay.

44. There the matter rested and Glynburn submitted to Lee J. that there was no, or no sufficient, admissible evidence to prove Mr Bird's hours of duty. The timetable was not tendered nor was it sought to tender the tachograph records of the vehicles that were driven on Mr Bird's trips. Employees of Glynburn who were called to give evidence by the company were not cross-examined about the starting and finishing times of the trips and Mr Bird had not been asked whether he had in fact provided the information about his trip to Mr Gallacher and whether it was accurate. However, as I have said, Mr Bird's evidence about the trip he undertook was not challenged.

45. In his reasons for decision, Lee J., having referred to the general nature of Mr Bird's evidence about the trips and their duration, and noting that the evidence was not challenged, said that he was prepared to infer that the calculations made by Mr Gallacher and received in evidence were based upon the same detail and represented appropriate calculations of the sums that would have been payable to Mr Bird under the Award. His Honour also noted that Glynburn did not require Mr Bird to maintain a logbook (as the Award required) and apparently did not maintain any records of the hours' worked by such employees. His Honour continued:

"Bearing in mind that Bird carried out his duties according
to a set timetable, it may be assumed that his hours had
some degree of regularity and Bird's recollections in that
regard should be accepted in the absence of any significant
challenge to them."

46. Mr Gallacher's calculations all commenced with a starting time of 0930. Mr Bird's direct evidence as to his starting time in Darwin was that it was "about half past nine" and that he "had to pull out at half past ten". He described the journey from Darwin to Adelaide in some detail, including a break of about 10 hours at Alice Springs and the arrival and departure times at Alice Springs. The arrival time in Adelaide can be fixed from his evidence as being at about 12.30 p.m. on the third day, as can the departure time from Adelaide at about 2.00 p.m. on the third day. There was evidence that the arrival and departure times at Alice Springs on the return journey were, respectively, about 10.00 a.m. and 4.00 p.m. to 4.30 p.m., a break of between 6 and 6 1/2 hours.

47. It was open to conclude from the evidence given by Mr Bird about the travelling times that the south-bound trip from Darwin to Alice Springs took 20 hours, that the trip from Alice Springs to Adelaide took another 20 hours and that the return trip from Adelaide to Alice Springs also took about 20 hours.

48. What is absent, however, is any direct evidence of the duration of the final leg of the return journey from Alice Springs to Darwin.

49. Up to this point, subject to an issue about periods of time off at the southern end of the journey and meal-breaks, the times in Mr Gallacher's calculations, including the period of 10 hours allowed as time off in Alice Springs on the south-bound journey and 6 hours and 15 minutes allowed as time off in Alice Springs on the north-bound journey are substantially supported by Mr Bird's evidence.

50. At no time, however, did Mr Bird expressly say how long the final leg actually took. But he did say that the return journey was "just the reverse" of the south-bound journey and he did say that the route was the same in each direction as, of course, would be obvious enough to anyone familiar with the geography of the region.

51. It is quite clear on the whole of the evidence that the return trip extended into the fifth day and so it is really only within the parameters of the fifth day that serious issue might be taken about the hourly calculations accepted by the trial judge. Given the nature of the operation, the importance of keeping to the timetable and yet not speeding and Mr Bird's evidence that the return trip was just the reverse of the south-bound trip, I consider that it was open to infer that the return Alice Springs-Darwin leg took approximately the same time as the south-bound leg between the same places and over the same route. The duration of the south-bound leg was established by Mr Bird's evidence to be approximately 20 hours. A north-bound leg of 20 hours would put the arrival time in Darwin at between about 2.00p.m. and 2.30p.m. on the fifth day. Mr Gallacher's calculations were made on the assumption that the finishing time on the fifth day was 2.00p.m. And although the rosters in evidence could not be taken as giving any precise indication of starting or finishing times, they are drawn in such a way as to indicate an overall period of duty including about half of the first day and about half of the fifth day; they offer some support for a finishing time that was a substantial time after the commencement of the fifth day.

52. It was argued that the calculations were inappropriate because Mr Bird had said that "on a couple of occasions" he rested at Port Wakefield, north of Adelaide, because the bus was running "5-6 hours late or something". He said that he would there shower and change and would be collected by the north-bound bus on its return. Even if this is to be regarded a time "off duty", the time is simply accounted for as time on duty by the extra hours for which Mr Bird was on duty because the bus was running late.

53. It is clear that there were meal-breaks on both the north-bound and the south-bound trip and Mr Gallacher's calculation allowed time off, apparently for all these breaks. The duration of all of these breaks was not established directly by Mr Bird's evidence but the general pattern was established. In my view it was open as a matter of reasonable inference to conclude that the meal-breaks that were not specifically referred to by Mr Bird were nevertheless taken and were of the duration allowed for in the calculations. In this regard it is important to bear in mind that this was a passenger service run to a timetable. In any event, although it is true that cl.3(a)(i) of Part IV of the Award appears to contemplate that there may be unpaid "intervals" for meals it does not provide that meal-breaks of the nature had by Mr Bird shall be unpaid and I can see no basis in the evidence for concluding that there was any arrangement (assuming the Award permitted one) for unpaid intervals for meals. The agreements Mr Bird made with Glynburn were of course not made with reference to the Award. In fact, given the nature of the particular operations described by Mr Bird and the duties he had to perform, it would be reasonable to infer that he was still on duty for at least part of the short meal-breaks in respect of which Mr Gallacher allowed time off when making his calculations.

54. In these circumstances, I think it clear that the evidence of Mr Bird, together with the documentary evidence, established a breach of the Award by underpayment of wages. If there were any insufficiency of evidence, hours of duty sufficient in number to prove underpayment were established.

55. The question remains whether there was evidence upon which it could have been concluded that the amount underpaid to Mr Bird was $2,355.89 in accordance with Mr Gallacher's calculations (as adjusted by the deduction of amounts included in them for the long vehicle allowance, the entitlement to which was apparently not proved). For the reasons I have given, I consider that it was open to Lee J. to infer that the times upon which the calculations were based were established by the direct evidence of the relevant trips and by inferences that might properly be drawn from that evidence. The failure of the company to challenge Mr Bird's evidence in this respect or to lead any evidence from its own witnesses on this point enables any necessary inferences to be more confidently drawn and greatly diminishes the force of the criticism made of Mr Bird's evidence on account of its general nature.

56. I would therefore dismiss the appeal.

I have read the Reasons for Judgment of the Chief Justice in draft and agree with them and the orders proposed.

In my opinion the appeal should be dismissed. I agree with the reasons for judgment prepared by Black C.J.