The Transport Workers’ Union has lost its appeal against a ruling that found owner-drivers should not be paid during their fatigue management breaks.

It means that mandatory fatigue management breaks for owner-drivers in New South Wales will continue to go unpaid.

The TWU was trying to appeal against a ruling denying payment, but was struck down by the full bench of the Industrial Relations Commission.

In commissioner Peter Newall’s original finding, he determined that the breaks were an “interruption to work”, similar to meal breaks, which are not paid for.

Newall found, and the full bench now agrees, that drivers taking fatigue breaks are “not performing any physical or mental labour” related to their contract.

“Therefore, as a matter of ordinary language, rest time (or a fatigue break) is an interruption to work,” commission president and justice Michael Walton says.

“There does not appear to us to be any basis for distinguishing a lunch break from a fatigue break...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."

But the TWU says that as fatigue breaks are required as part of a driver’s job, they should be paid for.

It came to court after complaints that Linfox did not increase the rates of 10 owner-drivers in line with requirements in the contract determination.

Linfox froze the increases to counter the payments it had inadvertently made for fatigue management breaks.

The TWU and Linfox have now been ordered by the commission to sort out whether the company could underpay the owner-drivers to offset the overpayments.