Chief Executive, Department of Transport and Main Roads v Jake Bragg [2013] QCATA 338

CITATION: Chief Executive, Department of Transport and Main Roads v Jake Bragg [2013] QCATA 338 PARTIES: Chief Executive, Department of Transport and Main Roads (Appellant) v Jake Bragg (Respondent) APPLICATION NUMBER: APL374-13 MATTER TYPE: Appeals HEARING DATE: 24 December 2013 HEARD AT: Brisbane DECISION OF: Senior Member O’Callaghan Member Kanowski DELIVERED ON: 24 December 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. The appeal is allowed. 2. The decision of the Tribunal dated 31 July 2013 is set aside. 3. A decision is substituted confirming the decision of the Chief Executive of the Department of Transport and Main Roads to refuse to grant Corporal Bragg an interlock exemption. CATCHWORDS: Department of Transport and Main Roads – refusal to grant interlock exemption – applicant in Australian Defence Force – meaning of ‘employment’ Transport Operations (Road Use Management) Act 1995 (Qld) s 91Q(3) Transport Operations (Road Use Management – Driver Licensing) Regulation 2010 (Qld) ss 63K(2), 63K(7), 63K(8) -- 1 of 6 -- 2 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). REASONS FOR DECISION [1] This appeal is from a QCAT decision about an interlock exemption. An interlock is a breath test device fitted to a vehicle which stops the engine being started if the driver has been drinking alcohol. [2] Corporal Bragg is a soldier in the Australian Army. He has served for approximately eight years as a transport driver, driving various types of large vehicles. [3] Corporal Bragg was charged with drink-driving while off duty. He was punished in the Magistrates Court for that offence. After serving his period of driver licence disqualification, his Queensland driver licence became subject to an ‘interlock condition’ for two years.1 An interlock condition means that the person can drive only a vehicle fitted with an interlock device.2 [4] The Department of Transport and Main Roads can grant an interlock exemption in certain circumstances.3 Corporal Bragg applied for an exemption. He advised that he was required to drive a range of vehicles in the course of his work, and it would not be possible to have interlock devices fitted to the vehicles. He said he would lose his job without an interlock exemption, causing severe hardship to himself and his wife. [5] The Department refused Corporal Bragg’s application for an exemption. The Department relied on s 63K(7) of the Transport Operations (Road Use Management – Driver Licensing) Regulation 2010 (Qld) (the Regulations): (7) The chief executive may grant the applicant an interlock exemption if— (a) a refusal to grant the exemption would cause severe hardship to the applicant in a way other than by — (i) preventing the applicant from driving in the course of the applicant’s employment, or to or from the applicant’s place of employment; or (ii) preventing the applicant from driving to or from an educational institution the applicant attends; and (b) there is no other transport reasonably available to the applicant. [Our emphasis. We will refer to the highlighted part as the employment exclusion]. [6] Corporal Bragg applied to QCAT for a review of the Department’s decision. On 31 July 2013 QCAT set aside the Department’s decision, and 1 Transport Operations (Road Use Management) Act 1995 (Qld) ss 91K, 91M. 2 Ibid s 91K. 3 Ibid s 91Q(3). -- 2 of 6 -- 3 invited the Department to reconsider its decision on the basis that Corporal Bragg’s inability to continue service in the Australian Defence Force was a factor that would create severe hardship for him.4 The Learned Member held that the employment exclusion relates to civilian employment only (not military employment). [7] The Department now appeals to the Appeal Tribunal. Its principal argument is that Corporal Bragg is ‘employed’ in the Australian Defence Force, and so the employment exclusion does apply. The issues to be addressed are:  is Corporal Bragg’s service in the Australian Defence Force ‘employment’ for the purpose of s 63K(7)?  if so, does the employment exclusion apply?  if so, are there other viable grounds for review? Is Corporal Bragg’s service in the Australian Defence Force ‘employment’ for the purpose of s 63K(7)? [8] ‘Employment’ is not defined in the Regulations. [9] The Department contends that the interlock exemption is not available to Corporal Bragg because the hardship relied upon is that he is prevented from driving in the course of his employment. [10] The Learned Member did not accept that argument. She observed that Australian Defence Force personnel are appointed or enlisted. She noted ways in which military service differs from civilian employment, such as loss of personal freedom, and risks to life and safety. She regarded Corporal Bragg as enlisted in, rather than employed by, the Australian Defence Force. She considered that ‘employment’ in s 63K(7) must mean civilian employment. [11] The Department has drawn our attention to a number of cases in which the Courts have distinguished between employees and self-employed independent contractors. Those cases discuss factors such as control (or the capacity for control) over work, whether the worker has the power to delegate the work to another person, the form of remuneration and taxation, and the extent to which the work is integrated within the larger enterprise. We agree with the Department that Corporal Bragg would be properly classified as an employee of the Australian Defence Force rather than as an independent contractor. A soldier is subject to control over how their duties are performed; they must personally fulfil their duties; they are paid a salary; they wear a uniform; and so on. [12] However, that does not quite address a key point made by the Learned Member: that ‘employment’ in s 63K(7) means civilian employment (but not military employment). 4 Bragg v Chief Executive, Department of Transport and Main Roads [2013] QCAT 440. -- 3 of 6 -- 4 [13] We respectfully disagree with the Learned Member on this point. The purpose of the Regulation is to allow an exemption in cases of severe hardship other than employment-related and education-related hardship. It would operate, for example, in a case where the person is unable to access vital medical treatment. There is no reason to suppose that the intention was to limit the employment exclusion to civilian employment. Clearly, the employment exclusion will affect the livelihood of civilian employees such as bus drivers. It is not apparent why it would not also have been intended to affect the livelihood of military employees. It is true that military service carries risks that civilian employment does not, but that is immaterial in the context of a road safety measure. Had it been the intention not to include military employment in the term ‘employment’, presumably the Regulation would have stated that expressly. [14] Nor, in our view, is it significant that Corporal Bragg was enlisted, rather than employed under a contract. The mode of engagement is not material in the context of a road safety measure. It can be assumed that the employment exclusion was intended to extend to all types of employment including, for example, statutory office and self-employment. [15] We consider that Corporal Bragg’s service in the Australian Defence Force is employment for the purpose of s 63K(7). Does the employment exclusion apply? [16] The severe hardship as framed by Corporal Bragg is that without the exemption he is unable to perform his job and so he will lose his job. [17] The Department argues that any dismissal would flow from the drink driving offence rather than the refusal of the interlock exemption. The evidence before the Learned Member on this point was somewhat mixed. For present purposes the Tribunal will assume, in Corporal Bragg’s favour, that the loss of employment (if it occurs) will result from the refusal of the interlock exemption. [18] In the event of the loss of employment, the hardship would flow directly from the loss of employment, and only indirectly from the inability to drive in the course of the employment. Is that sufficient to trigger the employment exclusion? [19] Being unable to drive in the course of one’s employment, or to get to and from work, is never going to directly cause severe hardship. Such hardship will arise from something that happens as a result of that inability: the termination of the employment or a substantial reduction in income. So the fact that the hardship is not the immediate result of the inability to drive cannot be critical. If it were, the employment exclusion would have no operation. [20] We consider that the employment exclusion does operate in Corporal Bragg’s case. The severe hardship, if it results, will have occurred by preventing Corporal Bragg from driving in the course of his employment. -- 4 of 6 -- 5 It follows that Corporal Bragg cannot be granted an exemption under s 63K(7). Are there any other viable grounds for review? [21] Because the Learned Member found in Corporal Bragg’s favour on the employment issue, she did not have to decide two matters raised by Corporal Bragg: hardship to his wife, and inability to fit interlock devices to military vehicles. It is appropriate that we consider them. Hardship to Corporal Bragg’s wife [22] The Learned Member found that termination of Corporal Bragg’s service would create hardship for Corporal Bragg’s wife, who is dependent upon him for financial support. [23] The relevant ground for exemption is s 63K(8) of the Regulations: (8) The chief executive may grant the applicant an interlock exemption if— (a) a refusal to grant the exemption would cause severe hardship to a family member of the applicant in a way other than by— (i) preventing the applicant from driving the family member to or from the family member’s place of employment; or (ii) preventing the applicant from driving the family member to or from an educational institution the family member attends; and (b) there is no other transport reasonably available to the family member. [24] The requirement that there be no other transport reasonably available to the family member compels the conclusion that the hardship to the family member must arise from the loss of transport, rather than a loss of financial support. It has not been suggested that Corporal Bragg’s wife will suffer severe hardship other than by the loss of financial support. Accordingly, this ground of exemption is not available. Inability to fit interlock devices to military vehicles [25] Corporal Bragg provided documents about military vehicle requirements and Australian Defence Force policy about modifications to its vehicles. The difficulty, as we understand it, is not that it is physically impossible to fit an interlock device to most military vehicles, but rather that the Australian Defence Force will not permit it. [26] The relevant exemption, in s 63K(2) of the Regulations, is available only if ‘it is not physically possible to fit a prescribed interlock to the only motor vehicle reasonably available to be driven by the applicant’. Putting aside the question of physical impossibility, this exemption cannot apply in any event because there is not just one vehicle available to be driven by Corporal Bragg. Corporal Bragg’s case is that it he is required to drive a variety of vehicles in the course of his work. -- 5 of 6 -- 6 Conclusion [27] We consider that there is no ground of exemption available to Corporal Bragg. Accordingly, the Department’s appeal should be allowed, and a decision substituted confirming the Department’s decision to refuse to grant an interlock exemption. [28] The Department sought leave to appeal. We do not consider that leave is required. It would be required if the appeal was on a question of fact or a question of mixed law and fact.5 However, the only critical question in the appeal was the meaning of ‘employment’ in s 63K(7) of the Regulations. That is a question of law. 5 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(3)(b). -- 6 of 6 --