Industrial Relations Commission New South Wales Medium Neutral Citation: Transport Workers' Union of New South Wales v Conco Construction Services Pty Ltd [2020] NSWIRComm 1054 Hearing dates: 20 August 2020 Date of orders: 20 August 2020 Decision date: 20 August 2020 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: (1) Pursuant to s 380 of the Industrial Relations Act 1996 (NSW) Conco Construction Services Pty Limited is to make payments as follows: (a) to Dewstow Contracting Services Pty Ltd – $915.83 including GST; (b) to K & K Wheeler Pty Ltd – $915.83 including GST; and (c) to MJML Pty Ltd – $969.77 including GST. (2) Pursuant to s 378(2) of the Industrial Relations Act 1996 (NSW), payment of the amounts referred to in order (1) is to be made to the Transport Workers' Union of New South Wales within 14 days. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — Industrial disputes — Dispute orders – contract carriers – failure by principal contractor to pay in accordance with the Transport Industry – Excavated Materials, Contract Determination – orders for payment of money Legislation Cited: Industrial Relations Act 1996 (NSW) Ch 6, ss 309, 332, 343, 373, Ch 7, ss 378(2), s 380 Category: Principal judgment Parties: Transport Workers' Union of New South Wales (Notifier) Conco Construction Services Pty Limited (Respondent) Representation: R Rasmussen (Notifier) File Number(s): 2020/194248 Publication restriction: No EX TEMPORE Judgment 1. On 30 June 2020 the Transport Workers' Union of New South Wales ("TWU") filed with the Industrial Registry a Notification to Industrial Registrar of Industrial Dispute ("Notification") pursuant to s 332 of the Industrial Relations Act 1996 (NSW) ("Act"). The Notification alleged that Conco Construction Services Pty Limited ("Conco") and The Generals Group Pty Limited had failed to pay contract carriers engaged by them their entitlements under the Transport Industry – Excavated Materials, Contract Determination ("Determination"). 2. The TWU represents in these proceedings: 1. Dewstow Contracting Services Pty Ltd; 2. K & K Wheeler Pty Ltd; and 3. MJML Pty Ltd, (collectively, "Carriers"). 1. I arranged to have the matter listed for compulsory conference on 7 July 2020. 2. On 3 July 2020 the Registry received an email from Robert Rasmussen, an Official with the TWU, which stated in part: "The parties have had an opportunity to discuss the matters giving rise to the notification of dispute and believe we have reached an accommodation. The TWU will ensure that updated invoices are sent to the Respondent, and the outstanding monies will be paid to the Contract Carriers prior to 15 July 2020. We ask that the matter be stood over until Friday, 17 July 2020. … Further, the TWU included The Generals Group in the dispute notification. We have discussed the matter with the Director of The Generals Group and have determined that they have no involvement in this matter. We ask that The Generals Group are removed from any further interaction with this matter, including the requirement to appear should the matter not be finalised prior to 17 July 2020." 1. The matter came before me on 21 July 2020. Mr Rasmussen appeared for the TWU. There was no appearance for Conco. Mr Rasmussen informed me that he had spoken to Mr Conor Flynn of Conco; it had been agreed that the amount being claimed by the TWU on behalf of its members was incorrect; and, if amended invoices in the correct amount were issued, Conco would attend to payment by 15 July 2020. 2. At Mr Rasmussen's request I listed the matter for report back on 28 July 2020. 3. When the matter came before me again on 28 July 2020, Conco was represented by Mr Flynn. Mr Rasmussen continued his appearance for the TWU. Mr Flynn made the following statement: [1] "I just recently received funds this morning and I'm finally able to make that payment now, just if you can give me an hour after this phone call probably." 1. As a consequence of the commitment provided by Mr Flynn, and on the basis that once the promised payment was made the dispute would be at an end, I ordered that the file would be closed administratively on 4 August 2020 if the TWU did not contact the Registry prior to that date seeking an extension of time or relisting. 2. On 4 August 2020 the Registry received an email from Mr Rasmussen which stated in part: "Conco Construction Services Pty Ltd has failed to make payments as Mr Flynn undertook to complete before the Commission on the last occasion. We therefore seek that the matter be relisted." 1. I convened a directions hearing on 6 August 2020. Mr Rasmussen continued his appearance for the TWU. There was no appearance by Conco. I made directions for the arbitration of the matter. I also requested that Mr Rasmussen attempt to contact Mr Flynn to inform him that those directions had been made. 2. On the same day the Registry sent an Appointment for Hearing to the parties, confirming the directions made that day. It was sent to the email address for Conco provided in the Notification. 3. On 12 August 2020 Mr Rasmussen sent a further email to the Registry which stated in part: "As directed by the Commission, the TWU has attempted to contact Mr Flynn on three occasions to discuss the number of witnesses to be called. We have left messages on each occasion and have had no response. The TWU remains concerned that Mr Flynn has no intention to appear on the date in question and has no intention of resolving the matter." 1. In light of the contents of Mr Rasmussen's email, and the conduct of Conco in the proceedings generally, I requested that the Registrar issue to Mr Flynn a summons to confer. That summons was issued on 13 August 2020. 2. On 19 August 2020 the Registrar received a "Notice of Non-Service" from the Office of the Sheriff of NSW. It stated that service of the summons had been attempted earlier that day, at the address provided for Conco in the Notification. The Notice further stated: "Officers attended the given address and spoke to the business centre manager, Susan Thakkar, from Regus, who advised the defendant had left the given address approximately 8 months prior. Susan advised the suite was currently vacant and had no contact details or forwarding details for the defendant." 1. Earlier today I requested that the Registrar attempt to make contact with Mr Flynn via his mobile telephone. The Registrar subsequently informed me that at approximately 8.35am today she called the mobile number. The call went through to voicemail. The voicemail message identified the recipient of the call as Conor Flynn. The Registrar left a message for Mr Flynn confirming that the matter was listed for hearing today and leaving the telephone number of the Registry if he had any questions. 2. I am told that Mr Flynn has not subsequently called the Registry. 3. When the matter came on for hearing Mr Rasmussen appeared for the TWU. There was no appearance by Conco. 4. Mr Rasmussen confirmed that he has previously been able to contact Mr Flynn through both the mobile telephone number and the email address contained in the Notification. Indeed, the evidence that was led by Mr Rasmussen included email communications from and to Mr Flynn at the email address contained in the notification. 5. I am satisfied that Conco is aware of these proceedings. Reasonable attempts have been made by the Registry and the TWU to secure Conco's appearance today. There is no basis to suspect that messages sent to Conco through the email address and mobile telephone number provided in the Notification are not being received. 6. Having regard to those matters and the history of the proceedings generally I intend to proceed to determine the matter notwithstanding Conco's failure to appear today. 7. Evidence was adduced orally from Mr Graham Dewstow a director of Dewstow Contracting Services Pty Ltd. He is the Treasurer of the Tip Truck Owners Section of the TWU and is an elected delegate for carriers. His evidence was adduced orally via telephone. 8. In summary, Mr Dewstow gave the following evidence: 1. His company, Dewstow Contracting Services Pty Limited, is a contract carrier for the purposes of the Act and operates a three axle bogey concrete tipper. K & K Wheeler Pty Limited and MJML Pty Limited are also contract carriers operating the same type of vehicle. 2. Mr Dewstow was introduced to Mr Flynn by Mr Benson of MJML Pty Limited. Mr Flynn, on behalf of Conco, requested that the Carriers provide services carting concrete in connection with a project on which Conco had been engaged. 3. At some stage, it was agreed that each of the Carriers would be paid $100 per hour plus travel for all work completed. 4. Each of the Carriers was required to undertake two or three inductions, including at the site of Holcim at which the concrete would initially be obtained. 5. It was also a requirement of the engagement that the Carriers remove from their vehicles a ring feeder, so as to ensure that they would be able to discharge their loads at the tip site. The evidence adduced by the TWU included an invoice paid by Dewstow Contracting Services to have the ring feeder removed from its truck, at a cost of $66 including GST. 6. No other modifications to their vehicles were requested of any of the Carriers. 7. At approximately 6.30am on 31 March 2020 each of the Carriers attended the site of Holcim in Lidcombe in New South Wales to begin providing services. Mr Flynn was present. He took the Carriers on an inspection of the site. 8. While he did so, he told the Carriers that he would only be paying them $85 per hour and would not be paying them for travel. The Carriers stated that this was inconsistent with the agreement that had been reached and so they would be leaving the site. Mr Flynn essentially beseeched the Carriers to remain and to perform the work as otherwise it would not be possible for Conco to fulfil its contractual obligations. The Carriers stated that they would only remain on the basis that they would receive the agreed $100 per hour with one hour travel time. Mr Flynn agreed to these terms. 9. There was some delay in the loading of the material and it did not occur until approximately midday. The Carriers transported their loads to the tip site, where the load was rejected on the basis that their vehicles could not be accommodated at the discharge point. That is, their trucks simply did not fit. 10. The Carriers returned the material to the load point. They tipped their loads off, had their dockets signed off and left the yard. 11. All up, each of Dewstow Contracting Services and K & K Wheeler had spent 7.5 hours at work; MJML had worked an extra half hour, to a total of 8 hours. 12. The Carriers invoiced Conco in accordance with the agreed terms. 13. A dispute subsequently arose between the parties, with Mr Flynn on behalf of Conco challenging any obligation to pay the invoices. Email correspondence before me suggests that he attempted to do so on the basis that the Carriers had not, as requested, had the ring feeders removed from their trucks and that, in any event, he had only agreed to pay $85 per hour. As will be clear, I do not consider that there is any merit to either of these assertions. 14. The Carriers raised the issue with the TWU, in the hope of being able to resolve the matter. 1. The TWU contacted The Generals Group Pty Limited, which is the head contractor of the project. The TWU was informed that payment had been made to Conco for the work done on 31 March 2020. 2. The TWU made contact with Mr Flynn, who committed, on behalf of Conco, to make payment if the invoices were updated to reflect the rates in the Determination. 3. The TWU provided Conco with updated invoices on or about 4 August 2020. None of the carriers has yet been paid on those invoices. 4. Mr Rasmussen relied on written submissions that had been sent to the Commission by email on 17 August 2020. That email was copied to Conco. 5. I am satisfied that the Commission has jurisdiction to hear and determine this matter. There existed between each of the Carriers and Conco a contract of carriage within the meaning of s 309 of the Act. The TWU has standing under Ch 6 of the Act to bring the Notification, which in turn discloses a dispute within the meaning of s 332, noting s 332(2)(b) in particular. 6. The Determination provides as follows: 4. Hourly Rates 4.1 For each hour the contract carrier spends carrying excavated and demolition material (including returning to a site unloaded), the contract carrier will be paid the hourly rate in Item 6 of Part B, Rates of Remuneration. 4.2 In addition to the rates payable under subclause 4.1 of this clause, the contract carrier will be paid the rate in Item 6A of the said Part B for every cubic metre (or part thereof) carried in excess of the truck's minimum capacity as specified in subclause 7.1 of clause 7, Suitable Vehicle and Loading. 4.3 Travelling Time - The contract carrier will be paid one hour travelling time at the hourly rate referred to in subclause 4.1. 1. The hourly rate referred in cl 4.1 of the Determination is, and was at the time the Carriers performed the cartage work, $97.957. 2. Applying the Determination, I am satisfied on the evidence that the Carriers are collectively entitled to receive from Conco the sum of $2,801.43. Nothing is before the Commission to suggest that this amount is not properly payable. 3. The TWU seeks an order pursuant to s 380 of the Act for payment of $2,801.43, representing the total amount of the claims by the Carriers. Section 343 of the Act identifies those provisions of the Act that "apply to and for the purposes of" Ch 6. The applied provisions include Ch 7. 4. Section 380, which appears in Ch 7, relevantly provides as follows: 380 Small claims during other Commission hearings (1) An industrial organisation may, during any proceedings before the Commission, make an application for an order under this Part and for the application to be dealt with under section 379 (Small claims procedure). (2) Such an application may be made only if the order is sought against another party to the proceedings. (3) The Commission must not deal with the matter until the party against whom the order is sought is given adequate prior notice of the application and an opportunity to be heard on the application. (4) The Commission may deal with the matter. … (6) An order made in accordance with this section is to be made separately from any other order in the proceedings. … 1. I am satisfied that: 1. cumulatively, the Carriers are owed $2,801.43 made up as follows: 1. Dewstow Contracting Services Pty Ltd – $915.83 including GST; 2. K & K Wheeler Pty Ltd – $915.83 including GST; and 3. MJML Pty Ltd – $969.77 including GST. 1. the application for an order under s 380 is brought against Conco, a party to these proceedings; and 2. Conco has been given adequate prior notice of the application and an opportunity to be heard on the application. 1. The TWU further seeks an order that any amount ordered to be paid to the Carriers be paid to the TWU, pursuant to s 378 of the Act. I propose to do so, noting however the terms of s 378(3). 2. The TWU has also sought an order for costs under s 373 of the Act. The TWU submitted that it would "provide details of costs when requested". 3. I do not propose to make an order for costs at this time. Without in any way prejudging the question, I would need to be satisfied that there was a proper basis for any order under s 373 and that the Commission ought to exercise its discretion in favour of the TWU. If the TWU wishes to pursue an order for costs it should make the necessary application supported by appropriate evidence. 4. I order as follows: 1. Pursuant to s 380 of the Industrial Relations Act 1996 (NSW) Conco Construction Services Pty Limited is to make payments as follows: 1. to Dewstow Contracting Services Pty Ltd – $915.83 including GST; 2. to K & K Wheeler Pty Ltd – $915.83 including GST; and 3. to MJML Pty Ltd – $969.77 including GST. 1. Pursuant to s 378(2) of the Industrial Relations Act 1996 (NSW), payment of the amounts referred to in order (1) is to be made to the Transport Workers' Union of New South Wales within 14 days. Damian Sloan Commissioner ********** Endnote 1. Tcpt 28 July 2020 p 2(26-28) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 August 2020