Industrial Relations Commission New South Wales Medium Neutral Citation: Transport Workers' Union of New South Wales v Hanson Construction Materials Pty Ltd [2021] NSWIRComm 1036 Hearing dates: 22 April 2021 Date of orders: 22 April 2021 Decision date: 22 April 2021 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: Recommendation made Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Contracts of carriage – application for interim contract determination to permit recovery from principal contractor for damage caused to truck – whether principal contractor responsible for damage – whether interim determination in the terms sought can or ought to be made Legislation Cited: Industrial Relations Act 1996 (NSW) ss 318, 332, 380 Category: Principal judgment Parties: Transport Workers' Union of New South Wales (Notifier) Hanson Construction Materials Pty Ltd (Respondent ) Representation: R Rasmussen (Notifier) J Aynsley (Respondent) File Number(s): 2020/342209 Publication restriction: No EX TEMPORE decision 1. On 2 December 2020, the Transport Workers' Union of New South Wales ("TWU") filed with the Office of the Industrial Registrar a notification of an industrial dispute pursuant to s 332 of the Industrial Relations Act 1996 (NSW) ("Act"). 2. The "question, dispute or difficulty" identified in the notification was described as arising under the Hanson Construction Materials Pty Ltd Concrete Carriers Contract Determination ("Determination"). In simple terms, the notification stated that TWU member, Mr Jason Hillsley, is engaged as a carrier by the respondent, Hanson Construction Materials Pty Ltd ("Hanson'); that in early 2015 Hanson fitted an agitator to Mr Hillsley's vehicle; and, that agitator was not installed appropriately, as a consequence of which Mr Hillsley had suffered damage to his vehicle, requiring him to expend the sum of $2,388.32 in repairs. 3. The matter came on for hearing today. The TWU relied on two statements. The first was that of Jason Hillsley, which was filed on 2 March 2021. In very broad summary, Mr Hillsley deposed: 1. He is a contract agitator driver engaged to Hanson through a company named SJL Services Pty Limited ("SJL Services"). He has been engaged on a permanent basis by Hanson since 2008. 2. His engagement is subject to the Determination, which forms part of his cartage contract by virtue of a deed of contract entered between Hanson and SJL Services on 30 January 2014. 3. The Determination sets out at Appendix E the specifications for his vehicle. This includes the requirement for the truck to have a "six speed automatic transmission with PTO", with "PTO" standing for "Power Take Off". 4. SJL Services purchased a new vehicle in late 2014. 5. In 2015, Hanson engaged a third party to install and fit an agitator to the truck. I digress to observe that cl 12.2 of the Determination provides that, "Hanson shall ensure the safe and proper fitting of an agitator to the vehicle in accordance with the specifications of the vehicle and agitator manufacturers." 6. In August 2019, having noticed liquid leaking from the PTO seal, Mr Hillsley took the truck to Craig's Automatic Transmission to replace the seal, only to be told that "the entire PTO bearing had collapsed and was chewed out". As a consequence, he had to replace the entire PTO at a cost of $2,388.32. 7. Mr Hillsley subsequently took the truck to Driveline Services Australia to diagnose the problem. In an undated letter, which is attached to Mr Hillsley's statement, Mr Doug Gissing, a Branch Manager of Driveline Services Australia, stated: "Inspection of installation & measurement of the universal joint angles on the PTO shaft showed the universal joint at the PTO end is operating at an angle 11 degrees & the universal joint at the pump end is operating at 9 degrees. Even though they are opposite angles, they should also be equal angles. … With drive shafts operating at these speeds & angles, they are producing excessive vibrations causing damage which can & does occur to the drive shaft components & to the components it is attached to. Mainly causing premature bearing & other internal failures. In my opinion, in order to achieve this, the installation has to be modified to lower the hydraulic pump to reduce the operating angles & mounted to make the angles equal. …" 1. Mr Hillsley subsequently arranged, through Hanson, to have the pump lowered, consistent with the advice he had received. 2. Since that work was done in January 2020, there has been considerably less vibration in the drive shaft and PTO. He has also had to do less maintenance on the universal joints, which he had previously had to replace four times between August 2016 and August 2019. 3. He believes that he should not be responsible for damage caused to his vehicle as a result of the improper installation of Hanson equipment. 1. The TWU also tendered a statement of Doug Gissing of Driveline Services Australia, which was accepted without objection. Mr Gissing was not required for cross-examination. Mr Gissing stated: 1. He is a qualified heavy vehicle mechanic who has been working on trucks for 26 years. He has 18 years' experience with the repair of drivelines and drive shafts for PTO. 2. In his experience, incorrect installation of drive shafts can lead to damaged PTOs and other parts because they are not of a constant velocity. They can wear out universal joints faster, as well as the actual drive shaft components. The PTO and pump can also be damaged because of the pulses due to the shaft being out of phase. Being out of phase has this impact because the joints are operating at an angle which means that the universal joints accelerate and decelerate, which creates a pulse. The greater the angle, the bigger the pulse through the PTO, the drive shaft and the pump. 3. In or around September 2019, Mr Hillsley brought in a truck and asked him to inspect it, and provide his expert opinion on the installation of the driveline. He conducted tests using the weighted protractor (angle master) and determined that the angle out of the PTO was at 11 degrees and that the angle into the pump was 9 degrees. His advice at the time was that the pump needed to be lowered in order to reduce the operating angles. 4. In his "expert opinion", the drive shaft of the PTO was installed out of specifications and the probability is high that this led to severe damage of the PTO universal joints and drive shaft. 1. In response, Hanson relied on a statement of Jordan Aynsley dated 15 March 2021, which was a combination of evidence, opinion and submission. Mr Aynsley stated: 1. He is a concrete transport manager for Hanson, a role he has held for the last 18 months. He holds a degree in engineering from the University of Technology Sydney and a Diploma in Engineering Practice. He also holds a heavy vehicle driver's licence - class HR. 2. Contrary to the views expressed by Mr Gissing in his statement, 1. a company called Davcron Engineering had inspected the drive shaft and found nothing wrong, as evidenced in emails between Hanson and that company; 2. there are numerous causations for a PTO failure, including but not limited to bearing failure, seal failure, bush failure, shim or auxiliary gear failure, excessive chassis twist and excessive vibration from several sources; 3. the assertion that the incorrect installation of the agitator, specifically the PTO shaft angle, was the sole causation for the PTO failure is, at most, speculative; 4. the truck in question, namely an Isuzu FYJ, has well- documented issues with chassis flex; 5. based on available information, the likely cause of failure is the lack of checks and minor maintenance undertaken by the operator, including daily inspections and checks of the suspension hold down bolts, along with a twisting truck chassis. 1. Based on evidence regarding services conducted on Mr Hillsley's truck, the evidence suggests that the operator not only has issues with chassis flex but that he has failed to meet the requirements of cl 12.4 of the Determination, by failing to ensure the agitator hold down bolts were checked for tightness and rectified if loose. 2. A number of technical features of the truck, including its suspension systems, might otherwise have caused the problems experienced by Mr Hillsley. 3. In conclusion, Hanson submits the compensation is not payable to Mr Hillsley for what is ultimately a truck-related issue. 1. The question before the Commission is largely to determine, in the first place, what might have caused the failure of the PTO in Mr Hillsley's truck. I digress to observe that the owner of the truck and, indeed, the contracting party, is SJL Services and while I refer to Mr Hillsley, I do that out of convenience because that is the basis on which the evidence was put forward by the parties and the way in which the carrier was referred to in these proceedings. 2. The Commission has before it the uncontroverted evidence of a person who, admittedly in a self-described manner, is put forward as an "expert" and who deposes that it was the fact that the drive shaft of the PTO was installed out of specification which in most probability led to severe damage of the PTO universal joints and drive shaft. 3. Against this, we have what is, with respect, the uncorroborated opinion evidence of Mr Aynsley, who has not put forward any basis on which he can express opinions contrary to those of Mr Gissing. True it is that the annexures to his statement include emails between Davcron Engineering and Hanson, which are inconsistent with the evidence of Mr Gissing. However, two issues arise. Firstly, as the evidence revealed, any inspection by Davcron of the drive shaft was some years ago. The extent to which it is relevant to the current circumstances is limited. But in any event its reliability must be called into question in the sense of whether the author of the emails can, in fact, be accepted to have an independent recollection of an inspection for which there is, on the evidence, no corroborative documentation. 4. Moreover, if Hanson wished to rely on Davcron Engineering as somehow responding to the evidence of Mr Gissing, it was incumbent on it to call someone from that company to give evidence in these proceedings so that their evidence could be tested. In the absence of that, the email evidence from Davcron Engineering has limited probative value in this case. 5. As I say, we are then left with largely uncorroborated statements of opinion as to what might have caused damage to the PTO in contrast to the evidence of Mr Gissing as to what in most probability did in fact cause the damage. 6. I do note that there was some evidence of maintenance of the vehicle. Again, though, such evidence of maintenance records as is before me falls short of supporting the contention at par 18 of Mr Aynsley's statement that "the likely cause of failure is the lack of checks and minor maintenance undertaken by the operator". Three documents were tendered recording three trip inspections. It was put by Hanson that these were conducted immediately prior to or in close proximity to services of the vehicle which identified major defects or other failings. That is not made out on the documents and certainly not on the maintenance records attached to Mr Aynsley's statement. I have some difficulty with Mr Aynsley's evidence that a mechanic of Diesel Tec conducting a major service of a vehicle would only tighten bolts with a torque wrench if they were found to be loose enough to be tightened by hand. 7. It is relevant, as the TWU submitted, that after the pump was relocated the need to repair parts associated with the PTO including universal joints had ceased. While not necessarily probative of any particular fact, it is indicative of perhaps a cause and effect between the prior location of the pump and the damage that was being caused to the vehicle. 8. As already stated, cl 12.2 of the Determination requires Hanson to ensure the safe and proper fitting of an agitator to the vehicle, in accordance with the specifications of the vehicle and agitator manufacturers. While I accept the submissions of Hanson that there might be a number of causes of PTO failure, and that the length of time between the installation of the agitator and the problems becoming identified argues against there being a causal connection, I am bound to follow the evidence that has been presented in the proceedings and, in this case, that is the uncontested evidence of Mr Gissing. 9. On the evidence before me, I am satisfied that the damage caused to Mr Hillsley's vehicle was caused by the drive shaft to the PTO being installed out of specifications. It follows that there is a question as to whether Hanson has met its obligations under cl 12.2 of the Determination. 10. But that finding does not complete my determination of these proceedings. 11. By way of relief, the TWU seeks an interim contract determination pursuant to ss 332(5) and (6) of the Act. The interim determination would require this: 1. if a breach of the Determination causes damage to the contract carrier's vehicle; and 2. the contract carrier supplies an invoice equal to the amount to rectify the damage; then 3. the principal contractor will pay to the contract carrier the total amount of the invoice "to make good any damage likely resultant from the breach". 1. The TWU seeks to have that interim determination take effect from 1 August 2019. 2. During his oral submissions, I explored at some length with Mr Rasmussen the power of the Commission to make such an interim determination. I have reservations as to whether an interim determination such as that sought by the TWU in these proceedings can properly be made under those provisions. 3. I have a tentative view, which it is not necessary to finally determine in these proceedings, that the provisions are primarily directed towards the maintenance of the status quo while a dispute between the parties is resolved. I understand that the TWU does not accept that position and, as it was not fully ventilated in these proceedings, I do not think it is appropriate or necessary that I attempt to resolve that today. 4. I have further reservations as to whether an interim contract determination can be made in a retrospective fashion, as sought by the TWU, given the provisions of s 318 of the Act, but again I do not think it is necessary that I make a final determination in that respect. 5. I am not satisfied, though, that the interim determination sought by the TWU is one which would, within the meaning of s 332(6)(a), be one to "restore or maintain the conditions existing between the parties immediately before the occurrence of the events giving rise to the industrial dispute". Rather, the effect of the interim determination is to give rise to an entitlement to claim loss and damage which is not contained in the Determination itself. 6. On that basis, I decline to make the interim contract determination sought. 7. The TWU put, as an alternative to an interim determination, an application under s 380 of the Act for the payment of money by way of a small claim. However, Mr Rasmussen accepted, in response to questions from me during his oral submissions, that no entitlement presently arises under the Determination that would permit any order to be made by me that Hanson pay any amount to Mr Hillsley or his company. 8. There is a contract between SJL Services Pty Ltd and Hanson. That contract includes the terms and conditions contained in the Determination. If Hanson has breached cl 12.2, SJL Services might have a claim for breach of contract against Hanson. But that is a claim which is outside the jurisdiction of the Commission and would need to be dealt with in another forum. It may be that the transcript of these proceedings and this decision will inform the outcome in any such proceedings but would certainly not be determinative of what might happen in a court. 9. So I am left in the rather unfortunate situation of being unable to provide the TWU with any relief, notwithstanding my finding regarding the cause of damage to the PTO. That said, I note that I asked Mr Aynsley during his submissions what would be Hanson's position if I were to find that the agitator had been fitted incorrectly to the truck in 2015 and he stated his acceptance at least that Hanson would be obliged to pay to Mr Hillsley or his company the amount of damage caused to the PTO. I remind him of that submission. 10. Having done so, based on all of these matters, I make a recommendation that Hanson Construction Materials Pty Limited pay to SJL Services Pty Limited the sum of $2,388.32 within 28 days. Damian Sloan Commissioner ********** 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: 26 April 2021