Industrial Relations Commission of New South Wales CITATION: Mozos v. Eternity Transport Pty Limited [2005] NSWIRComm 1106 APPLICANT Angelo Mozos PARTIES: RESPONDENT Eternity Transport Pty Limited FILE NUMBER(S): 907 of 2005 CORAM: Connor C termination of employment - claim of unfair dismissal - contract driver - the nature of employment CATCHWORDS: Industrial Relations Act 1996 LEGISLATION CITED: Clarkson v. Dent (1998) 84 IR 250 Dhillon v. Call Australia Pty Limited (1996) 68 IR 1 Finch v. C and B Taxis Pty Limited (unreported) Ready Mixed Concrete (South East) Limited v. Minister of Pensions and National Insurance (1968) 2 QB 497 CASES CITED: Rolfe v. Mayne Nickless (unreported) Stevens v. Brodribb Sawmilling Company Pty Limited (1985) 160 CLR 16 Zuijs v. Wirth Brothers Pty Limited (1955) 93 CLR 561 HEARING DATES: 07/06/2005 DATE OF JUDGMENT: 08/04/2005 APPLICANT David Taylor Turner Freeman Lawyers LEGAL REPRESENTATIVES: RESPONDENT Nigel Smith DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Thursday, 4 August, 2005 Matter No IRC 907 of 2005 Angelo Mozos and Eternity Transport Pty Limited Application under S.84 of the Industrial Relations Act, 1996 DECISION [2005] NSWIRComm 1106 1 Mr Angelo Mozos was engaged as a truck driver with Eternity Transport Pty Limited. He commenced his engagement with Eternity Transport on Thursday, 6 July, 2004 and his services were terminated on Thursday, 8 February, 2005 following complaints from clients, problems with the maintenance of his vehicle and his attitude generally at work. He subsequently lodged an application under Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] of the 1996 Industrial Relations Act claiming that the termination of his services was unfair and seeking monetary compensation over it. 2 Eternity Transport claim that Mr Mozos was engaged as a contractor and not as an employee. S.84(1), the pivotal provision of Part 6, reads as follows: "If an employer dismisses an employee and the employee claims that the dismissal is harsh, unreasonable or unjust, the employee may apply to the Commission for a claim to be dealt with under this Part." Therefore, as the words underlined above indicate, no remedy for an unfair dismissal may be obtained under Part 6 unless the applicant is an employee of the employer respondent. Sub-contractual relationships do not arise under Part 6 [ Dhillon v. Call Australia Pty Limited (1996) 68 IR 1 at pp. 2 and 3]. 3 The matter was allocated to me by Registry staff and set down for a conciliation and directions hearing on Wednesday, 16 March, 2005. Conciliation failed to settle the matter. I programmed Mr Mozos' Part 6 application for arbitration, dealing firstly on Wednesday, 6 July, 2005 with the jurisdictional issue - whether or not Mr Mozos was an employee (in which case he would fall within jurisdiction under Part 6) or a contractor (in which case he would not). 4 Notwithstanding the fact that the hearing of that jurisdictional issue was known to the parties since Friday, 1 April, 2005 when I programmed it for hearing, on Tuesday, 5 July, 2005 Eternity Transport received correspondence from Mr Taylor, representing Mr Mozos, to the following effect: "...We note that this matter is listed for hearing as to jurisdiction tomorrow... We advise that the applicant is not ready to argue the jurisdictional point. Given this, we propose either: * that you do not attend tomorrow and we will mention your appearance and seek further orders as to the hearing of this matter; or * that you attend tomorrow and we speak to you this time with the Commission present to seek to negotiate an outcome in this matter... We will put a further offer for the resolution of this matter to you today..." A copy of that letter was forwarded to me. 5 I have to say that Mr Taylor has taken a lot for granted. I no longer have the luxury to move matters around so freely in my diary to accommodate the parties, especially when there is such little notice - one day - of the desire of one party to vacate a scheduled hearing date. And not surprisingly, Mr Nigel Smith, the director of Eternity Transport, who has represented it in the proceedings, was opposed to any further adjournment of the matter. Nor was he prepared to reconsider his position and make an offer in settlement of the matter. He requested that I determine the jurisdictional issue. He is entitled to seek my decision on that matter. I indicated that I was not prepared to adjourn the hearing. 6 Mr Taylor then tendered an affidavit of Mr Mozos which I accepted into evidence. He provided an amended Part 6 application which I also treated as an exhibit. Mr Smith found no need to cross-examine Mr Mozos on any points in his affidavit. He was prepared to proceed to hearing then and there but in fairness to him since he had only received Mr Mozos' affidavit immediately prior to the hearing I believed that it was appropriate to reserve his position to provide some written statement in reply if he chose to do so. I gave him one week. I also gave Mr Taylor a further week to respond to anything that Mr Smith provided in that respect. That is a somewhat unorthodox method to bring this matter to a conclusion but in the circumstances, having regard to my present diary commitments, it appears to be the only method available to me. Simply put, I have few free days to accommodate any further hearing days in 2005 and it would be in neither the interests of Mr Mozos nor Eternity Transport for there to be any delay in bringing this matter to a conclusion. 7 Whether or not a contract of employment under which work is performed establishes an employer/employee relationship is ordinarily a mixed question of fact and law, chiefly dependent upon the rights conferred and the duties imposed in a particular relationship [Clarkson v. Dent (1998) 84 IR 250 at pp.252 and 253]. In Ready Mixed Concrete (South East) Limited v. Minister of Pensions and National Insurance (1968) 2 QB 497 the situation was explained (at p.515) thus: "…A contract of service exists if these three conditions are fulfilled: (i) the servant agrees that, in consideration of wage or other remuneration, he will provide his own work and skill in the performance of some service for his master; (ii) he agrees, expressly or impliedly, that in the performance of that service he will be subject to the other's control in a sufficient degree to make the other master; (iii) the other provisions of the contract are consistent with its being a contract of service…" 8 The question of control is an important factor. To establish an employer/employee relationship, the putative employer must reserve for himself the right of direction and control, whether or not he actually exercises it. What matters is lawful authority to command, so far as there is scope for it [Zuijs v. Wirth Brothers Pty Limited (1955) 93 CLR 561 at p.571]. But the question of control is not the sole criterion of an employer/employee relationship. In the High Court decision of Stevens v. Brodribb Sawmilling Company Pty Limited (1985) 160 CLR 16, Mason J spoke (at p.24) of other relevant factors as pointing to the existence or not of an employer/employee relationship, viz: "…the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and provision for holidays, the deduction of income tax and the delegation of work by the putative employer…" 9 In his affidavit Mr Mozos describes the conditions under which he was engaged by Eternity Transport: he drove a truck supplied by Eternity Transport; he had regular times to start work each day [6.00am]; he was directed to wear a uniform; he was paid an hourly rate and not on completion of jobs or mileage covered in his vehicle; he took a week of annual leave (unpaid I assume); he received no superannuation; he was required to provide an invoice for his work and an ABN number for taxation purposes; he signed a document (reluctantly apparently) that described him as a sub-contractor. Mr Mozos asserts in his affidavit that when he worked for Eternity Transport he "...felt like an employee...". But that belief does not make him an employee in fact or law. 10 Moreover, a special position presently pertains to the contract drivers - taxi driver bailees and owner/drivers - in this State who are covered not by Part 6 but by the provisions of Part 2, Contract Determinations, of Chapter 6, Public Vehicles and Carriers [Ss.311 to 331]. My unreported decision of Wednesday, 23 April, 1997 in Rolfe v. Mayne Nickless [Matters No.5230 and 5231 of 1996] confirms that position. I commented (at p.6) that contract work in the transport industry: "…bore certain features which made it similar to an employer/employee relationship. The work of owner-drivers does, to some extent, bear a resemblance to employment. That, of course, is the reason for the special provisions of Chapter 6... - a recognition that the work of owner-drivers is such as to require regulation and some protection. But because that work is regulated through contract determinations under Chapter 6 in this State, it must follow that it is outside the scope of Part 6..." 11 And that brings Mr Mozos' Part 6 application to a jurisdictional hurdle which, in my opinion, he is not able to mount. Whilst the remedy for contract drivers lies not under Part 6 but the comparable provisions of Chapter 6, a special provision for contract drivers, any claim made under Chapter 6 must be mounted only by those parties recognised as having standing under S.311. As I indicated in my unreported decision of Monday, 26 October, 1998 in Finch v. C and B Taxis Pty Limited [Matter No. IRC 4835 of 1998], individual owner drivers lack standing under S.311 which restricts applications under Chapter 6 to the following: (i) a bailor under a contract of bailment where the average number of bailees engaged on each working day was not less than ten persons; (ii) a principal contractor under a contract of carriage where the average number of bailees engaged on each working day was not less than ten persons; (iii) an association of employing contractors which represents bailors or principal contractors; and (iv) an association of contract drivers. 12 For that reason I am satisfied that Mr Mozos's Part 6 application is beyond jurisdiction under Part 6 (or Chapter 6 for that matter) and I dismiss it. P J CONNOR 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.