Industrial Relations Commission of New South Wales CITATION: Transport Workers' Union of New South Wales v. New South Wales Road Transport Association and Courier and Taxi Truck Association [2006] NSWIRCOMM 1014 APPLICANT Transport Workers' Union of New South Wales PARTIES: FIRST RESPONDENT New South Wales Road Transport Association SECOND RESPONDENT Courier and Taxi Truck Association FILE NUMBER(S): IRC 5493 of 2004 CORAM: Connor C CATCHWORDS: application to industrial committee - variation of contract determination - safety net - delay in proceedings - interim adjustment - opposition to application - unanimous decision of industrial committee LEGISLATION CITED: Industrial Relations Act 1996 CASES CITED: Contract Couriers and Taxi Truck Drivers Case - unreported Transport Industry (State) Award Case (1974) AR 472 HEARING DATES: 27/01/2006 DATE OF JUDGMENT: 01/27/2006 EXTEMPORE JUDGMENT DATE : 01/27/2006 APPLICANT Charlie Heuston Transport Workers' Union of New South Wales LEGAL REPRESENTATIVES: FIRST RESPONDENT Shaun Schmitke New South Wales Road Transport Association SECOND RESPONDENT James Taylor Courier and Taxi Truck Association DECISION: INDUSTRIAL COMMISSION OF NEW SOUTH WALES TRANSPORT INDUSTRY COURIER AND TAXI TRUCK INDUSTRIAL COMMITTEE CORAM: CONNOR C (chairman) RICHARD OLSEN DAVID TRITON ROD GRACE NOEL LEWIS (committee members) Friday, 27 January, 2006 Matter No IRC 5493 of 2004 Transport Workers' Union of New South Wales and the New South Wales Road Transport Association and the Courier and Taxi Truck Association Application under S.312 of the Industrial Relations Act, 1996 for variation of the Transport Industry - Courier and Taxi Truck Contract Determination re increased safety net INTERIM DECISION [2006] NSWIRComm 1014 1 On Monday, 13 September, 2004 the Transport Workers' Union of New South Wales lodged an application to the Transport Industry Courier and Taxi Truck Industrial Committee for a variation to the Transport Industry - Courier and Taxi Truck Contract Determination. The application sought to increase the rates of remuneration prescribed as a safety net in the contract determination. (By virtue of S.199, an industrial committee holds the jurisdiction of the Commission for the purposes of Part 2, Contract Determinations, of Chapter 6, Public Vehicles and Carriers [Ss.311 to 321] of the 1996 Industrial Relations Act.) Historically, there have been two rates of remuneration for contract couriers and taxi truck drivers: (i) rates which provide a safety net - a guaranteed level of remuneration, calculated on an hourly basis, below which no contract courier may be engaged and (ii) a unit rate - an incentive payment scheme based on the actual work performed. The TWU application seeks to increase the safety net (but it will have no effect on the incentive payments). 2 In my unreported decision of Monday, 22 June, 1998 in the Contract Couriers and Taxi Truck Contract Determination Case [Matter Nos.3252 and 7101 of 1997 and 1872 of 1998] I preserved the safety net (over the objections to it by the TWU and the Courier and Taxi Truck Association), adopting at that time the position taken by the New South Wales Road Transport Association. I commented in my decision (at p.53) that: "...I would not wish to place any barrier in the way of the incentive schemes in place for contract couriers. Individuals working in the industry have historically been remunerated by an incentive payment scheme and it is appropriate for that form of remuneration to remain in force. But I am satisfied that a case has been made out for the preservation of a safety net for contract couriers to underpin those incentive payments and ensure that the level of remuneration which contract couriers receive on an incentive scheme basis do not fall below a defined minimum. Implicit in any attempt to provide an enforceable document on which the contract courier industry may be effectively regulated - every party's stated aim in this hearing - is the need I see for a safety net to underpin the incentive schemes in place. I see that course as wholly consistent with the structure of the 1996 Act and, in particular, Chapter 6..." 3 The TWU lodged its current application to vary the contract determination for contract couriers and taxi truck drivers on Monday, 13 September, 2004 but it has proven very difficult to move the matter along in any productive manner. The matter came before me for a mentions on Wednesday, 29 September, 2004, Wednesday, 10 November, 2004, Wednesday, 8 December, 2004, Friday, 18 February, 2005, Friday, 18 March, 2005 and Wednesday, 20 April, 2005. It was adjourned until Thursday, 26 May, 2005 for the conference required by S.315 before the industrial committee under my chairmanship. 4 On Wednesday, 4 May, 2005 I wrote to the Registrar requesting that he contact the TWU (for two members on the industrial committee), the RTA (for one member) and the CTTA (for one member). Pursuant to Reg 9(1) of Schedule 3: "...meetings of a committee are, subject to the rules of the Commission, to be convened by the Industrial Registrar..." The conference commenced before the industrial committee on Thursday, 26 May, 2005. Ms Robertson , representing the CTTA in the proceedings at that time, highlighted certain irregularities she saw in the constitution of the industrial committee, viz: (i) orders made by Marks J on Thursday, 17 June, 2004, which have been subsequently gazetted, were in error and, whilst that error had been rectified by his Honour in proceedings on Wednesday, 25 May, 2005, that correction had at that time not been gazetted; and (ii) one member of the industrial committee, representing the TWU (Mr Richard Olsen), had not to date given the oath required for him to serve on it. 5 In my opinion, the fact that the rectification of the error in the orders made by Marks J on Thursday, 17 June, 2004 was not at that stage gazetted was not fatal to the proper operation of this particular industrial committee. I considered that it was only the amended orders of his Honour which were important in that respect. And for the conciliation required by S.315 to be effective, all I really required was one member of the industrial committee to accompany me as chairman to properly constitute it. That I had before me. The need for equal representatives on both sides for the industrial committee only becomes an issue of importance when there were arbitrated issues at stake and there is some opposition to any particular motion [Reg 9(4)]. The industrial committee, dictated by the terms of S.315, was only in the conciliation phase. 6 Nevertheless, for abundant caution, I adjourned the proceedings until Thursday, 30 June, 2005 for further conference (by which time I expected that any problems over the constitution of the industrial committee would have been rectified - and they were). I also made directions for the filing of statements of contention by all parties appearing in the proceedings to permit the matter to proceed into arbitration at the expiry of the further conference under S.315. That did not occur, however. 7 On Tuesday, 28 June, 2005 the CTTA wrote to me concerning the involvement and standing of one other member of the industrial committee - Mr Rod Grace, representing the RTA. The gist of the CTTA's letter was that Mr Grace had participated in the negotiations concerning the TWU application before the industrial committee and: "...the basis of the concern is the ethics which are attached to this trusted position and the official oath taken by members of the Commission and committees. We do not wish to have these proceedings derailed by actions that may cause problems further down the line..." 8 Only the CTTA appeared to have any concerns over Mr Grace's involvement on the industrial committee. As chairman of the industrial committee, I certainly did not. Members of the industrial committee come to it respectively from their particular interests, either on behalf of the contract drivers or the principles that engage them. That situation does not detract from the fact that they act independently on the industrial committee - and have taken an oath of office to do so. 9 The matter was adjourned again for mentions on Wednesday, 13 July, 2005, Thursday, 29 September, 2005, Friday, 4 November, 2005 and Thursday, 8 December, 2005 for further programming before me (sitting alone). I was informed that there was some prospect that the matter may proceed to an agreed position and, in those circumstances, I set the matter down for hearing on Thursday, 22 December, 2005, instructing the parties to make members of the industrial committee available so that the matter may be advanced to conclusion. 10 However, on Wednesday, 21 September, 2005 the CTTA wrote to me informing me that: "...the parties are not in a position to consent and wish to pay you the courtesy of advising you that we wish to have this matter listed for further directions only on Thursday, 22 December, 2005. It would be most appreciated if you could vary the status of the hearing, by consent, to further directions...and advise the parties..." In fact, Mr Heuston , representing the TWU in the proceedings on Thursday, 22 December, 2005, informed me that the TWU did not agree to an adjournment. To that extent, the CTTA letter suggesting otherwise was in error. 11 Any attempt to advance the matter further to determination was frustrated by the unequal representation of the industrial committee - two representatives from the TWU (Mr Olsen and Ms Dimity Leahy) and only one representative for the CTTA (Mr Noel Lewis). Ms Leahy stood down from the industrial committee so that a balance could be achieved but Mr Fernan, now representing the CTTA in the proceedings, and Mr Schmitke, representing the RTA, submitted that I should adjourn the proceedings and I did so - reluctantly, in view of the length of time it has already taken to bring this matter to determination. Mr Fernan also sought to adduce further evidence, arguing that it would be a denial of natural justice for me not to permit that to occur. His request was made far outside the time that had been allowed by my directions for the filing of evidentiary material. Nevertheless, I ultimately permitted him to do so - again reluctantly - to ensure that the CTTA was given every opportunity to advance and explain its case. I scheduled the hearing of the matter before the industrial committee on Friday, 27 January, 2006. 12 On Tuesday, 24 January, 2006 the CTTA wrote to me to inform me of the illness of Ms Robertson, who has had carriage of the matter for the CTTA from the outset. The CTTA letter indicated that: "...Ms Robertson was admitted to hospital some days ago. After a brief conversation with her daughter, I was advised that it was very unlikely that Ms Robertson will be released before Friday, 27 January, 2006 as she has been gravely ill... As you know, Ms Robertson is the CEO of the CTTA and has been representing us in that capacity for some time. It is very difficult for the CTTA to find a replacement and bring that person up to speed for the matter on Friday, 27 January, 2006..." Also on Wednesday, 25 January, 2006 I received a notice that the CTTA's solicitors were ceasing to act for it and, as a courtesy a representative of that firm of solicitors appeared in the proceedings on Friday, 27 January, 2006 and was granted leave to withdraw. 13 The matter then proceeded to hearing before the industrial committee on Friday, 27 January, 2006. In the hearing Mr Heuston represented the TWU, Mr Schmitke represented the RTA and Mr Taylor now represented the CTTA. There was, in fact, an agreed position between the TWU and the RTA for an interim increase to the safety net in the contract determination for contract couriers and taxi truck drivers and Mr Heuston handed up two documents to give effect to that agreed position: a schedule [Exhibit A] - which provides for an interim increase to the safety net effective on and from Wednesday 1 March, 2006 - and draft orders [Exhibit B] - which provided for a further increase to both the safety net (excepting exclusive hire) and the adopted unit rate by not less than 6.92% effective no later than Thursday, 1 March, 2007. 14 Mr Taylor still recorded the CTTA's opposition to any increase to the safety net, arguing that there was nothing in it for those contract couriers and taxi truck drivers on incentive schemes. The CTTA believes that all contract couriers and taxi truck drivers should receive an increase to their remuneration and an increase to the safety net alone would not achieve that aim. The CTTA remains committed to the abolition of the safety net - as it had been in the Contract Couriers and Taxi Truck Drivers Case before me in 1998. 15 I simply state that it is the TWU application which sets the agenda in this particular case before the industrial committee. If the CTTA wishes to fundamentally change the nature of the contract determination for contract couriers and taxi truck drivers - and what it is seeking to do in removing the safety net is a fundamental change - it should lodge its own application in that respect and it cannot effectively "piggy-back" on the TWU application which is confined and intent on preserving the safety net. I invite the CTTA to proceed so that the issues it has raised may be effectively addressed by all interested parties. 16 In any event, for the present it is the unanimous decision of the industrial committee that the contract determination for contract couriers and taxi truck drivers should be varied in accordance with Exhibit A and that the draft orders in Exhibit B be adopted. In terms of Reg 9(4), it has not been necessary for me, as chairman, to determine the matter [the Transport Industry (State) Award Case (1974) AR 472]. In accordance with the draft orders in Exhibit B, I direct the parties into further discussions over the timing and quantum of the further increases to the rates of remuneration for contract couriers and taxi truck drivers. I will reconvene the proceedings on Friday, 3 March, 2006 for mention and further programming (sitting alone). P J CONNOR Chairman of Committee 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.