Industrial Court of New South Wales CITATION: Transport Workers' Union of New South Wales v Toll Transport Pty Ltd & Anor [2009] NSWIRComm 42 APPLICANT Transport Workers' Union of New South Wales PARTIES: FIRST RESPONDENT Toll Transport Pty Ltd SECOND RESPONDENT Toll Holdings Pty Ltd FILE NUMBER(S): IRC 2522 of 2005 CORAM: Staff J CATCHWORDS: Unfair contract - Owner/drivers - Practice of selling trucks with work formalised in registered agreement - Sale of business to respondents - Representation that engagement of owner/drivers with respondent no less favourable than they had been with previous owner - Respondents refused to implement representation - Loss of goodwill component - Contracts unfair because of failure to contain terms consistent with representation made to owner/drivers - Contracts unfair because did not contain a sale of vehicle clause - Jurisdiction - Whether performance of work - Whether order could be made in respect of corporation subsequently deregistered - Contracts unfair, harsh and unconscionable - Orders made LEGISLATION CITED: Industrial Arbitration Act 1940 Industrial Relations Act 1996 Air Great Lakes Pty Ltd v K S Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309 Alliance Motor Auctions Pty Ltd v Industrial Relations Commission of New South Wales (2005) 146 IR 99 Darren John Palmer v Tnt Australia Pty Ltd (Trading As Tnt Express) [1995] NSWIRComm 243; [1995] NSWIRC 24 BNY Australia Limited v James & Anor (1992) 40 IR 1 Bradib Pty Ltd v Jilly Bean Pty Ltd & Anor (No 1) (1987) 21 IR 90 Browning v Morris (1778) 2 COWP 790 Caterpillar of Australia Ltd v Gough & Gilmore Holdings Ltd (2008) 170 IR 185 Fish & Another v Solution 6 Holdings Limited (2006) 225 CLR 180 Myer Stores Limited, t/as Grace Bros v Stowart and Others (1994) 55 IR 21 CASES CITED: Myer Stores v Stowart & Ors; Darren John Palmer v TNT Australia Pty Ltd, Hungerford J, unreported, 15 March 1995 Sin Yong Yim & Tae Sik Kim v Industrial Relations Commission of NSW & Hyun Sung (Marco) Choi [2007] NSWCA 77 Sydney Water Corporation Ltd and Another v Industrial Relations Commission of NSW and Another (2004) 61 NSWLR 661 T D Preece & Co Pty Ltd v Industrial Court of New South Wales & Anor [2008] NSWCA 285 Thomas Nationwide Transport Ltd (t/as "Altrans Bulk") v Thomas & Anor (1990) 34 IR 378 Transport Workers' Union (on behalf of Steve Cincotta t/as S M Cincotta Pty Ltd and others) and Visy Board Pty Ltd [2005] NSWIRComm 178 Transport Workers" Union of New South Wales (on behalf of Cruickshank Transport Pty Ltd) v Stegbar Pty Ltd [2007] NSWIRComm 244 Virtue v New South Wales Department of Education and Training (1999) 92 IR 428 Westfield Holding v Adams (2002) 114 IR 241 Zammit and Another v Trend Windows & Doors Pty Limited [2008] NSWIRComm 48 HEARING DATES: 1 December 2008, 2 December 2008, 3 December 2008, 4 December 2008, 5 December 2008, 11 December 2008 and 12 December 2008 DATE OF JUDGMENT: 31 March 2009 APPLICANT Mr AA Hatcher of counsel Solicitor: Mr M Doherty Maurice Blackburn Cashman Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr A Moses SC with Mr Y Shariff of counsel Solicitor: Mr J Catanzariti Clayton Utz Lawyers JUDGMENT: - 1 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: STAFF J Tuesday, 31 March 2009 Matter No IRC 2522 of 2005 TRANSPORT WORKERS' UNION OF NEW SOUTH WALES v TOLL TRANSPORT PTY LIMITED & ANOR Application under s 106 of the Industrial Relations Act 1996 JUDGMENT [2009] NSWIRComm 42 1 The loss of opportunity of truck drivers engaged by Toll Transport Pty Ltd and Toll Holdings Pty Limited ("Toll") to sell their trucks with work and receive compensation for the opportunity or right to earn income at the Toll workplace has given rise to this action which is brought by the Transport Workers Union of New South Wales ("the applicant") pursuant to s 106 of the Industrial Relations Act 1996. 2 This particular case concerns nine current, or former owner/drivers who are, or were engaged by Toll. The owner/drivers all formerly worked in a transport business located at Revesby operated by Brambles Transport Services ("Brambles"). While Brambles operated the business, a practice of selling trucks with work, that is at a price higher than those trucks that are sold as a piece of mechanical equipment, developed as a result of Brambles allowing the owner/drivers to sell their vehicles to persons who would then take their position in the Brambles yard. The premium paid has loosely and inaccurately been called "goodwill" 3 The practice was formalised in an agreement which was reached between the applicant and Brambles in 1989 ("the 1989 agreement"), which was registered pursuant to s 91H of the Industrial Arbitration Act 1940. 4 In 1996, Brambles sold the business to Toll. Upon the sale occurring, Toll issued a letter to each of the owner/drivers dated 25 June 1996. Although it will be necessary to discuss this letter in more detail, for present purposes, the letter relevantly provided: Under the sale arrangements between Toll and Brambles, the terms of your engagement with Toll will be no less favourable (than) those currently applied to you. Your service with Brambles will be recognised by Toll and any benefits you have accrued will be transferred. 5 Toll has refused to allow any sale of vehicles to proceed and has maintained a policy that under no circumstances would it engage any driver who purchased a vehicle from an existing owner/driver. 6 The fundamental issue, therefore, requiring determination in these proceedings is whether, in light of Toll's representation and subsequent refusal to allow any sale of vehicles, the contracts between the owner/drivers and Toll are, or have, become unfair. The Claim 7 The applicant, in an amended summons, contended that the contracts were unfair in that: (a) they permit the First Respondent to deny the Carriers the right to sell their trucks with their positions or with "introduction to work" in the future so that they may recover or obtain a return on the investments they have already made in purchasing their trucks with their positions or with "introduction to work"; (b) they fail to give effect to, and permit the First Respondent to depart from, the representation made by the Second Respondent to the Carriers upon the acquisition of the Brambles Transport Services business that the terms of their engagement would be no less favourable than they had been with Brambles and that the relationship the carriers had developed with Brambles would continue; (c) they deny the Carriers the legitimate expectation which they had at the time that they purchased their vehicles that they would be able to sell them together with their positions or with "introduction to work" at a time of their choosing, provided that a period of 3 years had passed; (d) they have allowed the Respondents to obtain the benefit of the required 3 year minimum engagement of the Carriers without allowing the Carriers in return to have the benefit of being able to sell their vehicles together with their positions or with "introduction to work" at a time of their choosing; (e) they invest in the First Respondent discretionary powers which the First Respondent is able to, and does, exercise arbitrarily, capriciously, unfairly, and without regard to the legitimate interests of the Carriers; (f) they allow the First Respondent to terminate the Carriers without any compensation for the losses of their investments in their trucks and positions or for the losses associated with their legitimate expectation that they would be able to sell their trucks with their positions or with "introduction to work" in the future; (g) they allow the First Respondent to unilaterally and fundamentally alter the conditions of engagement of the Carriers, to the detriment of the Carriers; (h) they allow the First Respondent to act without any regard to the value of the investments which the Carriers have made in their trucks and positions or for their (sic) the loss of their legitimate expectation of being able to sell their trucks with their positions or with "introduction to work" in the future; (i) they allow the First Respondent to act without any proper regard for the health or personal or financial circumstances of the Carriers; (j) the Carriers were at all relevant times in a position of unequal and inferior bargaining power in respect of their dealings with the First Respondent and were specifically so at times when they sought permission to proceed with sales of vehicles which they had negotiated. 8 An order was sought that each of the contracts be varied from their commencement to include the following terms: (i) The carrier shall be entitled, at any time after 3 years has elapsed since the commencement of the carrier's engagement, to sell the carrier's truck together with the carrier's rights and benefits under the Contract and the carrier's position in the First Respondent's transport fleet to a purchaser selected by the carrier and at a price agreed between the carrier and the purchaser. (ii) The First Respondent has no right to object to the acquisition by a purchaser of a carrier's truck and the carrier's rights and benefits under the Contract and the carrier's position in its transport fleet except where the purchaser is clearly and demonstrably incapable of performing the cartage work under the Contract, or except where the purchaser has previously worked as a carrier in the same yard within the last 3 years. (iii) The carrier's engagement with the First Respondent shall not be terminated unless the carrier is paid the greater of the following amounts: (a) the market value of the carrier's rights and benefits under the Contract and the carrier's position in the First Respondent's transport fleet at the time immediately before the decision to terminate was taken, or (b) $75,000. (4) Any terms of the Contracts inconsistent with the terms set out in (3) above shall be deleted or varied as appropriate. (5) An order that the Respondents be jointly and severally liable to pay each of the Carriers the amount of $75,000. (6) Further, or in the alternative, an order that the Respondents be jointly and severally liable to pay each of the Carriers such amount of money in connection with the contracts so avoided or varied as may appear to be just in the circumstances. 1989 Agreement 8 On 3 February 1989, an agreement pursuant to s 91H of the Industrial Arbitration Act 1940 was executed by Brambles - Bankstown and the applicant. The agreement was registered on 9 February 1989, Agreement No CT2 of 1989. The definition clause classifies contract carriers being another term for truck owner/drivers into two categories as follows: "Permanent" which is defined as a contract carrier that has bought his truck from either the company or a person that was permanent; "Permanent Casual" being a contract carrier who did not buy from the company or a person involved with the company. 9 Clause 2 "Continuity of Hire" provided that each owner/driver shall be given a full week's work over five days and that no casual hire vehicle shall be given preference over any permanent owner/driver (clause 2.2). 10 Clause 2.4 provided that the company agreed to a guarantee of hire "of at least 48 weeks per year and the right to stand down each owner/driver for four weeks in every year provided that such periods are in a minimum of one week at a time." Clearly, this clause was intended to ensure that a permanent driver had a substantial guarantee of work under the agreement. 11 Clause 3 provided for the painting and signage on the vehicles of permanent owner/drivers at the company's expense. 12 Clause 4 dealt with uniforms, cl 5 handling money, cl 6 fuel, cl 7 overloading. Clause 8 insurance, provided for the subcontract owner/driver to arrange insurance including third party liability to a maximum of $2,000,000 and public liability for an amount not less than $2,000,000. Clause 9 defined nominated driver which required the nominated driver of the subcontractor's vehicle to carry out the work required by the company to the standard required by it. Clause 10 dealt with duties and responsibilities of the contract carrier. 13 Clause 11 sale of vehicles provided as follows: 11.1. In the event of a Lorry Owner Driver wishing to terminate his contract with the Company, he may introduce a new Lorry Owner Driver to the Company. Provided the new Lorry Owner Driver is acceptable to the Company, then the Company, at its absolute discretion may offer work to that Lorry Owner Driver. 11.2. There is guarantee of continuity of work for any new Lorry Owner Driver engaged in these circumstances. Should any retrenchments take place then the principles of "last-on, first-off" will apply to any such Lorry Owner Driver within the section he is so engaged. These sections are: Feeder Service and Prime Movers. 11.3. Under no circumstances shall the Company be a party to any arrangements that may be entered into between Lorry Owner Drivers upon sale of vehicles. 11.4. After acceptance of new Lorry Owner Driver he will become permanent, provided he has satisfactorily completed three (3) months probationary period in which time the Company and the Owner Driver will mutually agree that they are satisfied with the Company and the Company is satisfied with them. The same entitlements as existing Lorry Owner Driver with the difference that he goes to the end of the seniority list, will apply. 11.5. The incoming Owner Driver is not permitted to re-sell until a qualifying period of three (3) years has elapsed unless there be extenuating circumstances agreeable to all parties concerned. If and when Owner Driver sells his vehicle after fulfilling the requirements of this document, he will not be permitted to buy back under this document under the period of three (3) years. 14 I will return to consider cl 11 later in these reasons. 15 Clause 12 dealt with termination of employment. Clause 12.2 set out the circumstances in which owner/drivers could be terminated, being misconduct grounds, an intention to retrench and an intention to cease trading. There was no general right to dismiss provided for under the agreement. 16 Clause 13 dealt with settling of industrial disputes; cl 14, pick up and drop off linehaul operators; cl 15 demurrage; cl 16, deductions and cl 17, variations to agreement, which provided that the "parties agree there will be no variations to the agreement other than those prescribed for rates unless: (a) two months notice of any variation is given; (b) agreement is reached between the parties to that change; and (c) such variation is formally amended in the document and ratified through the Industrial Commission." 17 Schedule 1, rates of remuneration, provided that it was expressly noted that the rates of remuneration have accounted, and include payment for wages, overtime, annual leave, long service leave, picnic day, sick leave, return on capital invested, depreciation, lease costs, registration and compulsory third party insurance, comprehensive insurance, public liability insurance, personal accident insurance, administrative overheads, fuel, oil, tyres, repairs and maintenance, and industry specific allowances. The schedule did not include any component for recovery of any amount paid by way of a premium or goodwill for the work associated with truck. 18 The term of the agreement was from 6 February 1989 until 5 February 1990. The applicant contends that under the provisions of the Industrial Arbitration Act 1940, the agreement continued past the term and submitted that there was no evidence that it had ever been terminated. Agreement for Sale of Businesses 19 On 28 June 1996, Brambles entered into an agreement for the sale of businesses to the respondents. The businesses included Brambles. Subcontractors were defined in the agreement to mean those permanent subcontractors engaged by the vendor in the businesses and the casual subcontractor arrangements, excluding those subcontractors identified as chronic workers compensation cases. It can reasonably be inferred that the definition included the truck owner/drivers. 20 Clause 10 of the agreement refers to employees and subcontractors. Clause 10.5 stated that the parties acknowledge that each of the Sub Contractors listed in Exhibit 2 of the Agreement for Sale provided services to the vendor on a subcontract by subcontract basis. Clause 10.6 stated: Following completion, the parties will notify the Sub Contractors of the sale of the Businesses to the Purchaser, and the Purchasers or the Purchaser's Guarantor will forthwith offer them engagement with the Purchaser or the Purchaser's Guarantor on the same basis as they had with the Vendor. 21 The agreement contained various Warranties made by the Vendor. Warranty 11 was headed Employees. Clause 11.1, Application to Subcontractors, provided except for Warranty 11.2, the warranties contained in cl 11 shall apply to Sub Contractors as if they were employees. Clause 11.2 Exclusive Employment, provided each employee is employed exclusively in the businesses except for those employees described as casuals alongside their names in Exhibit 2 of the Agreement for Sale. 22 Relevantly, cl 11.7, Terms of Employment of Service Agreements" provided: In this Warranty 11.7, the term "material terms and conditions of employment" includes: (i) any terms or conditions of employment whether express, implied or incorporated relating to or creating any obligation by the Purchaser to pay wages, salaries, annual leave and leave loading, long service leave, sick leave and any other remuneration, compensation or benefits projected to the Completion Date; (ii) any terms or conditions of employment whether express, implied, or incorporated relating to or creating any obligations by the Purchaser to pay severance, redundancy or termination payments to employees; and (iii) the terms of all other contracts of employment and service contracts binding the Purchaser in respect of the Employees. 23 Clause 11.8, Compliance and Obligations of the Warranty provided: (a) the Vendor has in relation to its employment of the Employees at all material times complied with all material binding, contractual, or statutory or award obligations to such Employees; (b) as at the date of this agreement and the Completion Date the Vendor will have paid or accrued all amounts due to the Employees, as wages salaries, annual leave and leave loading, long service leave, sick leave and other remuneration, compensation or benefits projected to the Completion Date. 24 Clause 11.11, No Goodwill Clauses in Sub Contractor Agreements, of the Warranty provided: To the best of the Vendor's knowledge having made due and proper enquiries, the Vendor is not a party to any contracts with Sub Contractors that provide for goodwill payments upon termination, whether on the grounds of redundancy or otherwise. 25 Warranty 13, Industrial Awards and Enterprise Agreements provided: 13.1 Awards and Agreements To the best of the Vendor's knowledge, a complete list of the Industrial Awards and Enterprise Agreements governing the employment of the Employees was provided to the Purchaser prior to the execution of this agreement. 26 It is the applicant's contention that although Warranty 13 does not seek to provide a wider definition of employees, this Warranty is intended to include the 1989 agreement. 27 The applicant's case is that under the terms of the sale agreement, the respondents were aware of the contents of the 1989 agreement, in particular, the sale of vehicle clause and had committed themselves under the sale agreement to provide engagements to the owner/drivers under the same terms that they had previously enjoyed. Letter to Owner/Drivers after Sale of Business 28 Concurrently with the purchase of the business from Brambles, Toll issued a letter dated 25 June 1996 to each of the owner/drivers which advised: Toll Holdings has signed an agreement with Brambles Australasia Limited to acquire the Brambles Transport Services business effective from 29 June 1996. The Brambles forwarding businesses have been very successful historically and there is industry wide recognition that their success is due not only to the support of their blue chip client base, but also the dedication and skill of its many hard working employees and sub-contractors. Under the sale arrangements between Toll and Brambles the terms of your engagement with Toll will be no less favourable those currently applied to you. Your service with Brambles will be recognised by Toll and any benefits you have accrued will be transferred. We look forward to welcoming you as a sub-contractor to Toll. Yours faithfully, Mark Rowsthorn Group General Manager TOLL HOLDINGS LIMITED 29 The applicant points to the third paragraph as setting out the critical representation and submits that the respondents made a representation to each of the owner/drivers that if they took up an engagement with Toll, they would be engaged in terms no less favourable than previously applied with Brambles, which the applicant says necessarily included benefits under the sale of vehicle clause. The Evidence 30 The amended summons identified nine owner/drivers as being subject to the proceedings. Four of the owner/drivers have left their engagement with Toll, being Messrs Whitton, Felice, Novack and Kouverianos. Each of these owner/drivers were unable to sell their vehicles with work because of Toll's policy of refusing to recognise "goodwill". Five owner/drivers are still working for Toll: Messrs Lamacchia, Ferriera, Kennett, D'Angelo and Marcinasko. Some of these owner/drivers operate their truck through a partnership or corporation. Mr A A Hatcher of Counsel, who appeared for the applicant, read affidavits of each of the owner/drivers who were required for cross examination. 31 Mr A Moses SC, who appeared for Toll with Mr Y Shariff of counsel, read affidavits of Mr Tim O'Brien, National Operations Manager, Toll Express Division, a trading division of Toll Transport; Mr Jamie Primmer, State Manager, Toll Express Division; Mr Rodney Walters, General Manager, Human Resources Toll Holdings; Mr Neil Pollington, General Manager, Toll Express and Mr Larry O'Regan, National Sales Manager, Toll Express Division. Each was required for cross-examination. 32 The evidence from the owner/drivers called by the applicant was largely similar. Before turning to the evidence in general, a common issue that emerged from their evidence was that the owner/drivers acted upon the assumption that the 1989 agreement set out the terms and conditions of their employment with Brambles and subsequently with Toll as a result of receiving the letter from Toll dated 25 June 1996. Contract drivers believed that the 1989 agreement would remain until the replacement of a new agreement. Some of the owner/drivers pointed to a question and answer sheet prepared by Brambles for the sale of the transport group to Toll. Question 11 was in the following terms: Q. As a Sub Contractor, what guarantees do I have for continued employment with Toll Transport? A. Toll have agreed that all existing permanent Sub Contractors will be offered continuing engagement on existing arrangements. Where formal written agreements are in place with the Transport Workers Union, those arrangements will not be amended, unless agreed by the parties. Casual Sub Contractors will continue to be engaged on the basis of work demands, which is a continuation of the existing practices. 33 The owner/driver arrangements began at the Brambles' yard (then at Marrickville and Waterloo) in 1981-1982 when Brambles sold a number of trucks to its employees on the basis that they became owner/drivers. Francis Whitton purchased a truck from Brambles for the price of $6,000. He was promised a guaranteed hourly rate and three years work. Having purchased the truck, Mr Whitton immediately resold it and purchased an updated truck costing $28,000. 34 Brambles was subsequently located at Moore Park, and then moved to Revesby in about 1987. 35 The practice of selling trucks with work began when the first of the original owner/drivers sold his truck. Brambles permitted this practice, and on occasion facilitated it, such as when a Mr Marsden was to be terminated for fighting, but after representations from the owner/drivers' delegates was permitted to "sell his truck and position." 36 Len Felice purchased a truck with work for the first time in 1986. He paid $10,000 in total to Brian Hall for his truck and "run"; the truck itself was worth about $5,000. Mr Hall informed the then Manager, Richard Russell, that Mr Felice was taking over his position, which Mr Russell approved automatically. 37 Dominic Lamacchia purchased a truck with work from Bruce Waghorn in 1987. He paid a total of $33,000, split up into $15,000 for the truck and $18,000 for the work or "goodwill". He was approved by then yard manager, Mr Nick Black, on the basis that he filled out a Brambles "Application for Employment" form and completed a probationary period of three months. 38 James Novak purchased his truck with work from Bob Haig in 1988. He paid a total of $40,000, comprised of $15,000 for the truck and $25,000 for the "goodwill". The yard manager at the time approved him virtually automatically subject to the completion of the probation period, and said: "As you know, we will guarantee the work. As for the rest of the business, it is up to you and Bob to work out". 39 The 1989 agreement largely codified existing terms and conditions of engagement of owner/drivers. It contained at clause 11 the "Sale of Vehicle" clause, set out earlier, which formalised the arrangements for the sale of trucks with work - which, as Mr O'Brien understood, was what the clause was about. The 1989 agreement remained the only document setting out the terms and conditions under which the owner/drivers were engaged by Brambles. 40 Bela Marcinasko came into the Brambles yard at Revesby in slightly different circumstances to the others. In 1989 he purchased a truck with work at United Transport (a business purchased by Brambles) at Enfield from Phillip Adam for a total of $54,000, with the truck being estimated by him to be worth about no more than $14,000. The yard manager approved this, subject to the completion of a three month probationary period. In 1992, he was offered and accepted a transfer to the Brambles' Revesby yard, on the basis that "Nothing should change just the location from where you are working". 41 Wayne Kennett purchased his truck with work from Joe Sposari in May 1990. He paid a total of $80,000, apportioned as $38,000 for the truck and $42,000 for the "business". His engagement was approved by the then manager Mr Phil Duncan, who said to him: "You are merely buying the truck not the customers. As long as you do the right thing, you will have a permanent job. I don't want to know, nor wish to know, what you are paying for the business. You are on a three-month trial basis. As long as you meet our requirements, you will have a permanent job." 42 Mr Kennett was required to fill out a Brambles' "Application for Employment" form. The application form required information on standard matters such as educational history, academic and trade qualifications, licences, previous employment, health, previous workers compensation claims, traffic accidents and convictions, preparedness to work shift work and at other locations, and referees. Mr Tim O'Brien gave evidence that it was the matters contained in this Brambles' application form which constituted the criteria for approval for the offering of work to an incoming owner/driver under the Sale of Vehicle provision (clause 11.1) of the 1989 agreement. 43 Nick Kouverianos purchased his truck with work in early 1991 from Ross Pappagorgiou. He paid a total of $65,000 for a truck which he estimated was worth only about $5,000 - $10,000 at the time (it was 11 years old with timber floors and the gates were not in good condition). He was required to fill out the standard "Application for Employment" form, which was approved by Phil Duncan. Mr Duncan told him that he was now "permanent" after a three month probation period. 44 There was evidence of numerous other sales of trucks with work in the Brambles' yard involving owner/drivers other than those the subject of this matter. 45 Victor D'Angelo purchased his truck with work from Len Felice in 1992. The total agreed price was $65,000, agreed to be broken down as $25,000 for the truck and $45,000 for "goodwill"; there was a later discount of $1,000 in respect of certain truck repairs that needed to be carried out. Mr D'Angelo was interviewed by Mark Hilton, then either Branch or State Manager. Mr Hilton said to him: "I don't want to know how much you paid. It's got nothing to do with us, that's between you and Len. I just want to interview you to see if you are suitable for the job." Mr Hilton also told him about the three month probation period. Mr D'Angelo was required to fill out the standard Brambles' "Application for Employment" form, which was approved by Mr Hilton. 46 In the middle of 1993 Mr Tim O'Brien became Operations Manager at the Revesby Depot, and subsequently became Branch Manager in the middle of 1995. After he became Branch Manager, he familiarised himself with the 1989 agreement. He understood from the terms of the 1989 Agreement, the practice in the yard and his previous employment experience with TNT that: (a) existing owner drivers would sell their trucks to new owner drivers; (b) the new owner driver would take the position at Brambles of the previous owner driver from whom he had purchased the truck; (c) the new owner driver would receive a guarantee of work - initially just a general guaranteed of continuity of work over 48 weeks per year, and from about 1995-6 a specific guarantee of 50 hour work per week; (d) the new owner driver would be classified as a permanent owner driver (as distinct from a permanent casual owner driver, who did not have the benefit of these guarantees); and (e) that the right to sell a truck in these circumstances would attract a price that the owner driver could never get simply by selling the truck in a truck yard – i.e. a higher price. 47 The evidence discloses and I find that Mr O'Brien knew, at all relevant times, that the owner/drivers had the capacity to sell their trucks "with work" at Brambles and that this meant that the truck would attract a premium above the value of the truck as a piece of mechanical equipment - which is colloquially known in the industry as "goodwill". 48 Carlos Ferreira purchased his truck with work from Charlie Hanly in about July 1995 (Mr Joe Loulach, then a forklift driver, now Toll's Fleet Controller, had earlier considered buying it, but did not proceed because of an injury). Mr Ferreira paid Mr Hanly a total of $60,000, apportioned at $5,000 for the truck and $55,000 for "goodwill". Mr Ferreira's evidence was that he was required to meet with Mr O'Brien, who said to him: "Welcome aboard, let's hope you're here as long as Charlie was. Do the right thing and you will have a job for life. Do the wrong thing and you risk losing a lot of money". Mr O'Brien, in his evidence, agreed that he said the first two sentences of the above, that he was not sure whether he said the third sentence, but could not deny it. Mr Ferreira filled out the standard "Application for Employment" form, which was approved by Mr O'Brien 49 Len Felice bought a truck with work at Brambles for the second time in or around September/October 1995. He paid a total of $75,000 to Bill Pearson, which was broken up into $8,000 for the truck and $67,000 for "the position". Mr Felice was required to sign the standard Brambles "Application for Employment" form, which was approved by Mr Hilton. 50 During 1995/1996, Brambles and representatives of the owner/drivers began negotiations for a new agreement to replace the 1989 agreement. In the course of these negotiations, Mr O'Brien, on behalf of Brambles, requested a variation to the Sale of Vehicle clause giving Brambles first option to buy if any owner/driver decided to leave. Mr O'Brien's evidence was that he said at a negotiation meeting that: "We are concerned that you are trading your positions with detrimental effect to incoming contractors and we cannot always guarantee work to incoming contractors unless we can justify it on business needs." 51 No agreement was reached about this, because the owner/drivers wanted a formula by which the price at which Brambles could exercise the option could be identified. They made it clear that this would not be just truck value, but based on average annual earnings. Brambles did not agree to this. Agreement was reached on a number of other issues, such as the implementation of a 50 hour work guarantee. However, no agreement overall to replace the 1989 agreement was reached. 52 In June 1996, the respondents purchased Brambles Transport Services. The owner/drivers were told by Brambles (Larry O'Regan) that upon the sale taking effect, nothing would change and business would carry on as usual. 53 Toll conducted a due diligence process before the Sale Agreement was executed. Toll was given access to a "data room" by Brambles which contained documents relating to the sale including "industrial agreements and contracts between Brambles and its workforce". Mr Walters, who was involved in the due diligence process on behalf of Toll, said that he specifically "reviewed contract carrier documents disclosed in the data room". Mr Walters could not recall whether he had seen the 1989 agreement during the due diligence process, nor could he say whether or not other persons involved on behalf of Toll may have seen it. Mr Walters accepted that a reading of the "Sale of Vehicle" clause of the 1989 Agreement would give rise to a concern about liability for goodwill. 54 Mr Walters made further enquiries about the goodwill of Mr Jim Reardon, the General Manager of Brambles. Mr Reardon went "on loan" to Toll for a period after the sale occurred. Mr Reardon said he was not aware of any goodwill arrangements in the businesses being sold, but when Mr Walters pressed him for a categorical assurance, Mr Reardon refused to give it, saying "Rod, you know the industry. I couldn't do that. Things happen that I may not be aware of". Mr Walters said (in cross-examination) that Mr Reardon's statement gave him concern and that he did not treat it as a sufficient answer. Mr Walters also disclosed in cross-examination that he communicated to either Mr Rowsthorn, the General Manager, or Bernard McInerney, the company secretary, that there had not been a complete assurance as to goodwill, and that he asked that there be a warranty "that there are no arrangements". Mr Walters made no further enquiries about goodwill of anyone at Brambles, of any operations manager, of the owner/drivers themselves, or of the TWU. 55 Under the Sale Agreement the respondents: (a) were required to engage the owner drivers on the same terms and conditions upon which they had been engaged by Brambles; (b) were to be supplied with all industrial agreements which applied to Brambles' workers; and (c) received a warranty from Brambles that it was not subject to any agreement under which it had to pay goodwill upon termination of the engagement of any owner driver, but received no other warranty with respect to goodwill or the sale of trucks with work. No complaint was ever made by Toll that Brambles failed to comply with the requirement to make all industrial agreements available. It is clear that the warranty received was not that which Mr Walters had asked for, but in very limited terms. 56 It can be inferred that the statement made by Mr O'Regan referred to above reflected the terms of the sale agreement. 57 Each of the owner/drivers was sent a letter dated 25 June 1996 from Mr Mark Rowsthorn, the Group General Manager of the second respondent containing the representation set out earlier in their reasons. 58 This letter was drafted by Mr Walters. He drafted the letter knowing that Mr Reardon of Brambles had refused to give a categorical assurance about goodwill. 59 This representation was generally taken by the owner/drivers as meaning that Toll would honour all existing arrangements, including the 1989 agreement and its Sale of Vehicle clause, and gave them comfort in agreeing to be engaged by Toll. But for the representation, Mr Novak would have looked for a buyer before Toll came into the business. Mr Kennett would have instituted legal proceedings against Brambles to recover "the loss of goodwill". 60 The respondents also sent a letter to each of the owner/drivers dated 26 June 1996 signed by Peter O'Brien, Financial Controller for the second respondent which contained the following representation; "We look forward to continuing the relationship which has been developed between Brambles Transport Services and yourselves to our mutual benefit." 61 At the time of its purchase of Brambles Transport Services businesses, Toll had an (unwritten) policy that it did not recognise goodwill or permit the sale of trucks with goodwill. The respondents have conceded that they did not inform the owner/drivers of this policy at the time the above representations were made and that the owner/drivers would not have known of that policy at the time they chose to accept engagement with Toll. The evidence made this completely clear in any event. 62 A number of Brambles personnel working at or with responsibility for the Revesby yard went over to employment with Toll after the takeover, including Mark Hilton, Tim O'Brien, Larry O'Regan and Joe Loulach. 63 Leaving aside the "Sale of Vehicle" clause, Toll conducted its relations with the owner/drivers on the basis of the provisions of the 1989 agreement. For example: (a) it continued the practice of requiring the owner drivers to stand down for four weeks each year, consistent with of the 1989 Agreement. (b) when other owner drivers were moved by Toll into the subsequent Smithfield yard, they were put on the same conditions derived from the 1989 Agreement. (c) the issue of repainting of trucks was debated between Mr D'Angelo and Mr Primmer on the basis of the terms of the 1989 Agreement. (d) the "nominated driver" requirement of the 1989 Agreement were still applied after Toll took over the business and (e) public holidays continued to be paid if the days before and after were worked. 64 Negotiations for an agreement to replace the 1989 agreement continued after the Toll takeover. Mr O'Brien, who initially led the renewed negotiations together with Mr Pollington, continued to propose in discussions in 1999 that the Sale of Vehicle clause remain but with Toll having the first option to buy and with the guarantee of continuity of work for the incoming owner/driver being removed. This was still based on a concern about the owner/drivers trading their positions with detrimental effect upon incoming owner/drivers. When the issue of goodwill was directly raised by the owner/drivers at one meeting, Mr Pollington said "I don't know anything about that. Mr O'Brien did not at any subsequent time tell Mr Pollington what he knew about this subject, nor did Mr Pollington ask him. At a subsequent meeting with Mr Maurie Tattle, the General Manager of Toll Express, Mr O'Brien learnt for the first time of Toll's unwritten policy as to "goodwill". Mr O'Brien understood that this policy, which prohibited the sale of trucks at more than "market value", was completely different position than that which applied at Brambles. 65 In 1999, the Revesby yard was moved to Smithfield (and was combined with another previous Toll yard). 66 In late 1999, an owner/driver who had come across from Brambles, Bill Wyres, found a buyer for the sale of his truck and work. Toll refused to allow the sale to go ahead on the basis that "Toll doesn't recognise goodwill and won't let anyone sell with goodwill". Mr Pollington confirmed that this refusal reflected Toll's policy on goodwill. 67 In 2000, Mr Primmer and Mr Pollington renewed the negotiations. Mr Primmer sought that the "Sale of Vehicle" clause which appeared in the 1989 agreement not be part of any new agreement. During the course of the negotiations, Mr Pollington said when the goodwill issue was raised: "We want to exclude goodwill, pending a legal outcome". He meant by this that he wanted to exclude it entirely from the agreement being negotiated, which meant that the Sale of Vehicle clause that had been in the 1989 agreement would not be contained in it. However, the owner/drivers continued to press for the inclusion of that Sale of Vehicle clause the benefit of which they had enjoyed when working for Brambles. 68 Mr Pollington maintained Toll's position about goodwill and sale of vehicles in the negotiations notwithstanding that the owner/drivers made him aware of the 1996 representation which Toll had made. He admitted that Toll's approach in not affording the owner/drivers the benefit of a "sale of vehicle" clause in the same or not less favourable terms than under the 1996 agreement constituted a departure from its 1996 representation to the owner/drivers. He further admitted that, in subsequently proposing an agreement which positively prohibited the sale of trucks with goodwill, Toll was proposing terms and conditions of engagement less favourable than those which had applied to the owner/drivers at Brambles. He also gave the following curious evidence in cross-examination. Q. For Toll to adhere to the representations it made it would have had to provide the owner drivers with a sale of vehicle clause which was not less favourable than that which applied to Brambles. Correct ? A. I was not there at that point and that is why we sought the legal opinion. Q. Did the legal opinion clear your doubt about the subject ? A. No. Q. It didn't ? A. I suppose that is why we are here. It can be inferred from that evidence that firstly, Toll had the benefit of legal advice in relation to the 1996 representation and what it meant in terms of the 1989 "Sale of Vehicle" clause and secondly, that the legal advice did not clearly support its position. Toll maintained its position nonetheless. 69 In about 2001, Mr Perry Drakopoulos, one of the owner/drivers who had come across from Brambles, indicated that he had found a buyer for his truck and position who was prepared to pay $95,000 in total, with the truck said to be worth about $20,000. Two meetings were arranged to discuss the sale, each of which was attended by Mr D'Angelo, Mr Lamacchia and Mr Pollington. At the first meeting, Mr Pollington said: "He won't be allowed to sell out for ninety five thousand dollars. We will see about letting him sell for truck value only." However, at the second meeting, Mr Pollington said that Toll would not let Mr Drakopoulos to sell even just for truck value. Mr Drakopoulos subsequently decided to take a position as a Toll company position because his truck was getting old and he was not permitted to sell. 70 Mr Whitton was transferred to Toll Tasmania (a different division of the first respondent) in July 2001. In 2000 or 2001 (i.e. at or before this time), he reached an agreement with a friend named Chris to sell his truck with work to him at a total price of $130,000, with Mr Whitton's estimate at the time being that the truck was worth about $38,000. He then (on his evidence) rang Mr O'Brien and informed him that "I've got a buyer for the truck", to which Mr O'Brien replied "Bring him up and introduce him to us and we will see what happens". However, Chris subsequently obtained information that Toll would not allow the sale, and this was confirmed by Mr O'Brien when Mr Whitton rang him about the matter. Mr O'Brien denied this conversation occurred however, Mr Whitton was unshaken in cross-examination about this matter and was emphatic that the conversation occurred. It is of course consistent with Toll's approach about the matter. Consequently, the sale did not proceed. I am inclined to prefer Mr Whitton's evidence and to deal with Mr O'Brien's evidence on the basis of a failure of his recollection. 71 In late 2001 or early 2002, the owner/drivers engaged an industrial relations agent, Mr Derek Graham, to assist to find a resolution with Toll with respect to the issue of selling trucks with work. He was unsuccessful. 72 In about March 2003, Mr Felice's wife was diagnosed with cancer, requiring him to take time off work. She died in January 2004, leaving Mr Felice responsible for the care of his three sons. He reached an agreement with Louis Borg to sell his truck with work for a total of $95,000, made up of $24,000 for the truck and $71,000 for "goodwill". Together with Mr Borg and Mr D'Angelo, he then had a meeting with Jamie Primmer to obtain approval for the sale. The evidence of Mr Felice and Mr D'Angelo was that Mr Primmer refused to allow the sale to go ahead. Mr Primmer's affidavit evidence was slightly different, in that he sought to characterise what he said as a refusal to offer Mr Borg any work as a subcontractor; however Mr Pollington made it clear that Mr Felice's proposed sale was in fact blocked by Toll because of its policy that trucks could not be sold with goodwill or work. Given his family responsibilities, Mr Felice was forced to leave the Toll yard in July 2004 (when Toll had his truck painted white). He sold the truck to an acquaintance in August 2004 for $30,000 (having updated his truck in 1998. 73 In the course of the discussion about Mr Felice's proposed sale of his truck with work, Mr D'Angelo made Mr Primmer aware of the terms of the Toll representation of 25 June 1996. Mr Primmer said: "I don't know what this means". 74 In 2004, Mr Novak determined that his engagement with Toll had become economically unavailable because his truck was costing too much to maintain and keep on the road. He did not try to sell his truck with work because he knew of Toll's refusal to let Bill Wyres and Perry Drakopoulos sell their trucks and positions. He sought a position as a Toll company driver, and in the course of doing this had a meeting with Mr Primmer in which he explained his position. Mr Primmer denied that this meeting occurred, but there is no apparent reason why Mr Novak would make this up, so that it is likely that Mr Primmer has also had a failure of recollection. Mr Novak ceased to be an owner/driver in August 2004. Toll sought to have Mr Novak execute a deed of release which contained provisions excluding any liability on the part of Toll for goodwill, but Mr Novak refused to do so. 75 The TWU accessed the dispute resolution procedures of the Commission in an attempt to resolve the goodwill issue on two occasions in 2003 and 2004. The Commission made two recommendations, neither of which served to resolve the dispute. 76 In the course of 2005, Mr Primmer sought to renew negotiations for a new agreement. He advanced a draft agreement which contained a clause expressly prohibiting the sale of an owner/driver's truck with goodwill. It was no accepted by the owner/drivers. 77 In December 2005, Mr Whitton was forced to retire from work due to his wife's ill health. He sold his truck for $15,000. He did not have the opportunity to sell his truck with work. 78 In March 2006, Mr Kouverianos fell off his truck and injured his back. He returned to light duties, but was eventually terminated by Toll in February 2007 because of his incapacity to work. He was not given an opportunity to sell his truck with work once it became clear that his injury prevented him from performing his full duties an as owner/driver. 79 In about 2007, Toll transferred its Depot from Smithfield to Eastern Creek. 80 Toll's evidence was that it currently holds the position, which it adopted in about 1999, that it would prefer to not to engage any new owner/drivers, because of the perceived operational advantages of employee drivers in company trucks. However, the matters raised in support of this proposition do not rise above the level of assertion and were shown to have little substance in cross-examination. The cross-examination of Mr Pollington ended with the following exchange, which revealed that the company's position that it did not want to engage any new owner/drivers was in reality based on its goodwill policy, not any genuine operational reasons: Q. If you say you are prepared to engage X owner driver until say he retires, say in 20 years time, there is no operational reasons, if you are prepared to do that, why you couldn't engage Y owner driver who steps into X's shoes for the same period of time ? A. There is no operational reason why that wouldn't happen but the company policy would dictate that it doesn't happen. Q. And so this gets back to the policy of goodwill, does it ? A. Yes. Q. Which is what all this boils down to at the end of the day ? A. It certainly does. 81 Tax returns tendered on behalf of the owner/drivers indicate the level of earnings of the owner/drivers over recent years. The respondents contend that the tax returns establish that "each of the carriers received substantial income whilst engaged by the respondents" and that they were able to organise their tax and financial affairs in a "manner that was most beneficial to them" (while not suggested to be illegitimate). The applicant accepts that as a reasonable general summary of the position, subject to some owner/drivers having particular issues with their truck costs (such as Mr Novak). Consideration 82 The principal issue for determination is whether there were in existence unfair contracts or arrangements within the meaning of s 106 of the Act which requires the making of orders in favour of the owner/drivers, and if so, the quantification of those orders. 83 The applicant submitted that the contracts between Toll and the owner/drivers who had previously been engaged by Brambles were unfair because they did not contain terms which reflected or were consistent with the representation made by Toll to the owner/drivers and, in particular, did not contain a sale of vehicle clause which the contracts should have contained if the representations were to be made good by Toll. 84 The respondents submitted that the amended summons should be dismissed because the applicant had not identified any relevant unfairness in the terms of the impugned contracts. Secondly, the primary grounds of unfairness pleaded by the applicant were not capable of giving rise to jurisdiction to grant the relief sought. Thirdly, the claimed relief does not relate to the performance of work. Fourthly, there is no probative evidence before the Court to support the specific orders sought. Fifthly, as a matter of law, the Court cannot vary the contract between the first respondent and Transco Holdings Pty Ltd (Mr Novack), because Transco Holdings Pty Ltd has been deregistered and sixthly, the Court should not grant the relief sought as a matter of discretion. I propose to deal with each of these grounds in turn. 85 The gateway to the exercise of the jurisdiction under s 106 of the Act is that a contract or arrangement be identified where work is performed in an industry and such contract is found to be unfair. In Virtue v New South Wales Department of Education and Training (1999) 92 IR 428 at 449, Wright J, President, in an orthodox application of well settled principles held: For relief to be available or granted under s 106 there must be, logically or sequentially, the following steps: (1) a finding that the contract (as defined in s 105) is an unfair contract (also as defined in s 105 but also as elaborated in s 106(2)); (2) an order that the contract be declared wholly or partly void, or varied, pursuant to s 106(1); (3) an order as to the payment of money in terms of s 106(5) and subject to the terms of that provision. See, for example BNY Australia Limited v James & Anor (1992) 40 IR 1 at 2, 27, 36-38, 54-55. 86 These principles have essentially been accepted by the Court of Appeal which has held that it is an indispensable step for the Court to decide the terms of the impugned contract: T D Preece & Co Pty Ltd v Industrial Court of New South Wales & Anor [2008] NSWCA 285 at [10] - [14]; Alliance Motor Auctions Pty Ltd v Industrial Relations Commission of New South Wales (2005) 146 IR 99 at [20]; see also Fish & Another v Solution 6 Holdings Limited (2006) 225 CLR 180 at [19]. 87 In Fish v Solution 6 Holdings Ltd, Gleeson CJ, Gummow, Hayne, Callinan and Crennan JJ stated at [36] - [41]: [36] The competing contentions about the construction of s 106 of the Act turned upon three intersecting elements of the provisions of that section and the definition of the term "contract" used in s 106. First, what is the significance of the reference, in the definition of "contract", in s 105, to an "arrangement"? Secondly, what is the significance of the reference, in that definition, to "any related condition or collateral arrangement"? And, thirdly, what is meant by "any contract whereby a person performs work in any industry"? [37] These three questions must be answered paying due regard to the breadth of the definition, given in the Act, to "industry". "Industry" is defined in s 7 of the Act as including "any trade, manufacture, business, project or occupation in which persons work". But recognising that this definition is very wide, the three questions identified earlier must be answered. [38] The juxtaposition of reference to "contract" and "arrangement" in the definition of "contract" requires the conclusion that the defined term includes more than obligations enforceable at law. Yet that is a conclusion that does not appear to sit easily with the Commission's powers being to avoid or vary a contract. How is an "arrangement" that is not legally binding to be avoided or varied? [39] What is meant by reference, in the definition of "contract", to "any related condition or collateral arrangement"? Why does that reference not require the identification of every contractual obligation and every non-contractual arrangement that is related one to another? Why is the whole of that interlocking web of obligations and arrangements not then subject to the Commission's powers under s 106 so long as any of those obligations or arrangements meets the criterion "whereby a person performs work in any industry"? [40] The answers to these questions are to be found in two considerations. The first is to recognise that when s 106 speaks of "any contract whereby a person performs work in any industry", the expanded meaning given to the term "contract" must be read into s 106. When that is done, it is apparent that the "contract", no matter whether it is a legally enforceable contract, an unenforceable arrangement, a related condition, or a collateral arrangement, must meet the description "whereby a person performs work in any industry". [41] The second consideration was mentioned earlier in these reasons and is not unrelated to the first. Performance of work in an industry is the hinge about which s 106 turns. It is the arrangements (contractual and non-contractual) whereby a person performs work in an industry that the Commission may avoid or vary. That is, it is the arrangements (contractual and non-contractual) according to which a person performs the work (or in consequence of which or in fulfilment of which a person performs that work) which may be avoided or varied. And although the notion of "avoiding" an arrangement that is not enforceable may be awkward, determining that some new arrangement will obtain for the future (thus "varying" the arrangement) presents no such awkward juxtaposition of ideas. Further, to focus attention upon the arrangements whereby a person performs work in an industry, no matter whether the arrangement is found in the contract the parties have made or only in some related condition or collateral arrangement, sufficiently meets the need, identified by Barwick CJ in Brown v Rezitis [38], to recognise that these provisions of the Act have, as one important purpose, dealing with subterfuges which take workers outside the operation of industrial instruments intended to protect workers in an industry. At the same time, to read s 106 as hinged about performance of work in any industry and empowering the Commission to deal only with such of the arrangements between parties as can be described as a contract whereby a person performs work in any industry confines the jurisdiction of the Commission to declare a contract void or to vary it within bounds that leave intact the jurisdiction of the Supreme Court over other kinds of contractual obligations. 88 What was said by the High Court in Fish, of course, needs to be modified by the subsequent enactment of s 106(2)A of the Act which provides: A contract that is a related condition or collateral arrangement may be declared void or varied even though it does not relate to the performance by a person of work in an industry, so long as: (a) the contract to which it is related or collateral is a contract whereby the person performs work in an industry, and (b) he performance of work is a significant purpose of the contractual arrangements made by the person. 89 This amendment was considered by a Full Bench of the Court in Caterpillar of Australia Ltd v Gough & Gilmore Holdings Ltd (2008) 170 IR 185. At [97] the Full Bench referred to the judgment of the Court of Appeal in Sin Yong Yim & Tae Sik Kim v Industrial Relations Commission of NSW & Hyun Sung (Marco) Choi [2007] NSWCA 77 in which Spigelman CJ explained why s 106(2)A was introduced as follows at [70] - [72]: [70] The new s106(2A) was directed to this Court's reasoning that the context of the legislative scheme confined the power under s106(1) to aspects of a contract or arrangement which are "closely relate[d] to the performance of work" ( Solution 6 supra at [80] and [83]) or which relate in some reasonably direct manner to the performance of work (at [87]). The reformulation of the test in Solution 6 in the High Court differs from this formulation. [71] Clearly s106(2A) is a new element which must be included in the context to which the High Court had regard when interpreting the reference to the performance of work as "the hinge" of the jurisdiction. [72] This matter has not been fully argued. The case can be determined without considering the Claimants' alternative argument. Anything this Court would say would be obiter. The matter was not raised before the Industrial Court and this Court should not, as a matter of comity, consider the alternative basis on which the Claimants rely. 90 The Full Bench then referred to the Second Reading Speech introducing s 106(2)A (at [98]) and stated at [99]: The effect of s 106(2A) was significant because, in permitting collateral contracts which did not relate to the performance of work in an industry to fall within the Court's jurisdiction, it overcame the limitations of s 106(1) in which the power to declare void or vary a contract or arrangement was held to be limited only to those parts of the contract or arrangement that were closely related to the performance of work in an industry, see Solution 6 at [95], McDonald's at [66], [81] to [84]. 91 The respondents contend that the issue of the sales of trucks with work is a type of collateral arrangement which was not part of the contract by which work was performed in an industry and therefore cannot be the subject of a remedy in this Court. In my view, this characterisation is misconceived. The evidence is that the terms of the 1989 agreement, with the exception of the sale of vehicles provision, was carried over into the individual contracts of the owner/drivers and Toll. Taken together with the evidence as to the work performed by the owner/drivers pursuant to their contractual arrangements with Toll, in my view, the contracts were directly and intimately connected to the performance of work in the Road Transport Industry. Particularly, this seems to be the case when regard is had to the nominated driver provisions in the contracts. It directly involved either the owner/driver personally or, where the owner/driver was some legal entity, some principal person of the owner/driver's entity being directly involved in the performance of work pursuant to the requirements of Toll. 92 Mr Hatcher correctly, in my view, submitted that, in any event, the sale of vehicle clause was, even considered independently, intimately connected with the performance of work because, just like a notice clause, or termination clause, it determines a benefit or a set of arrangements beneficially to owner/drivers to operate when their work comes to an end. It follows, in my view, that there is a direct relationship made out and it is therefore unnecessary to have regard to the provisions of s 106(2)A. If I am wrong about this characterisation, s 106(2)A would operate to allow, in any event, a remedy to operate. 93 It was common ground that the 1989 agreement did not, as an industrial agreement in force under the relevant statute at the time, transmit to Toll upon the sale of the business by Brambles to Toll. It is trite law that a legally binding contract may be proved by what the parties said and did, as well as what they wrote: Air Great Lakes Pty Ltd v K S Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309, McHugh JA at 337 - 338. The evidence discloses that each of the owner/drivers understood and operated on the basis that the terms of the 1989 industrial agreement continued to operate as between them and Toll. There was no written contracts entered into between Toll and the owner/drivers. This is therefore a case where the terms of the contract need to be inferred from the dealings between the parties. 94 On 28 June 1996, Brambles entered into an agreement for the sale of business to Toll Holdings Pty Ltd and Toll Transport Pty Ltd. Clause 10.6 of the sale of business agreement provided that Toll would engage the owner/drivers on the same basis as they had been engaged with Brambles. Toll forwarded a letter to each of the owner/drivers on 25 June 1996, which stated that "under the sale arrangements between Toll and Brambles, the terms of your engagement with Toll will be no less favourable (than) those currently applied to you". Toll recognised the service of the owner/drivers with Brambles and acknowledged that any benefits they had accrued would be transferred. This letter was drafted by Mr Walters who, at the time, was the Human Resources/Employee Relations Manager with Toll and had been involved in Toll's acquisition of Brambles as part of Toll's due diligence activities in respect of this issue. In respect of this aspect of the matter during the course of the proceedings, Mr Moses made the following concession: That it will be conceded by the respondent that at the time the carriers were provided with the pro forma letters that was set out in paragraph 8 of this witnesses evidence [Mr Walters] being the letter of 25 June 1996, there was no disclosure to the contract carriers that Toll had a policy on goodwill and the sale of goodwill and that the representation contained in that letter did not avert to that issue and the carriers wouldn't have known about Toll's policy at the time they made their decision, either expressly or by implication to come on board with Toll. 95 I therefore find that the terms of the individual contracts between Toll and the owner/drivers are inferred contracts which contain the same terms as those found in the 1989 agreement with the exception of cl 11, the Sale of Vehicle clause, which in light of the evidence and Toll's policy at the time could not objectively be inferred as being part of Toll's policy which meant that it could never have made a contract which contained a sale of vehicle clause and by its conduct it has never acquiesced in such a provision being part of its agreement with its owner/drivers. An alternative characterisation, which I am not attracted to because of Toll's conduct, is that cl 11 was incorporated into the owner/drivers contracts but that Toll used its discretion to refuse to allow any sales to occur. The evidence prevents me finding that Toll exercised its discretion for approval with respect to individual owner/drivers because it adopted a blanket policy in which no sales of vehicles could occur under any circumstances whatsoever. It follows that I must reject Mr Moses' urgings that any deviation from the terms of the 1989 industrial agreement in relation to the question of "sale of vehicles and goodwill" arose in 1999, at which time the alleged sale of goodwill was refused. 96 I turn to consider whether the contracts between the owner/drivers and Toll were unfair. It will be recalled that the applicant contends that the contracts were unfair because they did not contain terms which reflected, or were consistent, with the representation made by Toll to the owner/drivers that the terms of their engagement would be no less favourable than those applying at Brambles. However, such contracts did not contain a sale of vehicles clause, which they should have, if the representations were to be made good by Toll. The evidence establishes that the sale of vehicles practice was in place, known by Brambles, and formally acknowledged and agreed to between Brambles and the owner/drivers and was included in a registered industrial agreement. The sale of vehicle clause clearly conferred valuable rights on the owner/drivers, that being a capacity to effect what in substance, if not in law, resulted in an assignment of their position of contractual rights with Brambles. Brambles had a discretionary right of approval in respect of an assignment which was exercised by reference to the specific personal characteristics of the owner/driver but not by some reference to a broader policy in respect of goodwill. 97 Toll undertook a due diligence process in respect of the sale. Although Mr Walters said that he had a particular concern about goodwill and any liability thereof, in my view, the steps he took to investigate whether it existed at Brambles were totally inadequate. Mr Walters could not recall seeing the 1989 agreement which contained the sale of vehicle provision but was unable to deny that he had seen it. He acknowledged that other persons involved in the sale process may, or may not, have seen the 1989 agreement and accepted that someone with his knowledge and experience upon reading cl 11 would give rise to a concern in respect of a liability regarding goodwill. When pressed by Mr Riordan for a categorical assurance in respect of goodwill, Mr Walters declined to give such an assurance. Mr Walters in cross-examination said that Mr Riordan's statement refusing to give a categorical assurance that he was not aware of any goodwill arrangements at Brambles caused him concern and that he did not treat it as a sufficient answer. Mr Walters also disclosed in cross-examination that he communicated to either Mr Rowsthorn, the General Manager, or Mr McInerney, the Company Secretary of Toll that there had not been a complete assurance as to goodwill and he asked that there be a warranty that there were no such arrangements. Mr Walters made no further enquiries about goodwill of anyone at Brambles or any Operations Manager, or the owner/drivers themselves, or the TWU. 98 It is beyond doubt that had further enquiries been pursued it would have become clear that there was an authorised practice at Brambles under which sales of trucks with goodwill or a position in the yard occurred. In my view, and I find, that Toll had actual or imputed knowledge of the sale of vehicle practice at Brambles in light of the existence in the industrial agreement of a sale of vehicles clause and the value of the rights conferred by that clause and the resulting premiums that were paid. Toll either knew, or should have known, what the practice was at Brambles in respect of the sale of vehicles, particularly as both Mr O'Brien and Mr Hilton, who were aware of the sale of vehicles practice, were engaged by Toll in equivalent management positions to those that they had at Brambles. In my view, there is no basis to conclude that Toll was unaware of the sale of vehicles practice. It is against this background that Toll made the representation to the owner/drivers. Even assuming that the representation was not intentionally falsely made, in light of the evidence, it was made recklessly or negligently given the lack of assurances given to Mr Walters. 99 Furthermore, although the issue of goodwill was clearly a significant matter, Toll chose not to disclose its policy in respect of goodwill to the owner/drivers. A further aspect of unfairness was that the owner/drivers in 1996 were clearly in an inferior bargaining position in respect of Toll as Brambles had sold its business. Toll had purchased the business so that the owner/drivers were in a position whereby, if they wanted to keep their jobs and retain the hope of selling their trucks with work in the future, they were required to accept Toll's offer. Toll's conduct, particularly in light of the representation, no doubt, gave them comfort that if they accepted a position with Toll on their existing terms and conditions, including the ability to sell their vehicle with work, their arrangements would be maintained and protected. The result was that they did not sell their trucks and were engaged by Toll. Furthermore, they did not take any legal action against Brambles at the time, nor did they need, in their view, to take steps to negotiate contracts with Toll which might have in express terms protected their positions. Toll strictly maintained its policy on goodwill notwithstanding the representation it made and notwithstanding that it recognised the disparity between its own conduct, its policy in respect of goodwill and the representation it made. This policy was strictly adhered to, regardless of individual owner/drivers circumstances, such as those that Mr Felice found himself in when his wife passed away. Toll refused to alter its policy in respect of goodwill. 100 To the extent that the respondent contended that the applicant did not submit that clause 11 was unfair, it is unnecessary to deal with this submission in light of the findings that I have made that the contracts were unfair in that they excluded clause 11, despite the representations made to the owner/drivers at the time of the sale of business. Similarly, for the same reason, it is unnecessary to deal with the respondents' challenge to jurisdiction that the primary grounds of unfairness amount to allegations of a breach of contract and therefore the principles found in Sydney Water Corporation Ltd and Another v Industrial Relations Commission of NSW and Another (2004) 61 NSWLR 661 applied. Indeed, the respondents' evidence went so far as to deny that Toll had any contractual obligations to maintain the sale of vehicle arrangements. 101 In my view, Toll's purchase of the business from Brambles, and dealing with the owner/drivers as it did, allowed it to obtain a most substantial commercial windfall, which, measured in terms of the last sales of a truck in work which occurred in the 1990s (which ranged from $45,000 through to $67,000), was worth in total, approximately $600,000. 102 Of the nine owner/drivers who were engaged by Toll, for various circumstances, four have left the engagement with Toll and have been denied the opportunity to sell their trucks with work. The applicant seeks that their contracts should be declared void and monetary orders made in their favour. In respect of the remaining owner/drivers who are still engaged with Toll, the applicant seeks that their contracts be varied, as set out earlier in these reasons at [7]. In effect, the applicant seeks to resurrect, with appropriate protections, the sale of vehicle arrangements which operated at the time Brambles ran the business. This would allow the remaining owner/drivers to sell their trucks with work at an appropriate time and retain whatever price they could achieve on the market. 103 Toll strongly opposes such an order, submitting that it would operate unfairly and prejudicially against the respondents. Mr Moses submitted such an order would force Toll to forever permit (into perpetuity) "a trade in goodwill", even if it does not for operational reasons wish to engage owner/drivers. Senior counsel submitted that the Court should not sit in the managerial chair and force a corporation to operate its business in a manner which is clearly against its present operational intentions. Toll has not engaged any owner/drivers for a period of over a decade and the proposed variation would force Toll to alter its operational arrangements. Toll would also be forced to accept, as an owner/driver, any new person, subject only to the qualification that the person be able to perform cartage work and who had not previously worked in the yard. 104 In my view, Toll either knew, or should have known about the pre-existence of the sale of vehicle practice. The existence in the industrial agreement of a sale of business clause and the value of the rights conferred by that clause, resulted in premiums being paid when purchasing a truck with work. The position adopted by both Brambles and Toll in respect of the sale of vehicle practice gave both parties an unconscionable advantage over the owner/drivers. Toll, in not disclosing their practice of not recognising the sale of trucks with goodwill to the owner/drivers, resulted in both Brambles and Toll ignoring the investments which the owner/drivers had made in their vehicles to the detriment of the owner/drivers. Toll unconscionably departed from the representation which it had made that the owner/drivers would enjoy the same conditions as they had with Brambles. The benefit that Toll obtained was the services of the owner/drivers through a smooth transmission of the business on a totally false basis. In these circumstances, the owner/drivers should be compensated for what they were denied, that is, the right to sell their trucks with work in circumstances which were not lost to them. In considering a somewhat similar set of circumstances, Hungerford J in a separate judgment agreeing with Fisher CJ and Peterson J in Myer Stores Limited, t/as Grace Bros v Stowart and Others (1994) 55 IR 21 observed at 38 - 39. ... It is worth repeating, I think, the words of Sheldon J as to s 88F of the repealed Industrial Arbitration Act 1940 as the statutory predecessor of s 275, in Davies v General Transport Development Pty Ltd [1968] AR NSW (371)at 374: " it is a plain matter of morals not law ." To a like effect, Beattie J said of s 88F in Agius v Arrow Frankways Pty Ltd [1965] AR (NSW) 77 at 88: "... it is plainly designed to protect citizens from unfair and harsh dealing". 105 His Honour then referred to what Lord Mansfield said in Browning v Morris (1778) 2 COWP 790 namely: "... of protecting one set of men from another set of men, the one from their situation and condition, being liable to be oppressed or imposed upon by the other". I wish to state my agreement with these observations. Noting that the evidence discloses the owner/drivers paid varying amounts for goodwill, it does not seem to me to be appropriate that the applicant's claim that each owner/driver be awarded $75,000.00 for goodwill should be granted in the circumstances where each owner/driver has paid a different amount for goodwill. 106 Taking these factors into account in the exercise of my discretion, I do not propose to make the variations sought by the applicant to the contracts. However, in light of my finding that the contracts have operated harshly and unconscionably, the owner/drivers should be compensated for the loss of their rights to sell the trucks, or the goodwill component of their truck, by way of monetary order in the same manner as those that have already ceased their engagement with Toll. 107 In respect of the quantum of compensation, the loss for which a restitution order is sought, Mr Moses referred to the comments of Bauer J in Thomas Nationwide Transport Ltd (t/as "Altrans Bulk") v Thomas & Anor (1990) 34 IR 378 at 384 where his Honour stated: There is no place in s 88F cases (a predecessor to s 106), as I see them, for a "concept of damages", or "solatium", or "loss of expectations" of profits or similar notions. Restitution seems to be the maximum that might be ordered to be paid and that only provided such a discretion is exercised having regard to the circumstances as is required by s 88F(2). 108 The Full Bench in Westfield Holding v Adams (2002) 114 IR 241 considered the question of whether, in determining compensation orders, reliance should be placed on the doctrine restitution in order to avoid excessive award or awards that did not adequately compensate an aggrieved applicant. After considering, in particular, the comments of Barwick CJ in Brown v Rezitis (1970) 127 CLR 157 (at 164, 170) and earlier decisions of this Commission's predecessor, the Full Bench stated at paragraphs [101] - [102]: Restitution may be an appropriate approach where a franchisee has paid money for a franchise and the contract has been found to be unfair. But restitution, as a basis for compensation, is rarely relevant to contracts of employment found to have operated unfairly. We do not think that Brown v Rezitis mandates an approach to the assessment of compensation under s 106(5) on the basis that restitution in the sense referred to, is to be the fundamental guiding principle. Restitution so understood may be appropriate in particular cases, but the fundamental guiding principle is that which is stated in the statute itself, namely, what is just in the circumstances of the case. In any event, the term restitution is at once ambiguous and a word of wide meaning. As Mason and Carter observe in their now standard text, Restitution Law in Australia , Butterworths, 1995 at 7: "Where a legal order is made, there must not only be a point of reference for the order, there must be an objective. This is also a relative concept. The theme common to bases for legal liability is a process of adjustment. Here the ordinary senses of restitution are somewhat ambiguous, since restitution may refer to compensation for loss, or payment for a benefit, or restoration to a prior position or status." ... thus providing confirmation, if any were necessary, of the importance of adhering to the actual words of the statute. As for the proposition propounded by the appellant that it is only "actual loss" that is to be compensated under s 106(5), we fail to see how that can be derived from Brown v Rezitis . There were two elements in the formulation laid down by the Chief Justice in Brown v Rezitis. The first was restitution and the second was to "make remedial provision for what has taken place or been done under the contract in the meantime". It seems to us that this is a broader test than one that requires compensation for actual loss. We note the phrase used by Menzies J in Brown v Rezitis (at 170) where he referred to the requirement to "... recompense the worker for what he has lost". There is nothing, however, in the judgment of Menzies J to indicate that he regarded the power to make money orders under s 88F(2) as limited to compensation for actual loss. 109 It is the value of the capacity to sell a truck with work to an acceptable person at a price that the buyer is prepared to pay that has to be determined. Much criticism was made by the respondents' of the lack of probative evidence given by the owner/drivers in respect of the value of goodwill. I accept that the evidence given in respect of the value of goodwill, as at today's value, is worthless. However the evidence of what the owner/drivers paid for their trucks with work (goodwill) at the time of purchase is of probative value. Although similar applications have not approached the determination of quantum as an accounting exercise, but approached the question of quantum by having regard to what, in terms of history of the industry persons were prepared to pay, such an approach seems to me to be inappropriate in this case as the last sales were in the 1990s: see for example Myer Stores v Stowart & Ors; Darren John Palmer v TNT Australia Pty Ltd, Hungerford J, unreported, 15 March 1995; Zammit and Another v Trend Windows & Doors Pty Limited [2008] NSWIRComm 48; Transport Workers" Union of New South Wales (on behalf of Cruickshank Transport Pty Ltd) v Stegbar Pty Ltd [2007] NSWIRComm 244. 110 An examination of decisions of this Court and its predecessor determining truck and work cases disclose that the amount paid for goodwill was discounted in circumstances where the owner/driver enjoyed the benefit of above-award wages for some 18 months before they lost the benefit of the contract: Bradib Pty Ltd v Jilly Bean Pty Ltd & Anor (No 1) (1987) 21 IR 90. A similar approach was applied in Altrans by Bauer J and by Hungerford J in Darren John Palmer v Tnt Australia Pty Ltd (Trading As Tnt Express) [1995] NSWIRComm 243; [1995] NSWIRC 24 (15 March 1995). In Transport Workers' Union (on behalf of Steve Cincotta t/as S M Cincotta Pty Ltd and others) and Visy Board Pty Ltd [2005] NSWIRComm 178, the Contract of Carriage Tribunal affirmed that due regard must be paid to the earnings and profits derived by owner/drivers over a substantial period. In Myer Stores Ltd v Stowart, a matter with a not dissimilar background to this matter, the Full Bench upheld Cullen J's decision to award compensation on the basis of the value of the last truck sold in the yard. This decision was made in the context of Myer Stores outsourcing its entire transport services to Linfox, such that Linfox took the whole benefit of those contracts in a manner that was held to be unconscionable. 111 The respondents submitted that the Court ought to take into account the substantial earnings received by the owner/drivers over a long period and the fact that the existing owner/drivers are free to remain working for the first respondent, as long as they wish to do so, subject to their performance. It submitted a variation to make provision for a liquidated amount for goodwill of $75,000, or any amount, would be entirely at odds with the long line of authority commencing with Bradib. It was also submitted that such a decision would be at odds with what had been said by the Contract of Carriage Tribunal in Transport Workers' Union v Stegbar, where the Tribunal held that a premium income of $117,00 per annum should be amortised over a reasonable period of time with the amortised amount taken up annually as an expense against the business, thereby gaining the subsequent taxation concessions available for the business. In this way, the premium gradually decreases over the years of expected engagement and would ideally be zero when the contract ends, the Tribunal observed. 112 One of the difficulties in this case in determining quantum is that the last sales occurred in the 1990s, when the premium or goodwill price ranged from $45,000 to $67,000. More recently, owner/drivers were able to find prospective purchasers of their vehicles, including goodwill, but because of Toll's policy, such sales were not completed. The evidence discloses Mr Drakopoulos was offered $75,000, Mr Felice $71,000 and Mr Whitton, approximately $90,000, although Mr Whitton had a much larger truck, being a semi-trailer. However, as I have already observed, this evidence is worthless. The determination of quantum has been impeded by the failure of the applicant to call accountancy evidence. Doing the best I can, therefore, the approach that I propose to adopt amounts, in my view, to a proper assessment of compensation. My determination is that each of the owner/drivers should receive, by way of compensation for goodwill, the amount that they initially paid for the goodwill, or where such a figure is not available, the average of what was paid by all the owner/drivers. In reaching this conclusion that the owner/drivers should be compensated by the amounts they paid for goodwill, I have been mindful that the value of money has changed since the 1990s. However, this determination seeks to take into account that the owner/drivers have received reasonable earnings over a significant period of time and some of the owner/drivers will continue to receive such earnings as long as they wish to remain with Toll. It follows that I do not find that an averaging approach as submitted by Mr Hatcher is appropriate. This would result in the following compensation to be paid to the owner/drivers: · Mr Victor De Angelo $45,000.00 · Mr Wayne Kennett $42,000.00 · Mr Bill Marcinasko $40,000.00 · Mr Dominic Lamacchia $18,000.00 · Mr Nick Kouverianos $56,500.00 (being the average of what he contended he paid for goodwill) · Mr Carlos Ferreira: $55,000.00 · Mr James Novack $25,000.00 · Mr Len Felice $67,000.00 · Mr Francis Whitten $43,562.00 (being the average of the total amount paid by all the owner/drivers in respect of goodwill). 113 Mr Moses submitted that in the event that I found in favour of the applicant, no order could be made in respect of James Novack, whose business was incorporated in 2002 as Transco Holdings Pty Ltd, because the evidence before the Court was that Transco had been deregistered. Mr Moses submitted that proceedings cannot be maintained by or on behalf of a company that is deregistered: Mikhail Distribution Services Pty Ltd v Australia Post [2004] NSWIRComm 235. Senior counsel submitted that there was no basis upon which the Court could vary a contract where one party no longer exists, nor could it award compensation to a non-existent party. 114 The amended summons pleaded that the first respondent engaged James Novack (initially directly, and from 2002, through his family company Transco Holdings Pty Ltd), as a carrier in its Toll Express business at Smithfield until August 2004, when it was agreed that his contract with the first respondent would be varied so that he would work as an employee/driver, rather than as a carrier. On the face of the pleadings, Mr Novack and Transco Holdings Pty Ltd were the contractual parties. It can be inferred that the first respondent permitted an assignment from Mr Novack to Transco Holdings in 2002. The respondents, in their reply to the amended summons, admit that the first respondent received the services of Mr Novack as a sole trader until 2002 and from 2002 received Mr Novack's services as a contract carrier through Transco Holdings Pty Ltd in its Toll Express Division until about August 2004, when Mr Novack and the first respondent agreed that Mr Novack would be employed as an employee driver. 115 It seems to me that it is clear that there is a contract before the Court which, until 2002, had Mr Novack as a party. That contract I have found to be unfair on the basis that it did not contain a provision consistent with the representation made in 1996. 116 In any event, a review of the authorities makes clear that the fact that a company is deregistered is no impediment to the making of an order with respect to Mr Novack. In Visalli v Southwell and & Ors (1988) 12 NSWLR 502, the Court of Appeal considered the jurisdiction of the Commission to order the joinder of parties to proceedings before it. Kirby P (McHugh JA agreeing) observed at 507: The jurisdiction of the Industrial Commission to make an order or award under s 88F of the Act does not depend, in terms of that section, upon the presence before the Commission of particular parties. The Commission's jurisdiction attaches if it is shown that there is a "contract or arrangement or any condition or collateral arrangement relating thereto whereby a person performs work in any industrial [...]. The power of the Commission to make an order or award for the payment of money is one expressed by s 88F(2), in wide terms. It is not limited, in the language of the subsection to the parties before the Commission. All that is required is that the payment should be made "[...] in connection with any contract, arrangement, condition or collateral arrangement declared void [...]". That said, there are necessarily other restraints upon the making of orders against persons no parties. They include the requirement of natural justice, that before any such order should be made affecting or purporting to affect a person, such a person should have the opportunity to be heard: see Brown v Resitis (1970) 127 CLR 157 at 164. 117 Priestly JA, at 511 stated: There is no restriction in the section [s 88F] limiting the persons who may be the subject of orders made under it. It is settled that the operation of the section is not limited to persons who are in law the parties to the contract or part of which is in question in an application under the section. Any person who can reasonably be thought to have a real connection with the contract is within the Commission's jurisdiction under the section. 118 The making of monetary orders or other orders is not confined to the parties to the contract but can be extended to anyone with a real connection with the contract. That extends not only to the person to whom orders may be made against but also to a person in favour of whom the order is made. In my view, the fact that Transco Holdings is deregistered is not an impediment to the making of an order in respect of Mr Novack. The real connection is clear. 119 Firstly, Mr Novack was a person who performed actual work during the course of the contractual engagement. Secondly, evidence tendered by the respondent (the Australian Securities and Industries Commission search) identifies Mr Novack prior to the deregistration of the company as a director and shareholder. Mikhail stands for nothing more than if a person or entity is deceased or does not exist, it cannot be a party to proceedings. In Mikhail, Marks J dealt with a strikeout application in circumstances where, prior to the commencement of proceedings, the sole director of the applicant, Mikhail Distribution Services Pty Ltd, took steps to have the applicant deregistered. This meant that at the time the proceedings were commenced, the applicant did not exist as a legal person. Not surprisingly, his Honour held that the proceedings were a nullity and struck them out. 120 The same position does not obtain with respect to a contract for which an entity which no longer exists applies where the entity is neither the applicant or some other party to the proceedings. In Alexander Stuart Liddon v James Leslie Comino [2007] NSWIRComm 136 Haylen J found that the deregistration of a company which is a party to the contract, only endangers the proceedings as a whole where the company is an applicant to the proceedings. It does not serve as an impediment to a company that is deregistered for relief being granted in respect of a contract of which that company was a party. Kavanagh J came to a similar conclusion in Jeffery Search & Anor v Prominade Properties Pty Ltd t/as SAS Marketing and Ors [2001] NSWIRComm 86. This case also demonstrates that where a party to a contract is deregistered, that does not preclude relief being granted in respect of the contract. I respectfully agree with their Honours' reasoning. 121 The respondents have requested that the issues of interest and costs be reserved and that the parties have liberty to apply in respect of these matters following judgment. The proceedings will be listed for a directions hearing at 9.30 am on Monday 20 April 2009 so that the parties may be heard in relation to these issues. ORDERS 122 The Court makes the following orders and declarations: 1. The contracts entered into between the owner/drivers and the respondents on or about 1996 are hereby void ab initio save as to the payments of any monies pursuant to the said contracts. 2. The contracts or arrangements between the owner/drivers or former owner/drivers listed below and Toll Transport Pty Ltd and Toll Holding Pty Limited whereby the owner/drivers performed work in the Transport Industry were unfair. The owner/drivers or former owner/drivers are Francis Whitten, Leonard Felice (t/as L & N Felice, Dominic Lamacchia (t/as D & E Lamacchia), James Novack (whose business was incorporated in 2002 as Transco Holdings Pty Ltd) R & B Marcinasko Pty Ltd, WL Kennett (t/as WL & LM Kennett), Nick Kouverianos (t/as N & N Kouverianos), Victor D'Angelo, Carlos Ferreira (t/as C & D Ferreira). 3. Toll Transport Pty Ltd and Toll Holdings Pty Ltd are to pay each of the owner/drivers as referred to order 2, the following amounts: · Mr Victor De Angelo $45,000.00 · Mr Wayne Kennett $42,000.00 · Mr Bill Marcinasko $40,000.00 · Mr Dominic Lamacchia $18,000.00 · Mr Nick Kouverianos $56,500.00 · Mr Carlos Ferreira $55,000.00 · Mr James Novack $25,000.00 · Mr Len Felice $67,000.00 · Mr Francis Whitten $43,562.00 ____________ 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.