Industrial Relations Commission of New South Wales CITATION: Transport Workers' Union of New South Wales v. First Choice Freight Services Pty Limited [2007] NSWIRComm 1082 APPLICANT Transport Workers' Union of New South Wales PARTIES: RESPONDENT First Choice Freight Services Pty Limited FILE NUMBER(S): IRC 905 of 2006 CORAM: Connor C CATCHWORDS: industrial dispute - contract drivers - underpayment of remuneration - contract determination - small claim for recovery of remuneration - order made LEGISLATION CITED: Industrial Relations Act 1996 Dima Homes Case (1989) 5 AILR Rep 4 General Pants (Trading) Company Pty Limited v. Marie - unreported CASES CITED: Grimshaw v. Dunbar (1953) 1 All ER 350 Lonergan v. Molloy (1914) AR 189 Maldoc Pty Limited v. Bollard - unreported Transport Workers' Union of New South Wales v. First Choice Freight Services Pty Limited [2007] NSWIRComm 1018 HEARING DATES: 29/10/2007 EXTEMPORE JUDGMENT DATE : 29 October 2007 APPLICANT Richard Olsen Trransport Workers' Union of New South Wales LEGAL REPRESENTATIVES: RESPONDENT No appearance DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Monday, 29 October, 2007 Matter No IRC 905 of 2006 Transport Workers' Union of New South Wales and First Choice Freight Services Pty Limited Dispute notification under S.332 of the Industrial Relations Act, 1996 re underpayment of entitlements of contract drivers DECISION [2007] NSWIRComm 1082 Background 1 Pursuant to the provisions of Part 4, Dispute Resolution, of Chapter 6, Public Vehicles and Carriers [S.332], of the 1996 Industrial Relations Act the Transport Workers Union has lodged a notification of an industrial dispute with First Choice Freight Services Pty Limited. The TWU has claimed that investigations have led it to believe that First Choice is not paying the courier drivers it engages under the appropriate State instrument regulating contract drivers - either the Transport Industry - General Carriers Contract Determination or the Transport Industry - Courier and Taxi Truck Contract Determination. First Choice argued that no contract determination applied to its contract drivers at all. 2 The matter was the subject of proceedings before me. All of those proceedings were convened in the Commission's premises at 90 Crown Street, Wollongong over a lengthy period of time - Monday, 27 February, 2006, Monday, 27 March, 2006, Tuesday, 18 April, 2006, Monday, 5 June, 2006, Wednesday, 14 June, 2006, Monday, 4 September, 2006, Monday, 9 October, 2006, Monday, 23 October, 2006, Monday, 20 November, 2006. Ultimately, I programmed the matter for arbitration. The TWU had ultimately formed the view that the Courier and Taxi Truck Contract Determination did not apply to the work performed by contract drivers engaged by First Choice. It continued to claim that the General Carriers Contract Determination remained applicable to that work, however. 3 First Choice denied coverage of its contract drivers of any contract determination and claimed that it was excluded from the General Carriers Contract Determination by virtue of an exemption clause in that contract determination [Clause 2(1)(vii)], viz: "Contracts of carriage to which the Transport Industry - Couriers and Taxi Trucks Contract Determination ...applies. Provided that where a principal contractor enters into contracts of carriage in the course of operating what may be called a taxi truck service and where the vehicle used by the contract carrier to execute such contracts of carriage does not exceed 4.5 tonnes carrying capacity, the principal contractor shall apply the said Transport Industry - Courier and Taxi Truck Contract Determination to the exclusion of this Determination only if such contracts of carriage are by their nature, principally 'courier and taxi truck work' as defined in Clause 1, Definitions, of this Determination." 4 A hearing of that threshold jurisdictional issue, ie whether or not the General Carriers Contract Determination covered the work of the First Choice contract drivers, was originally scheduled for Monday, 27 February, 2007 but those proceedings were vacated at the request of the parties and adjourned until Tuesday, 27 March, 2007. In those proceedings, Mr Aird represented the TWU and Mr Matters represented First Choice. 5 In my preliminary decision of Thursday, 19 April, 2007 I concluded that the General Carriers Contract Determination did apply to the work of the First Choice contract drivers, commenting (at p.7) as follows: "...I am satisfied that, consistent with what Mr Aird indicated in his submissions was the wishes of the parties to the General Carriers Contract Determination in the first place, the correct interpretation of Clause 2(1)(vii) does not assist Mr Matters at all. The proviso in Clause 2(1)(vii) appears to me to, in a sense, act as an exclusion for certain classes of contract drivers or a qualification from the exemption which would otherwise take couriers and taxi truck drivers outside the General Carriers Contract Determination and into the Couriers and Taxi Truck Contract Determination. If the proviso operates at all on its own it simply acts to bring the work of the First Choice contract drivers back under the General Carriers Contract Determination. If it is accepted that the Courier and Taxi Truck Contract Determination does not apply to First Choice's operations - and that is the agreed position between Mr Aird and Mr Matters in this hearing - then to my mind it must inevitably follow that, in the light of the fact that none of the other exceptions in Clause 2 apply, the General Carriers Contract Determination must cover the work performed for First Choice by its contract drivers. Simply stated, if it is not one thing, it must be the other! The proviso in Clause 2(1)(vii) qualifies the exclusion of contract couriers from the General Carriers Contract Determination: it does not take such work outside that Contract Determination but rather brings it back in..." 6 I adjourned the proceedings again for mention on Monday, 14 May, 2007, Monday, 25 June, 2007 and Monday, 30 July, 2007 to determine what further action was required with respect to it. I would have expected that, in the light of my preliminary decision of Thursday, 19 April, 2007 and the fact that no appeal was lodged over it, any remaining issue in dispute between the TWU and First Choice would have been resolved speedily without the need for further arbitration. That has not been the case. There was no appearance by Mr Matters or any other representative of First Choice in the proceedings on Monday, 30 July, 2007 and Mr Cooke, the representative of the TWU in the proceedings at that time, requested that I programme the matter for arbitration. I set the matter down for that hearing on Monday, 29 October, 2007. I made directions for the filing of any evidentiary material but indicated that I would proceed ex parte on Monday, 29 October, 2007, if that was necessary. 7 In the hearing on Monday, 29 October, 2007, Mr Olsen represented the TWU. There was no appearance on behalf of First Choice in the hearing. Mr Matters appeared in the proceedings on Monday, 14 May, 2007 and sought, with the consent of the TWU, a period of two weeks to discuss with First Choice the options available and he undertook to again contact the TWU with a view to settling the matter. According to Mr Olsen, he has not done so. Nor has any material been provided to me in response to the evidentiary material supplied by the TWU for these proceedings in response to my directions. I therefore propose to proceed to determine the matter remaining in dispute ex parte. 8 What is essential in such a case is some evidence to support the contention that the respondent was aware of the proceedings. In the Dima Homes Case (1989) 5 AILR Rep 4 the Full Bench of the former State Industrial Commission (Bauer J, Varnum DP and Sheils CC) commented in compulsory conference proceedings taken under the S.25AA of the 1940 Industrial Arbitration Act (the comparable provisions to Ss.379 and 380 in the 1996 Act) that: "…the only essentials are proper and fair notice and sufficient particulars to regulate the decision making process…" 9 I am satisfied that there has been fair and proper notice to First Choice that this long outstanding matter was to proceed to determination on Monday, 29 October, 2007. Formal notice of that hearing was mailed to its representative (Mr Matters) and confirmation of that hearing was also provided by e-mail. Mr Olsen still carries the onus of establishing the substance of the TWU claim in this hearing - to use the words of the Full Bench in the Dima Homes Case, to provide to me "...sufficient particulars to regulate the decision making process...". In its unreported decision of Thursday, 8 September, 1994 in General Pants (Trading) Company Pty Limited v. Marie [Matter No. IRC 3123 of 1993] the Full Bench of the Commission (Fisher P, Schmidt J and Murphy CC) commented (at p.18) that the employee in that case: "…had still to discharge the onus placed on her by the Act…" 10 The question remains essentially one of natural justice. A party to any action is prima facie entitled to have it heard in his presence. He is entitled to dispute his opponent's case, cross-examine any of his opponent's witnesses, call his own witnesses and give such other relevant evidence before the court. If by some mischance or accident a party is shut out from the right and an order is made in his absence, common justice demands, so far as can be given effect to without injustice to the other party, that the litigant who is absent should be allowed to come to court [Grimshaw v. Dunbar (1953) 1 All ER 350 at p.355]. But that does not mean that this long outstanding matter may remain unresolved, and the TWU claim be frustrated, simply by the failure of the respondent to appear in the proceedings when proper notice of them has been given to it and it has chosen to ignore that notice. I believe that the TWU has been very patient but it is now appropriate to bring this matter to a conclusion on such evidence as is available to me in this hearing. The Claim 11 The TWU is pursuing its claim under Ss.379 and 380 in these S.130 proceedings, ie as a small claim, on behalf of two of its members formerly engaged by First Choice, Mr Geoff Brown and Mr Brett Millanta. In particular, S.380(1) provides as follows: "An industrial organisation may, during any proceedings before the Commission, make an application for an order under this Part and for the application to be dealt with under S.379 (small claims procedure)." 12 That remedy is available only to an "industrial organisation", ie the TWU in these proceedings - a position that has been confirmed by the Full Bench of the Commission (Glynn and Hungerford JJ and Connor C) in its unreported decision of Wednesday, 10 February, 1999 in Maldoc Pty Limited v. Bollard [Matter No. IRC 2710 of 1997]. The maximum amount of any order for a small claim is confined by S.379(3); it presently stands at $20,000.00 for each individual person on whom a claim is made. By virtue of S.343(j) the small claims jurisdiction is extended to contract determinations under Chapter 6. 13 Mr Olsen called Mr Brown and Mr Millanta to confirm the brief written statements they had provided as their evidence. I summarise that evidence as follows: * Mr Brown originally traded under the name of Gefro Pty Limited when he performed work for First Choice. Gefro has now been wound up. Mr Brown was engaged by First Choice from early 2002 until the middle of 2005. The contract rate under which he was engaged was set at $1050.00 per week of five days - Monday to Friday. He commenced work at 5.30am and concluded work 5.30pm, with 30 minutes for lunch on most days. He would have deliveries in the mornings and in the afternoons he would pick up freight from customers. He estimated that each day he travelled 100 kms. *Mr Millanta originally traded under the name of Millanta Transport Pty Limited when he performed work for First Choice. Millanta Transport has since been wound up. He was engaged by First Choice from the middle of 2003 until the middle of 2005. The contract rate under which he was engaged was set at $1100.00 per week of five days - Monday to Friday. Like Mr Brown, he commenced work at 5.30am and concluded work 5.30pm, with 30 minutes for lunch on most days. Also like Mr Brown, he would have deliveries in the mornings and in the afternoons he would pick up freight from customers. He estimated that each day he travelled 200 kms. 14 The TWU has based its claim on the kilometres travelled by Mr Brown and Mr Millanta and it is in accordance with the vehicle rate prescribed in the General Carriers Contract Determination, contrasting it with the contract rate under which Mr Brown and Mr Millanta actually worked for First Choice. According to those calculations First Choice owes Mr Brown and Mr Millanta respectively the sum of $19,914.75 and $19,937.55, ie just inside the $20,000.00 limit for a small claim under Ss.379 and 380. Conclusion 15 Insofar as the General Carriers Contract Determination covers the type of work performed by Mr Brown and Mr Millanta - and my preliminary decision of Thursday, 19 April, 2007 confirms to my satisfaction that it does - then it has "common rule" application and requires compliance by First Choice. Parties covered by the General Carriers Contract Determination are bound by it quite independently of any contracts that they actually make. Any such contracts that they conclude between them which produce rates of remuneration inferior to it, therefore cannot stand [Lonergan v. Molloy (1914) AR 189]. That is the case for both Mr Brown and Mr Millanta. The contracts that they completed with First Choice produce for them a rate of remuneration substantially below the rate prescribed in the General Carriers Contract Determination. 16 On the basis of the evidence before me and the calculations made by the TWU, the claims the TWU has made on behalf of Mr Brown and Mr Millanta appear to me to be genuine. I propose to conclude these proceedings by making the following orders: ORDER 1. First Choice Freight Services Pty Limited shall pay to: (a) Mr Geoff Brown the sum of $19,914.75; and (b) Mr Brett Millanta the sum of $19,937.55, within 21 days. 2. This order shall take effect on and from Monday, 29 October, 2007. P J CONNOR Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.