Toll Transport Pty Ltd v Transport Workers' Union of New South Wales [2010] NSWIRComm 58

Industrial Court of New South Wales

CITATION: Toll Transport Pty Ltd v Transport Workers' Union of New South Wales [2010] NSWIRComm 58

Toll Transport Pty Ltd (First Appellant) PARTIES: Toll Holdings Pty Ltd (Second Appellant) Transport Workers' Union of New South Wales (Respondent)

FILE NUMBER(S): IRC 801 of 2009

CORAM: Boland J President at [1]; Walton J Vice-President at [22]; Kavanagh J at [34]

APPEAL - Unfair contract - Owner/drivers - Refusal by successor company to allow sale of truck with work - Whether there was a promissory representation by successor company to owner/drivers that was intended to induce them to provide their services on the basis that the terms of their engagement would be no less favourable than those that applied to them under the previous owner of the business - Whether contracts between owner/drivers and successor company contained terms that provided for the sale of truck with work - Whether conduct of successor company in refusing to allow sale of truck with work caused contracts to be unfair - Whether refusal was a breach of contract and not amenable to relief under unfair contract provisions of Industrial Relations Act 1996 - Whether primary judge erred in finding that contracts between owner/drivers and successor company did not contain terms that provided for the sale of truck with work but nevertheless determined contracts were unfair - Remitter - Whether there was a sufficient basis upon which the Full Bench could determine whether or not the relevant contracts were unfair and to proceed to determine compensation and interest issues - Whether the contracts were relevantly connected to work in the road transport industry - Finding that proceedings did not involve breach of contract - Majority decision to remit to determine whether contracts unfair CATCHWORDS: UNFAIR CONTRACT - Appeal - Owner/drivers - Refusal by successor company to allow sale of truck with work - Whether there was a promissory representation by successor company to owner/drivers that was intended to induce them to provide their services on the basis that the terms of their engagement would be no less favourable than those that applied to them under the previous owner of the business - Whether contracts between owner/drivers and successor company contained terms that provided for the sale of truck with work - Whether conduct of successor company in refusing to allow sale of truck with work caused contracts to be unfair - Whether refusal was a breach of contract and not amenable to relief under unfair contract provisions of Industrial Relations Act 1996 - Whether primary judge erred in finding that contracts between owner/drivers and successor company did not contain terms that provided for the sale of truck with work but nevertheless determined contracts were unfair - Remitter - Whether there was a sufficient basis upon which the Full Bench could determine whether or not the relevant contracts were unfair and to proceed to determine compensation and interest issues - Whether the contracts were relevantly connected to work in the road transport industry - Finding that proceedings did not involve breach of contract - Majority decision to remit to determine whether contracts unfair