Industrial Relations Commission of New South Wales CITATION: Transport Workers' Union of New South Wales v. Chand's Transport Services [2010] NSWIRComm 1009 APPLICANT Transport Workers' Union of New South Wales PARTIES: RESPONDENT Chand's Transport Services FILE NUMBER(S): IRC 1733 of 2009 CORAM: Connor C CATCHWORDS: industrial dispute - transport industry - alleged underpayment of wages - small claim - challenge to jurisdiction - status of the employer as either a sole trader or a corporation - conclusion that the employer is a sole trader - claim considered to be within jurisdiction - proceedings to continue Annual Leave Act 1944 Federal Workplace Relations (Work Choices) act 2005 Federal Fair Work Act 2009 LEGISLATION CITED: Federal Fair Work Amendment (State Referrals and Other Measures) Act 2009 Industrial Relations Act 1996 Long Service Leave Act 1955 Long Service Leave (Metalliferous Mining Industry Act 1955 State Industrial Relations (Commonwealth Powers) Act 2009 CASES CITED: Maldoc Pty Limited v. Bollard - unreported State of New South Wales v. Commonwealth of Australia (2006) 156 IR 1 HEARING DATES: 19/02/2010 EXTEMPORE JUDGMENT DATE : 19 February 2010 APPLICANT Phillip Boncardo Transport Workers' Union of New South Wales LEGAL REPRESENTATIVES: RESPONDENT no appearance DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Friday, 19 February, 2010 Matter No IRC 1733 of 2009 Transport Workers' Union of New South Wales and Chand's Transport Services Notification under S.130 of the Industrial Relations Act, 1996 re alleged unpaid entitlements PRELIMINARY DECISION [2010] NSWIRComm 1009 The Issue 1 On Wednesday, 4 November, 2009, acting pursuant to the provisions of S.130 of the 1996 Industrial Relations Act, the Transport Workers' Union of New South Wales lodged a notification of an industrial dispute with Mr Suresh Chand, trading as Chand's Transport Services. The TWU alleges underpayments to its member, Mr Lenny Edwards, employed by CTS under the terms of the Transport Industry (State) Award. The matter was allocated to me and I set it down for a conference on Wednesday, 11 November, 2009. There was no appearance by CTS. I adjourned the proceedings until Wednesday, 2 December, 2009, Thursday, 10 December, 2009, Thursday, 17 December, 2009 and Wednesday, 13 January, 2010. 2 The TWU has calculated Mr Edwards' entitlements, including interest, as $3,630.35. It has mounted its claim on behalf of Mr Edwards as a small claim under Ss.379 and 380. 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)." That remedy is available only to an industrial organisation recognised under the State IR Act, ie the TWU in these proceedings. That position was 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. 3 Conciliation has failed to settle this matter. I issued the certificate of attempted conciliation required by S.135, lodged it in the prescribed manner and programmed it for arbitration. Initially, there is an issue of jurisdiction concerning the status of CTS first raised by a solicitor representing it in the proceedings before me on Thursday, 17 December, 2009. That threshold issue was set down for hearing on Friday, 19 February, 2010. 4 The solicitor representing CTS asserted that it is a trading corporation within the meaning of S.51(xx) of the Commonwealth Constitution and, as such, by virtue of the 2005 Federal Workplace Relations (Work Choices) Act and the 2009 Federal Fair Work Act which replaced it, the TWU claim on behalf of Mr Edwards was beyond the jurisdiction of the State Commission [State of New South Wales v. Commonwealth of Australia (2006) 156 IR 1]. The TWU had argued that CTS was, in fact, a sole trader and, consequently, outside the provisions of Work Choices or the Federal FW Act. As I outline later in this decision, the identification of CTS's true status raises jurisdictional issues of some complexity at the present time. 5 Mr Boncardo represented the TWU in the preliminary hearing on Friday, 19 February, 2010. He called Mr Edwards and Mr Greg Selig, a TWU organiser, to give evidence in the proceedings. Mr Chand did not appear in the hearing. The solicitor who had formerly represented Mr Chand in the hearing announced his appearance in the hearing but he did so as a courtesy to me and there remained some doubts as to whether he was in a position to make any submissions on behalf of Mr Chand. The solicitor had written to me on Friday, 12 February, 2010 outlining the difficulties he had experienced in obtaining instructions from Mr Chand and to inform me that he was, in fact, unsure whether he was still representing him, viz: "....We have sought but not obtained instructions to act for CTS with respect to the proceedings. We have given certain advice to CTS with respect to the hearing appointed for Friday, 19 February, 2010 of the claim of CTS that the Commission does not have jurisdiction with respect to the proceedings. On Wednesday, 10 February, 2010 we received a telephone call from Mr Chand notifying that CTS would let us have the documents and information we had requested, including a written retainer signed on behalf of CTS before he left to go to Fiji on Thursday, 11 February, 2010. He also said to us that CTS would submit to the jurisdiction of the Commission on the basis that the Commission has had since Friday, 1 January, 2010 jurisdiction to hear claims against constitutional corporations. He asked us to arrange for the jurisdictional hearing appointed for Friday, 19 February, 2010 to be cancelled and the appointment of another date for the hearing of the TWU claim on its merits. We said we would endeavour to do these things as soon as we received the documents and information we had requested. We asked when he would return from Fiji. He said Thursday, 4 March, 2010. We asked Mr Chand to let us know telephone and fax numbers and an e-mail address which we may use to contact him whilst he was in Fiji. We did not receive the documents and information. On Thursday, 11 February, 2010 we called Mr Chand's mobile number...but received the message that it was '...turned off and try again later...'. We called the number again to-day and received the same message. We then called Mr Chand's home number and recorded a message indicating that we wished to speak to him urgently. It is regrettable that Mr Chand did not make appropriate arrangements regarding the proceedings before leaving to go to Fiji. We respectfully request that the Commission make the orders requested by Mr Chand on behalf of CTS. Mr Chand has informed us that the TWU claim is false and that he and his two sons...would give evidence to the Commission with respect to the defence of the TWU claim. We expect, but cannot guarantee that CTS will engage us to assist it and to appear for it at any hearing on the merits of the TWU claim. If so, we expect that the statements of evidence to be filed and served for CTS could be filed and served by Friday, 19 March, 2010. We note that the statement of evidence for Mr Edwards has been served..." I appreciate the position confronting Mr Chand's solicitor but his letter does not give me any real confidence that he will continue to represent him. And the assurances that the solicitor has actually made, purportedly on behalf of Mr Chand, that he has abandoned his jurisdictional argument, are qualified to the extent that I do not know whether the solicitor continues to speak on his behalf. I have heard nothing independently from Mr Chand. 6 In those circumstances, the TWU's response was to be expected. It wrote to me on Friday, 12 February, 2010 that it would not consent to the adjournment of the proceedings, viz: "...The union further intends to proceed with its claim that Chand Transport Services is not a constitutional corporation and therefore respectfully seeks that the jurisdictional hearing set for Friday, 17 February, 2010 not be vacated and proceed as scheduled, ex parte if necessary. The respondent was obviously made aware of the directions set by the Commission at the last hearing, and at no stage did the respondent indicate to the Commission that they would be overseas and therefore not able to comply with those directions..." The TWU sought to have the matter re-listed prior to Friday, 17 February, 2010 in order to clarify the position further. I was not able to arrange for those earlier proceedings. 7 But neither was I prepared to abandon the proceedings. The hearing on the jurisdictional issues proceeded ex parte as the TWU proposed in its letter. I note from the letter of Friday, 12 February, 2010 by Mr Chand's solicitor that he understands that Mr Chand is no longer pursuing his jurisdictional argument but he is apparently doing so on the basis of an argument which I am not convinced presents the correct position. Mr Chand wrote in his letter that: "...the Commission has had from Friday, 1 January, 2010 jurisdiction to hear claims against constitutional corporations." That does not appear to be correct. In any event, the solicitor is still in some doubts that he continues to represent Mr Chand and, consequently, I really cannot rely on what he says in the letter. 8 A party to any litigation must appreciate that there are obligations on him to attend proceedings which are set down or at least make appropriate alternate arrangements with the other party. Mr Chand has done neither. And he has left his solicitor in the lurch as well. Mr Chand's casual approach to the claim by the TWU on behalf of Mr Edwards is not acceptable and there are, in my opinion, no grounds to postpone the matter further. Nevertheless, in the ex parte proceedings before me on Friday, 19 February, 2010 Mr Boncardo still carries the onus of establishing the jurisdiction for me to hear and determine the matter before me and later, if necessary, the substance of the claim on the merits made on behalf of Mr Edwards. Jurisdiction 9 Prior to Friday, 1 January, 2010, the State transport industry award had a dual role: it became with Work Choices a "notional agreement preserving a State award" [a NAPSA] to the extent that it bound S.51(xx) corporations. It was not a NAPSA for sole traders, however. That initially remained an important distinction and one on which the TWU has relied in lodging the S.130 notification. That situation has been changed with the enactment of complementary Federal and State legislation - the State Industrial Relations (Commonwealth Powers) Act and the Federal Fair Work Amendment (State Referrals and Other Measures) Act - which came into effect from Friday, 1 January, 2010. 10 As far as small claims under Ss.379 and 380 of the State IR Act, S.364(1)(b) provides that a member of the State Commission hearing such a small claim became an "industrial court" as defined to include: "…in the case of proceedings under S.380 (small claims during other Commission proceedings) - the Commission whether or not in Court Session…" And pursuant to S.365: "An industrial court may, on application, order an employer to pay any amount payable under an industrial instrument that remains unpaid to the person to whom it is payable." But an "industrial instrument" is confined by S.8 to mean: "...an award, enterprise agreement, a public sector industrial agreement, a former industrial agreement, a contract determination or a contract agreement..." 11 The jurisdiction of the State Commission under Ss.379 and 380 is therefore confined to State instruments - or by virtue of S.364(2) entitlements flowing from permits under S.125 of the State IR Act (impaired workers), under the 1944 Annual Leave Act, the 1955 Long Service Leave Act or the 1963 Long Service Leave (Metalliferous Mining Industry Act) - but not, I believe, NAPSA's. So prior to Friday, 1 January, 2010, if CTS was not a S.51(xx) corporation, the State transport industry award would remain a State instrument - but not if CTS was a S.51(xx) corporation. Therefore, the TWU claim before me would have only been within jurisdiction if CTS was not a S.51(xx) corporation, as has been alleged by it. 12 By S.12(d) of the Federal FWA Act an "eligible State or Territory court" was initially defined as including: "...any other State or Territory court that is prescribed by the regulations..." Such regulations had been enacted [Regs.1.05 and 6] prescribing the State Industrial Commission as a "prescribed State industrial authority". Whilst Regs.1.05 and 6 have now been repealed following the enactment of the Federal Fair Work Amendment (State Referrals and Other Measures) Act which came into effect from Friday, 1 January, 2010, it also extended the definition of an "eligible State or Territory Court" [S.12(ca)] to include: "....the Industrial Court of New South Wales..." Nevertheless, it would appear to me that a complementary amendment to the State IR Act - in particular, to the definition of "industrial instrument" in S.8 - would be necessary to permit the Ss.379 and 380 small claims jurisdiction to apply to NAPSA's. That has not to date occurred. 13 The TWU has argued that CTS is not a S.51(xx) corporation but a sole trader and, consequently, its S.130 notification and the application it makes under Ss.379 and 380 remain jurisdictionally competent so that the matter may proceed before the State Commission for resolution as a small claim. As Mr Selig indicated in his evidence, the TWU has conducted an internet search to establish CTS's identity to its satisfaction prior to lodging the S.130 notification. The search revealed that CTS was a sole trader [BN 98273455] and not a S.51(xx) corporation. The TWU has again checked the status of CTS and confirmed it in its view that it is a sole trader. 14 Whilst the distinction between employers who are S.51(xx) corporations or sole traders was initially an issue of some significance to establish the jurisdiction of the State Commission, it is no longer an issue of such jurisdictional uncertainty. The recent complementary Federal and State amending legislation provided that sole traders were transferred to the Federal industrial jurisdiction. They are now bound by NAPSA's in the same manner as S.51(xx) corporations. 15 Nevertheless, transitional arrangements have been made by Ss.60 and 61 of the Federal Fair Work Amendment Act for the preservation of part heard matters and matters which were commenced in the State Commission prior to Friday, 1 January, 2010. That is the position with the S.130 notification the TWU has lodged against CTS (on Wednesday, 4 November, 2009). Therefore, the status of CTS as a sole trader, simply stated, would mean that the TWU claim under Ss.130, 379 and 380 would be within jurisdiction in the State Commission. Outcome 16 On the basis of the evidence adduced in this hearing from the TWU, I am satisfied that CTS is a sole trader. Consequently, the TWU claim on behalf of Mr Edwards is, at the present time at least, within jurisdiction. I direct that the TWU file and serve any further material to determine the merits of its claim by no later than Thursday, 25 February, 2010 and that CTS provide and serve its evidentiary material in reply no later than Friday, 19 March, 2010 (as was suggested in the letter from the solicitor who had represented CTS). I will set the matter down for mention and programming of a hearing on Wednesday, 31 March, 2010. 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.