Transport Workers' Union of New South Wales (on behalf of TWS NSW Pty Ltd and Ready Transport) and Smartskip (NSW) Pty Ltd [2008] NSWIRComm 55

Industrial Relations Commission of New South Wales

CITATION: Transport Workers' Union of New South Wales (on behalf of TWS NSW Pty Ltd and Ready Transport) and Smartskip (NSW) Pty Ltd [2008] NSWIRComm 55

APPLICANT Transport Workers' Union of New South Wales PARTIES: RESPONDENT Smartskip (NSW) Pty Ltd

FILE NUMBER(S): IRC560; IRC561 of 2007

CORAM: Sams DP

Applications for compensation arising from termination of contracts of carriage - contracts for the carriage of waste - delivering, collection and transfer of waste bins - provisions of contracts - letters of warning - failure to comply with terms of contracts - rates under the contract - rising fuel costs - withdrawal of fuel card - increased travel distances - rates said to be unsustainable - drivers request to increase rates - Union called in to negotiate increase in rates - Union official denied representation and ordered from site - allegations of refusing work - whether drivers on strike - threat to picket - drivers' contracts terminated. CATCHWORDS: Held; Commission's powers under s 314 of the Act - similarity to unfair dismissal jurisdiction - similar principles apply as to unfairness in terminating contracts - substantive and procedural unfairness - applicant's evidence preferred - respondent's evidence unreliable - Jones v Dunkel inferences available - drivers not on strike - no threat to picket - desire to negotiate rate increase - no opportunity to defend allegations - allegation of unreliability not sustained - no warnings of poor performance or refusal to work - no warning of termination of contract - three warnings in quick succession unacceptable - principal contractor refused to recognise Union official or allow his representation of drivers - breach of agreements - termination of contracts substantively and procedurally unfair - impracticality of reinstating contracts - maximum compensation ordered.