Industrial Relations Commission of New South Wales CITATION: Taxi Industry (Contract Drivers) Contract Determination [2009] NSWIRComm 1037 APPLICANT New South Wales Taxi Industry Association PARTIES: RESPONDENT Transport Workers' Union of New South Wales FILE NUMBER(S): IRC 907 of 2009 CORAM: Connor C CATCHWORDS: contract determination - taxi industry - application for variation of contract determination - appropriate formula for adjustment of the pay-ins to taxi owner bailors - application opposed - no evidence to depart from existing arrangements - variation granted LEGISLATION CITED: Industrial Relations Act 1996 Appeal by Haraszti against the Taxi Industry (Contract Drivers) Contract Determination (1996) 40 AILR Rep.5-105 Taxi Industry (Contract Drivers) Contract Determination Case 1996 - unreported CASES CITED: Taxi Industry (Contract Drivers) Contract Determination Case - 2001- unreported Taxi Industry (Contract Drivers) Contract Determination Case - 2002 - unreported Taxi Industry (Contract Drivers) Contract Determination Case - 2003 - unreported Taxi Industry (Contract Drivers) Contract Determination Case - 2006 [2006] NSWIRComm 262 HEARING DATES: 15/07/2009 EXTEMPORE JUDGMENT DATE : 15 July 2009 APPLICANT Owen Ratner Pigott Stinson Lawyers LEGAL REPRESENTATIVES: RESPONDENT Oshie Fagir Transport Workers' Union of New South Wales DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Wednesday, 15 July, 2009 Matter No IRC 907 of 2009 Taxi Industry (Contract Drivers) Contract Determination Application by the New South Wales Taxi Industry Association for variation re adjustment to pay-ins DECISION [2009] NSWIRComm 1037 1 Pursuant to the provisions of Part 2, Contract Determinations, of Chapter 6, Public Vehicles and Carriers [Ss.311 to 321], of the 1996 Industrial Relations Act, the New South Wales Taxi Industry Association has lodged an application concerning the Taxi Industry (Contract Drivers) Contract Determination. The application seeks to vary the taxi industry contract determination to flow on a share of a fare increase [5.4%] recommended in a recent report to the State Minister for Transport by the Independent Pricing and Regulatory Tribunal of New South Wales [IPART] which reviewed taxi fares in this State. The fare increase has been accepted by the State Government and is to take effect from Sunday, 5 July, 2009. 2 There are two methods of remuneration recognised under the contract determination for taxi driver bailees: a sharing of the chargeable fares - 45% for the bailee in the first year and 50% for subsequent years [Method One] and a fixed payment scheme whereby the taxi driver bailee retains the excess after an agreed sum has been paid to the taxi owner bailor [Method Two]. Taxi driver bailees have the option of working under either Method One or Method Two. Taxi driver bailees in the Sydney metropolitan area invariably have worked under Method Two and Method One has, to that extent, fallen into disuse. 3 From 1984 to 2001, when increased taxi fares were authorised, maximum pay-ins in Method Two and other entitlements were adjusted in accordance with the established formula set out in the taxi industry contract determination. There was some opposition expressed by the TWU to that formula and I had expressed some reservations about it myself. For instance, I indicated in my unreported decision of Monday, 23 December, 1996 in the 1996 Taxi Industry (Contract Drivers) Contract Determination Case [Matter No. IRC 1959 of 1996 at p.7] that: "...it is certainly time to grasp the nettle for a major overhaul of the contract determination for taxi drivers which no longer appears to me to reflect the current state of the industry..." But I further indicated (at p.8) that until that was done, I would be obliged to rely on the existing formula, viz: "...In the meantime, and until such times as something better is worked out between the parties or arbitrated, the existing formula is all I really have to go by..." 4 In 2001 taxi fares were increased by reference to an IPART report at that time with some costs relating to the operation of taxi cabs being borne by operators and some costs being borne by taxi drivers. In his unreported decision of Wednesday, 5 December, 2001 in the 2001 Taxi Industry (Contract Drivers) Contract Determination Case [Matters No.IRC 3119 and 3282 of 2001] Marks J departed from the established formula in considering the appropriate pay-in, and again in his unreported ex tempore decision of Thursday, 17 October, 2002 in the 2002 Taxi Industry (Contract Drivers) Contract Determination Case [Matter No.IRC 4563 of 2002], his Honour did not follow that formula in considering the appropriate pay-in for a fare increase at that time. On both occasions his Honour's approach was over the opposition of the TIA. 5 Since that time, however, the formula flowing from the decisions of Marks J has been consistently adopted. In my unreported decision of Friday, 7 November, 2003 in the 2003 Taxi Industry (Contract Drivers) Contract Determination Case [Matter No.IRC 4725 of 2003] I adopted that approach with a TIA application at that time, pointing out (at p.4) that: "...it is really the course charted by Marks J which is of greater influence to me and I do not believe that it is appropriate to now depart from the course of action which his Honour has followed on the last two occasions that the question of pay-ins to taxi owners was considered and which IPART has borne in mind in its current deliberations..." But I went on to say (at p.4): "...In saying that, I would not wish to resile from the view I have consistently expressed that it would be appropriate for a more comprehensive review of the contract determination for the taxi industry..." Sams DP on Monday, 14 August, 2006 in the 2006 Taxi Industry (Contract Drivers) Contract Determination Case [Matter No.IRC 2904 of 2006], also applied the formula flowing from the decision of Marks J. 6 With its current application for an increase to the pay-in for taxi owners, the TIA has based its current application on the approach of Marks J and the latest report of IPART. The TIA application was allocated to me and I set it down for a mention on Friday, 3 July, 2009. In those proceedings Mr Ratner represented the TIA and Mr Fagir represented the Transport Workers' Union of New South Wales. It was my understanding that the TIA application represented an agreed position and, in such a case, I was prepared to convert the mention into a hearing. However, in the mention Mr Fagir indicated opposition to the TIA application, suggesting that the current financial situation dictated a change to the formula under which the share of fare increases flow to taxi owner bailors. 7 I adjourned the matter for hearing on Thursday, 16 July, 2009, directing the parties into further discussions and suggesting that parties may consider some interim measures, pending a more comprehensive examination of the existing formula. Mr Ratner argued in that hearing for the preservation of the existing formula on which recent adjustments to the pay-ins to Method Two have been made. Mr Fagir claimed that the current financial position for taxi driver bailees dictated that the TIA application should be rejected. 8 Mr Faruque Ahmed, a taxi driver bailee, sought and was granted leave to intervene in the proceedings to make a number of claims, unrelated to these proceedings and to also oppose the TIA application. Mr Michael Jools, a representative of an organisation (the Australian Taxi Drivers Association) had written to me on Monday, 6 July, 2009 to submit, among other things, that I should not approve the TIA application but that a "...general update or review take place..." with respect to the taxi industry contract determination. Neither Mr Ahmed nor Mr Jool have standing as parties in these proceedings [Appeal by Haraszti against the Taxi Industry (Contract Drivers) Contract Determination (1996) 40 AILR Rep.5-105]. 9 I am obliged to consider the discrete matter before me, ie the current TIA application confined to one issue - the amount to increase the pay-ins for taxi owners in the light of the recent fare increase - and that application is not the appropriate vehicle for any major review of the payment methods in the industry. If the parties wish to substantially amend the formula on which the pay-ins for taxi owner bailors has consistently been based they should lodge a separate application to that effect. 10 And, in the absence of anything to the contrary, I believe that I should grant the TIA application and I do so. The taxi industry contract determination shall be varied in terms of the TIA application effective from the first shift after Wednesday, 15 July, 2009. 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.