Industrial Relations Commission of New South Wales CITATION: Transport Workers' Union of New South Wales v. First Choice Freight Services Pty Limited [2007] NSWIRComm 1018 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 - alleged underpayment of remuneration - interpretation of provisions of a Contract Determination - preliminary decision as to jurisdiction LEGISLATION CITED: Industrial Relations Act 1996 Bryce v. Apperley (1998) 82 IR 448 CASES CITED: Codelfa Construction Pty Limited v. State Rail Authority of New South Wales (1982) 149 CLR 337 Minister of State for the Army v. Dalziel (1944) 68 CLR 261 HEARING DATES: 27/03/2007 DATE OF JUDGMENT: 19 April 2007 APPLICANT Michael Aird Transport Workers' Union of New South Wales LEGAL REPRESENTATIVES: RESPONDENT Paul Matters Leo and Morrison Lawyers DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR Thursday, 19 April, 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 PRELIMINARY DECISION [2007] NSWIRComm 1018 1 The Transport Workers' Union of New South Wales has lodged a notification under Part 4, Dispute Resolution, of Chapter 6, Public Vehicles and Carriers, of the 1996 Industrial Relations Act [S.332] concerning 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. The original S.332 notification by the TWU suggested that the relevant instrument was the Transport Industry - Courier and Taxi Truck Contract Determination. The TWU now believes that the work of the contract drivers engaged by First Choice falls properly under the Transport Industry - General Carriers Contract Determination. 2 The matter was allocated to me. I set it down for conferences on Monday, 27 February, 2006. There was no appearance by First Choice at that time. I adjourned the conference proceedings until Monday, 27 March, 2006 and mentions on Tuesday, 18 April, 2006, Monday, 5 June, 2006, Wednesday, 14 June, 2006, Monday, 4 September, 2006, Monday, 9 October, 2006, Monday, 23 October, 2006 and Monday, 20 November, 2006. Those proceedings and all subsequent proceedings were convened in the Commission's premises at 90 Crown Street, Wollongong. 3 The TWU claim, mounted as a small claim under Ss.279 and 280, alleges underpayment of remuneration to the drivers engaged under contract by First Choice. 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 1996 Act, ie the TWU in these proceedings. The maximum amount of any order for a small claim is confined by S.279(3); it presently stands at $20,000.00 for each individual person for whom the TWU claim is mounted. By virtue of S.343(j) the small claims jurisdiction is extended to Contract Determinations under Chapter 6. 4 First Choice argues that the contract drivers it engages are not covered by the General Carriers Contract Determination. I set that matter down for a hearing on the jurisdictional competence of the TWU's application on Monday, 5 February, 2007 but that hearing was aborted at the request of the parties and I set it down for hearing instead on Tuesday, 27 March, 2007. In the hearing Mr Aird represented the TWU and Mr Matters represented First Choice. Mr Matters had earlier foreshadowed an application for costs against the TWU in these proceedings. 5 Essentially, at issue in these proceedings is an interpretation of relevant provisions of the General Carriers Contract Determination (and the Courier and Taxi Truck Contract Determination). Ultimately, as Mr Matters submitted, it is the literal meaning of the words on which I should rely. In that respect in Bryce v. Apperley (1998) 82 IR 448 the Full Bench of the Commission (Hungerford, Marks and Schmidt JJ) explained the position (at p.452) in the following manner: "...In our view, in construing the true meaning of an industrial award, like any other instrument with legal force, the task requires an approach according to the actual words used and their plain, ordinary English meaning..." Those comments reflect the familiar statement by Mason J in the judgment of the High Court (Stephen, Mason, Aickin, Wilson and Brennan JJ) in Codelfa Construction Pty Limited v. State Rail Authority of New South Wales (1982) 149 CLR 337 at p.352, viz: "...The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking, facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although...if the facts are notorious, knowledge of them will be presumed..." That is particularly the case for Contract Determinations with common rule application, as is the position in this hearing, since they have application beyond the interests of the parties who made them. 6 That having been said, it is contended by Mr Matters, and accepted by Mr Aird, that the substantive work of the contract drivers engaged by First Choice is parcel work and express road/air freight work, as defined in Clause 1, Definitions of the Couriers and Taxi Truck Contract Determination and, as such is expressly excluded from the operation of that Contract Determination. Parcel work is defined in Clause 1, Definitions, of the Contract Determination as meaning: "...the transportation of individual items or goods by contract carrier participating in a system of distribution of goods from one place to another for reward at the behest of a principal contractor pursuant to a contract or contracts of carriage by means of a motor vehicle which system of distribution usually involves: (a) transportation to a depot; (b) unloading and sorting into groups, each group comprising items to be delivered to places within a logical geographical zone; (c) reloading onto vehicles; and (d) transportation to such other place(s) either on the same day or on the following normal working day..." And in Clause 1, express road/air freight work is defined as meaning: "...the transportation of goods from places within, to places outside, the county of Cumberland and vice versa , generally, but not exclusively, on an overnight basis and using a transportation system commonly known in the transport industry as 'freight consolidation' and by means of interstate and/or intrastate road and air freight services..." First Choice, which as I understand the position, principally operates in the Illawarra region, would be excluded on that basis alone. 7 But the TWU contends that the General Carriers Contract Determination, which has wider application to contract drivers - both as to the type of work and the geographic area of coverage - still applies to the work of First Choice. In a sense, and as its title suggests, the General Carriers Contract Determination extends to cover contract drivers generally, provided they are not specifically covered elsewhere, at least to the extent permitted by Clause 2, Class of Contract of Carriage, Locality and Duration, viz: "...This Contract Determination shall operate in respect of contracts of carriage being contracts for the transportation of goods of all descriptions - * from one place to another place, both of which are within the County of Cumberland; or * from one place to another place, both of which are within the area of a circle of radius 50 kilometres the centre of which is the starting place applicable to the contract carrier who is performing the contract of carriage..." The General Carriers Contract Determination also covers a wide range of work by contract drivers, excluding only some goods not relevant for First Choice's operations (eg quarried materials, furniture, refrigerated goods, cars, cash, bricks, tiles and pottery, ready-mixed concrete, coal, petrol, oil or liquid petroleum, etc). 8 Mr Matters' argument appears to be that all couriers and taxi truck drivers are also excluded from the General Carriers Contract Determination by virtue of 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." Courier and taxi truck work is defined in the Courier and Taxi Truck Contract Determination as meaning: "...the transportation by means of a courier or taxi truck vehicle of goods of up to a maximum of 4.5 tonnes of weight from one place to another by a contract carrier for reward at the behest of a principal contractor pursuant to a contract of carriage and where it is intended by the parties that the time to be taken is either the shortest possible time or within the time requested by the principal contractor and it is further intended that in any event completion is to be effected on the same day as commencement or by the earliest reasonable possible time on the following normal working day..." There is then the following notation to the subclause: "Notation: See exclusion from this Determination of 'Courier or Taxi Truck Work' contained in paragraph (vii) of subclause (1) of Clause 2, Class of Contract of Carriage, Locality and Duration, of this Determination." 9 Mr Matters relies on the proviso to Clause 2(1)(vii) - excluding taxi truck services where the vehicle does not exceed 4.5 tonnes carrying capacity - and he asserts in the written submissions which formed the basis of his argument before me that the contract drivers engaged by First Choice work from vehicles with a maximum load of 4.5 tonnes: indeed, he asserts that no vehicle exceeds 2 tonnes. 10 Mr Aird submitted that the proviso to Clause 2(1)(vii) did not have a life of its own and that it had to be read in the context of the clause as a whole. He referred me in that respect to the decision of the High Court (Latham CJ, Rich, Starke, McTiernan and Williams JJ) in Minister of State for the Army v. Dalziel (1944) 68 CLR 261 and, in particular, the comments of Latham CJ (at p.274), viz: "..This provision appears as a proviso. (The judge at first instance) has interpreted it as a substantive provision and has given it full effect according to its terms and not merely as a limitation upon the preceding provision of the regulation. As a general rule, a proviso should not be interpreted as if it were a substantive provision independent of the provision to which it is a proviso. Speaking generally, a proviso is a provision which is '...dependent on the main enactment...' and not an '...independent enacting clause...'..." 11 Mr Aird argued in his written submissions that: "..the admissions by the respondent that they are performing, on a substantive basis, 'parcel work' and 'express road/air freight work' means that they cannot meet the definition of courier and taxi truck work... The applicant argues that it is appropriate to take some guidance on what is 'courier and taxi truck work' from the Courier and Taxi Truck Contract Determination. This Determination specifically excludes parcel work and express road/air freight work, when involved in on principal basis... The applicant argues this is because courier and taxi truck work is largely ad hoc work and the definition of parcel work and express road/air freight work is incompatible with courier and taxi truck work..." 12 Mr Aird submitted that the nature of the contracts of carriage conducted by the contract drivers engaged by First Choice fell clearly under the class of work contemplated in Clause 2 of the General Carriers Contract Determination and that no exemption applied to that work. He claimed that it was the intention of the parties when the General Carriers Contract Determination came into existence that it acts to cover all work of contract drivers, except those which were expressly excluded. 13 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. 14 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. 15 In those circumstances, I direct the parties into further discussions concerning this matter but I will list these proceedings again for a mention and further programming at 9.30am on Monday, 14 May, 2007 (in Wollongong) to determine what further action is necessary with respect to this matter if it remains unresolved. 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.