Industrial Relations Commission of New South Wales CITATION: Transport Workers Union of New South Wales v Sydney Civil Excavation Pty Ltd [2008] NSWIRComm 1049 APPLICANT Transport Workers Union of New South Wales PARTIES: RESPONDENT Sydney Civil Excavation Pty Ltd FILE NUMBER(S): 2073 of 2007 CORAM: Macdonald C CATCHWORDS: Dispute Notification - s332 of the Industrial Relations Act 1996 - allegation by Union that Respondent underpaid certain contract carriers who performed work for the Respondent - conciliation failed to resolve underpayment claim - Hearing - Held that carriers' work for Respondent regulated by a Contract Determination - Respondent had engaged the carriers for excavation work and underpaid the carriers for cartage work - appropriate underpayment orders made by Commission. LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 28/04/08 and 29/04/08 DATE OF JUDGMENT: 27 June 2008 Transport Workers Union of New South Wales Mr R Olsen LEGAL REPRESENTATIVES: Sydney Civil Excavation Pty Ltd Mr S Sarkis DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: MACDONALD C 27 June 2008 Matter No IRC 2073 of 2007 Transport Industry - Excavated Materials Contract Determination Notification under section 332 of the Industrial Relations Act 1996, by the Transport Workers Union of New South Wales, of a dispute with Sydney Civil Excavation Pty Ltd re underpayments to contract carriers DECISION [2008] NSWIRComm 1049 1 The Transport Workers Union of New South Wales ("the Union") lodged a dispute notification, pursuant to section 332 of the Industrial Relations Act 1996 ("the Act"), against Sydney Civil Excavation Pty Ltd ("the Respondent"). 2 The dispute notification set out the dispute in Schedule A to that notification and stated that the Respondent engages a number of contract carriers under the Transport Industry - Excavated Materials Contract Determination ("the Determination") and the Respondent was paying rates (below that set by the Determination) to a number of the carriers who are also members of the Union. The dispute notification sought the assistance of the Commission. 3 The matter was set down for a compulsory conference on 22 November 2007 and a Report Back on 14 December 2007. Failing resolution of the dispute, the matter was programmed for a Hearing - including the filing of evidentiary material by certain dates. 4 The Union filed its evidentiary material on 19 February 2008, being four days overdue. The Respondent did not file any evidentiary material. 5 The Hearing took place on 28 and 29 April 2008. The Union was represented by Mr R Olsen, union official. The Union filed the following witness statements: Mr Robert Tabet Mr Jerry Kemplen Mr Phillip Mizzi Mr Joe Dimech Mr Paul Xiberras Mr Richard Webb 6 All of the foregoing witness statements were made out by contract carriers who deposed they had carried out work for the Respondent and had been short paid per the Determination. 7 Only four of the deponents were available to give evidence: Messrs Xiberras and Webb were not available but Mr Sarkis did not object to the witness statements of those two drivers being entered into evidence. 8 Although the Respondent did not file any material, Mr Sarkis sought to have a Mr Joe Constantine, project manager, give evidence. This notification was at short notice made on the first day of the Hearing. The Union consented to that application by Mr Sarkis. BACKGROUND 9 The Union filed a dispute notification on behalf of members of the Union, who are owner-drivers. 10 Those members/owner-drivers were engaged by the Respondent said the Union, to cart excavated material from one site to another site. 11 The Union alleged that these members/owner-drivers were not paid their full entitlement under the Determination for the cartage work performed. 12 Conciliation failed to resolve the dispute. FINAL SUBMISSIONS For the Union 13 Mr Olsen, for the Union, put the following in final submissions. (a) The six owner-drivers had performed cartage work for the Respondent. (b) There is an industrial instrument (the Determination) that sets out the methods of remuneration for such cartage work (excavated material work). (c) The Determination sets out two methods of remuneration: kilometre rates or hourly rates (or a combination of both). (d) The Respondent's claim that it can set its own cartage rates for the owner-drivers is wrong given that the Determination applies. For the Respondent 14 Mr Sarkis, for the Respondent, put the following in final submissions: (a) The Respondent and owner-drivers negotiated a rate for the job to be performed. If an owner-driver is subsequently unhappy about the rate then the owner-driver should discuss it with the Respondent. (b) If there is a rate to be followed (as in a rate in the Determination), then every construction company in Sydney is guilty in not following the Determination rate(s). (c) The evidence of the owner-drivers is that their documentation authorising cartage by the Respondent was not signed off by the appropriate Respondent officer - Mr Constantine. (d) Many of the owner-drivers were organised by one owner-driver (Mr Tabet) to perform the cartage work and therefore he should be held accountable for the shortfall in rates paid for the work performed. (e) The evidence of the owner-drivers is that they worked all day, excavating material for the Respondent, and did not take a meal break. This is against the law. Union in Reply 15 Mr Olsen, in reply, put the following: (a) There was no evidence that the owner-drivers did not have a meal break. The owner-drivers fit in their meal breaks with the work to be performed on the day. (b) The Respondent is liable for the underpayments for the work performed and not Mr Tabet. (c) The Determination sets out the rates to be paid and no lesser rate can be paid. CONSIDERATION 16 The Union has filed a dispute notification under Part 4 - Dispute Resolution, of Chapter 6 - Public Vehicles And Carriers, of the Act. The dispute notification (s332) alleges that the Respondent has underpaid certain contract carriers who performed cartage work for the Respondent. 17 The dispute notification was accompanied by a section 380 Particulars Of Small Claim. 18 The Union alleged that the relevant industrial instrument regulating the work of the contract carriers is the Transport Industry - Excavated Materials Contract Determination ("the Determination"). 19 The Respondent denies that there has been any underpayment. The Respondent asserted that the contract carriers performed cartage work for an agreed rate and therefore there can be no underpayments claim. The Respondent also asserted that most of the contract carriers were not engaged by the Respondent but were engaged by one contract carrier (Mr Robert Tabet of Tabet & Sons Earthmoving Pty Ltd). The Respondent also contested the underpayment claims on the basis that the cartage work, performed by these contract carriers in question, had not been signed off by the appropriate Respondent officer. 20 In considering the Respondent's case against the Union's claim for its members, it is to be noted that the Respondent did not file any material in response to the six witness statements filed by the Union on behalf of the six contract carriers. The only evidence (apart from what fell during cross-examination) put on by the Respondent, is that from Mr Constantine who gave oral evidence. He was only able to give evidence because the Union did not object to Mr Sarkis' request to be able to call Mr Constantine. This call was made during the Hearing. 21 By not filing material, in response to the Union's filed material, then the Respondent was not challenging the content of that filed material. To the extent that Mr Sarkis challenge the content during cross-examination, then the Commission had regard as to what weight to give to the challenged evidence of the six contract carriers. Similarly, the evidence of Mr Constantine had to be assessed as to what weight to give his evidence where it conflicted with that of the six contract carriers. Of course, if Mr Constantine gave evidence conflicting with that of any of the carriers, but such conflict was not put to the carriers by Mr Sarkis (when those carriers were in the witness box), then little weight (if any) could be given to the evidence of Mr Constantine where it conflicted with that of any of the carriers. The Union's Claim 22 The Union is entitled to make an application for an order for a small claim: s380(1) of the Act. 23 The maximum amount that an industrial court may order an employer to pay an employee under a small claims application, is currently $20,000 for any one employee: s379(3) of the Act. Although this particular statutory provision refers to "any one employee" (contra "contract carrier"), another provision of the Act extends this small claims jurisdiction for employees to also apply to contract carriers: s343(1)(j). 24 The amount of the small claim being pursued by the Union, on behalf of the six contract carriers, is an amount less than $20,000 for each contract carrier. 25 Given the foregoing jurisdictional criteria, the Commission finds it has the jurisdiction to proceed in its deliberation of the Union's claim. The Determination 26 The Union asserts that the relevant industrial instrument governing the work performed by the six contract carriers is the Transport Industry - Excavated Materials Contract Determination ("the Determination"). The Respondent's case (per Mr S Sarkis) was that if this Determination applied, then every construction company is guilty in not following this Determination. The rate to be paid to any contract carrier, said Mr Sarkis, was one struck between the Respondent and the contract carrier. 27 Having considered the evidence surrounding this issue, the Commission finds that the work performed by the contract carriers is work that is regulated by an industrial instrument and that is the Determination (Ex 7). 28 The Determination (Vol 301 IG 1082), "applies to all contracts of carriage of excavated and demolition material and to all contractors and contract carriers engaged in or in connection with such work…." (Clause 21. Area, Incidence and Duration). 29 The Respondent (Sydney Civil Excavation Pty Ltd), (emphasis added) is engaged in work that falls within this definition of the Area, Incidence and Duration Clause. Accordingly, the Determination applies to these contract carriers, in question. The "Engagement" of the Carriers 30 Another aspect as to whether the Determination applied to these contract carriers, was the claim of the Respondent that it did not engage the contract carriers. Instead, the Respondent asserted, five of the six contract carriers were engaged by Mr Robert Tabet of Tabet & Sons Earthmoving Pty Ltd, and therefore Mr Tabet should make good any shortfall in remuneration. 31 The Commission rejects this submission for the reasoning set out below. 32 Mr Sarkis did cross-examine Mr Tabet on this issue, but he denied he had engaged the other carriers. The Commission has highlighted the term, "engaged", because the oral evidence of some witnesses is that, for this term to have significance for the Respondent's case, it would have to be shown that Mr Tabet was a fleet owner. That is, it would need to be shown that he owned two or more trucks and was therefore in a position to "engage" these other trucks/truck drivers because these trucks/truck drivers would be employees of Mr Tabet. 33 Mr Kemplen gave evidence that Mr Tabet was not a fleet owner. (Tr 28/04/08 - p46, line 48 and 49). Mr Dimech denied he was "working through Mr Tabet" and said he was "working for Sydney Civil". (Tr 29/04/08 - p11, line 46 and 47). 34 It was not put, per se, to Mr Tabet, by Mr Sarkis (during cross-examination), that Mr Tabet was a fleet owner. Mr Sarkis put to Mr Tabet that he had employed the other carriers. Mr Tabet denied that he had employed them. (Tr 28/04/08 - p38, line 36 and 37). Mr Sarkis, the Commission records, did not bring any evidence to show that Mr Tabet was a fleet owner. 35 There was evidence, however, from Mr Tabet about how the other truck drivers came to have knowledge that the Respondent required other trucks (carriers) to perform cartage work - as opposed to they were engaged by Mr Tabet. 36 The evidence of the contract carriers is that they sometimes obtain work by word of mouth. Thus, a company tells a contract carrier that it needs a number of truck drivers (carriers) to perform certain work. That contract carrier then contacts his mates (fellow carriers) and advises that there is carrier work at such and such a work site - if they are interested. 37 Mr Tabet described this practice (as to work availability) as being "like a network and we (the contract carriers) help one another out." (Tr. 28/04/08 - p29, line 33 and 34). Three other carriers who gave evidence, confirmed the foregoing "network" practice: Mr Kemplen (Tr 28/04/08 - p47, line 48 to p49, line 25); and Mr Dimech (Tr 29/04/08 - p12, line 24 to 37). 38 A related issue, as to the engagement, was put by Mr Sarkis during cross-examination. This issue was that the proper authorised officer had not signed off on the paperwork of the various carriers as to the work performed by them for the Respondent and therefore, the carriers were not entitled to their underpayment claim. 39 The Commission rejects this submission. If the Commission was to accept this argument, then contract carriers could be working for no remuneration. This submission leaves it open for a principal contractor to not only deny an underpayment claim but demand repayment of any monies given to a contract carrier for work performed for the principal contractor because the principal contractor "discovered" that the proper authorised officer had not authorised the carrier work performed. 40 The evidence of the carriers as to this issue was that they drove up to the work site and were given a direction to carry out the cartage work. The evidence of Mr Kemplen was that a Charlie Ceccine was the Respondent's employee who organised the work for the contract carriers on a given day. (Tr 28/04/08 - p43, line 8 to 19) Mr Mizzi gave evidence that it was "the foreman" for the Respondent who signed the invoice on the job for work carried out. (Tr 29/04/08 - p3, line 28 to 33). Mr Dimech gave evidence that it was "the foreman" who signed the invoice for the work performed. (Tr 29/04/08 - p9, line 9 to 32). 41 In summary, the Commission finds that a representative of the Respondent did allocate work to the contract carriers and the contract carriers were paid for the cartage work performed. The filed witness statements of the carriers included documentary material about the particular cartages performed. The Respondent paid the carriers for the cartage work performed. The Respondent can not now advance an argument that the underpayment claims are invalid because Mr Constantine did not sign off on the work performed. CONCLUSION 42 The Commission has considered all of the evidence surrounding the Union's claim that six contract carriers were underpaid for the cartage work performed for the Respondent. 43 The Commission finds that the work performed by these carriers is work governed by the Determination. And so, the Commission rejects the Respondent's submission that it was free to negotiate a rate for the excavation work with each carrier and if the carrier did not like the rate, then the carrier was free to decide not to do the cartage work. 44 The Commission finds that it was the Respondent who engaged the six carriers. They were engaged by the Respondent's representative on the work site. 45 The Commission finds that Mr Tabet did not engage the five other contract carriers. To have done so would at least require that Mr Tabet was a fleet owner. Mr Tabet denied that he was a fleet owner. The Respondent brought no evidence to show that he was a fleet owner. 46 The Commission finds that the other five carriers learnt of the cartage work availability through word of mouth - being the "network" practice that operates amongst carriers to pass the word around that there is a client who requires carriers for its business. 47 The Union filed six witness statements on behalf of the six carriers claiming under payment of monies, per the rates contained in the Determination, for the work performed for the Respondent. Four of the six carriers gave oral evidence (Messrs Tabet, Kemplen, Mizzi and Dimech). Two of the carriers (Xiberras and Webb) were not available to give oral evidence in support of their filed statements. Despite they're not being able to do so, the Commission finds that the issues raised by the Respondent in cross-examination against the four carriers, are the same issues for Messrs Xiberras and Webb. Accordingly, the findings of the Commission about those issues for the four carriers also apply to Xiberras and Webb. 48 The filed witness statements contained annexures being documentary evidence about the billings (by the carriers) against the Respondent for work performed. The amount of the underpayments claimed were also set out by the carriers. The underpayments were based on certain rates found in the Determination. 49 The Commission, in conclusion, finds that the Union has made out its case that the Respondent has underpaid the six carriers, per the Determination, and makes the appropriate order against the Respondent in satisfaction of the underpayment claims. ORDERS 1. Sydney Civil Excavation Pty Ltd shall pay to: (a) Tabet & Sons Earthmoving Pty Ltd, the sum of $1975.45; and (b) J K Tipper Hire Pty Ltd, the sum of $788.70; and (c) P & D Mizzi Pty Limited, the sum of $2209.93; and (d) J & J Dimech Pty Ltd, the sum of $1302.76; and (e) P & R Xiberras Tipper Hire Pty Ltd, the sum of $104.62; and (f) Webbs Tipper Hire, the sum of $112.20, within 21 days of the date of this order. 2. This order shall take effect on and from Friday, 27 June, 2008. A Macdonald 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.