Industrial Relations Commission of New South Wales CITATION: Taxi Industry (Contract Drivers) Contract Determination 1984 [2006] NSWIRComm 262 APPLICANT New South Wales Taxi Industry Association PARTIES: RESPONDENT Transport Workers' Union of Australia, New South Wales Branch FILE NUMBER(S): 2904 of 2006 CORAM: Sams DP CATCHWORDS: Contract of bailment - application to vary contract determination - Report of Independent Pricing and Regulatory Tribunal - calculation of driver entitlements - opposition of Union - previous decisions of the Commission - comity of decisions - no good reason to depart from previous decisions - application granted LEGISLATION CITED: Industrial Relations Act 1996 Passenger Transport Act 1990 CASES CITED: Taxi Industry (Contract Drivers) Contract Determination 1984 (unreported) Connor C, IRC3361 of 2005, 25 August 2005 Taxi Industry (Contract Drivers) Contract Determination 1984 (unreported) Marks J, IRC6359 of 2004, 3 December 2004 HEARING DATES: 11/08/2006; 14/08/2006 EXTEMPORE JUDGMENT DATE: 08/14/2006 APPLICANT Ms L Kyriacou Pigott Stinson Ratner Thom LEGAL REPRESENTATIVES: RESPONDENT Mr M Aird / Mr C Heuston Transport Workers' Union of Australia, New South Wales Branch JUDGMENT: - 3 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 14 August, 2006 Matter No IRC06/2904 Re: Taxi Industry (Contract Drivers) Contract Determination 1984 Application by the New South Wales Taxi Industry Association for variation of a contract determination pursuant to section 311 of the Industrial Relations Act 1996 DECISION (ex tempore) [2006] NSWIRComm 262 1 This decision concerns an application by the New South Wales Taxi Industry Association (the applicant) to vary the Taxi Industry (Contract Drivers) Contract Determination 1984 ('the Determination') pursuant to s311 of the Industrial Relations Act 1996 ('the Act'). The respondent is the Transport Workers' Union of Australia, New South Wales Branch. 2 The application was filed on 8 August 2006 and accompanied by an affidavit of urgency deposed to by Mr Owen Ratner, Solicitor on behalf of the applicant. The matter was listed on 11 August 2006 and adjourned at the Union's request for further hearing today. The Union had required more time to consider the application and the Commission reluctantly agreed to that course. 3 The application arises from the annual review, under the Passenger Transport Act 1990, by the Independent Pricing and Regulatory Tribunal of New South Wales (IPART) into taxi fares in New South Wales. The 2006 review recommended - and the New South Wales Government has adopted - a fare increase of 4% in the metropolitan transport district of Sydney which takes effect today, 14 August, 2006. 4 Since 2001, IPART has considered increases in taxi fares by assessing the rate of increases in taxi cost indices. This Commission has applied the methodology adopted by IPART in determining increased pay-ins from bailee drivers so that bailor operators are fairly compensated for the rise in their operating costs and so that bailee drivers retain the balance to fairly compensate them for the rises in their costs. The 2006 Report recommends that pay-ins will need to be increased by 2.4% to compensate taxi operators for increased costs. 5 The IPART Report identifies the percentage indices representing the driver's expenses as LPG fuel costs, driver's notional wages and cleaning. Notional wages is described as: "The notional price taxi drivers must be paid if they are to be induced to drive taxis rather than leave the industry. Changes in the cost item are measured by changes in the NSW wage cost index. 6 Reliance was had on decisions of His Honour Marks, J in 2004, Matter No. IRC04/6359 and of Connor, C in 2005, Matter No. IRC05/3361 where increases were approved by reference to the then applicable notional wage component in the IPART Report. Applying that same principle to the 2006 Report equates to 4.1%. 7 Ms Kyriacou, Solicitor for the applicant, submitted that: (a) as the Commission established a practice in 2001 of increasing the maximum pay-ins based on the conclusions reached in the IPART report; and (b) as this practice has been followed by the Commission in 2002, 2003, 2004 and 2005; and (c) as the applicant does not seek to alter the established practice in relation to the increase to maximum pay-ins but rather simply seeks to have this established practice applied in respect of the 2006 fare increases in the same form as the earlier decisions as a matter of judicial comity the established practice of the Commission should be followed in respect of this application. 8 The Union's position was one which neither supported nor opposed the application, but recognised the Commission's consistent treatment of the application in the recent past. The Union considers that IPART's approach does not appropriately recognise the rates paid to taxi drivers. 9 There is no doubt that the Commission has varied the contract determination consistently since at least 2003 in accordance with the formula found in the IPART Report. The fact that this occurred, notwithstanding the opposition of the Union, demonstrates that arbitrated decisions of the Commission should not be lightly departed from, particularly in the absence of a properly argued case. 10 On this occasion I see no good grounds for departing from that approach, particularly as the taxi fare increases apply from today and it would be unfair not to ensure an appropriate balance between the costs of the operator and the pay-in contribution from the driver at the earliest opportunity. 11 Accordingly I propose to vary the contract determination as submitted by the Taxi Industry Association in Schedule A to the application. The variation shall take effect from the 14th August, 2006. Peter J Sams, AM Deputy President 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.