Industrial Relations Commission of New South Wales CITATION: Tanya Mazza, Peter Shalala, Anthony La Grazia and Gregory Nettle v Syddeck Pty Ltd trading as Royale Limousines and anor. [2006] NSWIRComm 44 APPLICANTS: Tanya Mazza Peter Shalala Anthony La Grazia PARTIES: Gregory Nettle RESPONDENTS: Syddeck Pty Ltd t/as Royale Limousines and John Peter Bartolotta FILE NUMBER(S): IRC 3328, 4273, 4792 and 5404 of 2003 CORAM: Haylen J CATCHWORDS: Unfair contract - Industrial Relations Act 1996 - s 106 - engagement of chauffeurs to drive hire cars - employer asserts engagement to be as independent cotractors - applicants claim to be employed and covered by State Award - issue as to coverage of work by any award - arrangements found in their operation to provide for less than provided by award for same work - arrangement found to be unfair - orders proposed after discussion between parties Brown v Rezitis (1970) 127 CLR 157 at 168 Hollis v Vabu Pty Ltd (2001) 207 CLR 21 CASES CITED: Pugliano v Syddeck Pty Ltd (unreported, CIM, 6 September 2005) Re Motor Drivers and Conductors (State) and Chauffeurs (State) Conciliation Committees (1947) AR 12 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 Transport Workers' Union of New South Wales v Syddeck Pty Ltd t/as "Royale Limousines" [2003] NSWCIM C92 HEARING DATES: 26/09/2005; 27/09/2005; 29/09/2005; 31/01/2006; 01/02/2006 DATE OF JUDGMENT: 02/17/2006 APPLICANTS: Mr A Metcalfe of counsel SOLICITORS: LEGAL REPRESENTATIVES: Employment Lawyers RESPONDENTS: Mr J Bartolotta on behalf of both respondents JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: HAYLEN J 17 February 2006 Matter No IRC 3328 of 2003 Tanya Mazza v Syddeck Pty Ltd t/as Royale Limousines and anor. Application under s 106 of Industrial Relations Act 1996 Matter No IRC 4273 of 2003 Peter Shalala v Syddeck Pty Ltd t/as Royale Limousines and anor. Application under s 106 of Industrial Relations Act 1996 Matter No IRC 4729 of 2003 Anthony La Grazia v v Syddeck Pty Ltd t/as Royale Limousines and anor. Application under s 106 of Industrial Relations Act 1996 Matter No IRC 5404 of 2003 Gregory Nettle v Syddeck Pty Ltd t/as Royale Limousines and anor. Application under s 106 of Industrial Relations Act 1996 JUDGMENT [2006] NSWIRComm 44 BACKGROUND 1 Ms Tanya Mazza, Messrs Peter Shalala, Anthony La Grazia and Gregory Nettle have each made application under s 106 of the Industrial Relations Act 1996 in relation to their engagement by Syddeck Pty Ltd trading as "Royale Limousines". The first respondent is the corporation trading as Royale Limousines and the second respondent Mr John Peter Bartolotta was, at relevant times, the managing director of the company, a significant shareholder in it and referred to as the owner of the company by the applicants. 2 The background facts of each case are substantially similar: Each person was engaged by Royale Limousines to perform work as a chauffeur or hire car driver but with licence requirements to also drive buses for transportation of passengers. Each was ultimately asked to sign a contract identifying the applicant as an independent contractor and each agreed to obtain an Australian Business Number (ABN) for the purposes of performing these driving tasks. Each applicant alleges that, although they were meant to be independent contractors, they were not free to ply for hire by themselves but were required to use the booking systems of Royale Limousines. They did not usually takes fares themselves but accounted for the whole of the monies to Royale Limousines and used vehicles provided by Royale Limousines rather than vehicles provided by each applicant. They all asserted they were wholly under the control of Royale Limousines including when and where to work, what dress was to be worn and in almost every respect of the way in which the work was performed. The applicants, while noting the independent contractor arrangement, pleaded that, in effect, they were employees and that, in any event, the contractual arrangements returned them less than the relevant award (alleged to be the Transport Industry (State) Award) so that in its operation the contractual arrangement undermined the award regime in a way that was contrary to the public interest. There was also an allegation of failure to pay superannuation in accordance with legislative requirements. 3 The conduct of the case met with some procedural difficulties. Although originally legally represented, the corporate respondent's solicitors ultimately filed a notice of ceasing to act and, at the initial hearing of the matter, the first respondent was not represented. During the course of the case management of the applications, the second respondent Mr Bartolotta was represented but solicitors acting for him also filed a notice of ceasing to act and he indicated that he would be representing himself in the proceedings. In some of the applications, what might amount to a Reply was submitted by Mr Bartolotta together with a statement of his evidence. The applicants took those statements, where appropriate, as amounting to a Reply and filed responses based on the statement so filed. From the statements and documents filed by the second respondent, it appeared that the primary response against the applicants' claims was that they were all independent contractors, there was no unfairness in the arrangements and that the nature of their employment meant that they were not covered by the Transport Industry (State) Award. There was also an argument that chauffeurs or hire car drivers were not covered by an award. The respondents' position was that there was, therefore, no basis to the claims pursued by the applicants. 4 A further complication in the hearing of the matter was that, when it was called on the first day of a proposed four day hearing, Mr Bartolotta contacted the Court to advise that he been to a doctor and was suffering from an infectious illness, possibly whooping cough, that was highly contagious. Tests had been undertaken but the results would not be available for approximately 14 days and, in those circumstances, he was not proposing to attend the hearing. Later that day, a copy of a medical certificate for 5 working days was sent by facsimile transmission to the Court. By the third day of hearing, Counsel for the applicants submitted evidence suggesting that Mr Bartolotta was, in fact, working at the business of the first respondent and that, in the circumstances, the case should continue to finality whether or not Mr Bartolotta attended. The medical practitioner who supplied Mr Bartolotta with his medical certificate was summonsed to appear and gave evidence as to how he had formed his diagnosis: it is sufficient to state that the doctor thought that it was possible that Mr Bartolotta was suffering from whooping cough and confirmed the highly contagious nature of that illness. In those circumstances, the Court declined to complete the matter in the absence of Mr Bartolotta but made arrangements for the affidavit and documentary evidence of the applicants to be brought forward while reserving the right of the second respondent to challenge the admissibility of any of that evidence when he finally attended. On 29 September 2005 the matter was stood over for further hearing in February 2006. The case for each applicant 5 Although there was a great deal in common between the cases for each applicant, it is appropriate to summarise the particular circumstances of each of them. Tanya Mazza 6 Ms Mazza contacted the respondent in June 2001 and spoke to Mrs Anita Bartolotta (the second respondent's mother). She was told that she would need a hire car authority before she could be considered for work. On payment of a fee, that authority was procured after about four weeks. She arranged an interview with Mrs Bartolotta in about mid-July. At this meeting, Mrs Bartolotta offered her a position as a hire car/chauffeur but said that Ms Mazza would need an ABN. She was told that she would be working on commission, would have to obtain a street directory, a whiteboard marker and plastic sleeves, and an invoice book: there would be an invoice required every week from Ms Mazza. Ms Mazza was told that she had to provide her own black suit which was compulsory. Ms Mazza recalled that Mrs Bartolotta said that she would start the next day, after which they would talk about the conditions of employment and wages. At this point, Ms Mazza was not given anything in writing about the terms and conditions relating to the work. No mention was made of working as an independent contractor. 7 On 11 July 2001, Ms Mazza commenced performing work as a hire car driver/chauffeur and performed work in relation to the Sydney Casino. After that work, she was assigned to perform work in relation to the Veterans' Affairs Department and the Comcar Group. 8 Ms Mazza was required each Friday to provide a list of dates on which she could not work during the following week. This arrangement arose from the conversation with Mrs Bartolotta wherein Ms Mazza informed her that she had another position relating to promotional work. Mrs Bartolotta agreed to make arrangements whereby both engagements could be preserved. Under these arrangements, Ms Mazza did not work on Sundays, to which the first respondent agreed. In working for the first respondent, Ms Mazza said she worked a full day comprising anywhere between 10 to 12 hours. On days that she was committed to her promotional work, she worked approximately five hours, commencing at 6.00 am and finishing at about 1.00 pm. 9 Ms Mazza stated that she was not able to work for competitors or to work anywhere else in the industry. A car was always provided to her to drive and she never took it home - she always picked it up and left it at a designated place set by the first respondent. She said that she could not ply for trade on her own account nor bring in new customers for the first respondent. At all times she was meant to represent herself as an employee of the first respondent. Any monies she collected were given directly to the first respondent and she was unable to charge customers of the first respondent. Almost all the accounts had been pre-booked by the customer with the first respondent. The work was assigned to her by the first respondent or its agent. 10 On days when there were little or no driving duties required, Ms Mazza was told to do other duties including banking, post office pickups, making cups of tea, running messages, going on errands, taking cars belonging to senior officers of the first respondent or their friends for servicing, taking cars to mechanics and to smash repairers - these were all under the direct control of the first respondent. 11 The pay arrangements operated so that Ms Mazza was paid 6 weeks in arrears. She stated that she was working on a commission basis for the first two to three months and eventually received a monthly statement, including details of every job she had done on every day, but containing a total figure for the month: she was required to invoice the respondent to receive her commission. She was never informed of the commission percentage nor the gross amounts from which her remuneration was derived. It was not until she received a statement that she could see some of the matters in relation to which she was earning money. Ms Mazza stated that while performing duties other than driving the hire car or operating as a chauffeur when she was on commission, these non-driving duties were not paid for at all: the commission arrangement did not include these duties as part of her paid work. 12 In September 2001, an incident occurred in which Ms Mazza was required to drive a car to Kingsgrove for smash repairs but was told by Mrs Bartolotta that there was no-one to pick her up and that she should catch a train in order to return to Central where someone from the base could collect her. Ms Mazza let Mrs Bartolotta know that she was "not impressed" by having to perform the extra duty, not being paid for it and having to catch a train. Mrs Bartolotta said that she would talk to Mr John Bartolotta to see what could be done about this situation. 13 On the same day, Mr Bartolotta spoke to Ms Mazza and told her that he did not want to lose her as a driver and that he was prepared to place her on an hourly rate. Later that same night, Mrs Bartolotta telephoned and told Ms Mazza that she was a good worker and that the company wanted to keep her and that the hourly rate would be the best thing for her. Ms Mazza said she agreed to the hourly rate but still wished to think about the arrangement for a day or two. 14 On or about 4 October 2001, the first and second respondents gave Ms Mazza a document entitled "Independent Contract Agreement", dated 1 August 2001. Ms Mazza took that document home that night and read it. It purported to set out the terms and conditions of the contract between herself and the first respondent. Ms Mazza was concerned by this document because she had not agreed to many of the points and her concerns led her not to sign it. About a week after receiving that document, she spoke to Mr Bartolotta seeking explanations about matters that she thought were ambiguous. He told her that those matters could be fixed. She then asked to see the final document after these matters had been altered. 15 Ms Mazza said that from 3 October 2001 all her work was being paid at an hourly rate rather than on a commission basis. The hourly rate was fixed at $12 per hour plus GST. Ms Mazza worked on this basis up until 20 June 2002. During that period she was required to complete a document entitled "Daily Run Sheet" and to submit it to the respondent every day. 16 On 20 June 2002, an issue arose between Ms Mazza and Mrs Bartolotta in relation to two unscheduled jobs that could not be fitted into the hours available to Ms Mazza. Ms Mazza had given prior notice of her other engagement which was connected with her forthcoming marriage. Nevertheless, she was pressed to perform these two jobs which would have made it impossible for her to keep her other engagement. Ms Mazza ultimately agreed to do one of the jobs but not the second job. When Ms Mazza informed the respondents that the second job could not be accommodated, Mrs Bartolotta told her that if she did not do the job "as ordered", then she was no longer working for the first respondent. Ms Mazza took it that her position had been terminated and did not again perform work for the first respondent. 17 In relation to Ms Mazza's claim, Mr Bartolotta stated that she was never engaged as an employee under an industrial award and that the Transport Industry (State) Award did not cover chauffeurs employed by a hire car service. He had checked this out with inspectors of the Department of Industrial Relations together with the independent contractor arrangements that he had entered into with his drivers, including Ms Mazza. He was informed that these were appropriate and proper and otherwise in order. 18 Mr Bartolotta said that the applicant was employed under an independent contractor agreement that allowed her to refuse work on any or all days on which work was offered. It was made quite clear to Ms Mazza before she commenced work that she was being offered work as an independent contractor and she had accepted the work on that basis. She was told that she would need to provide the first respondent with an ABN because of this contractual arrangement, and she did so. A subsequent affidavit of Mr Bartolotta stated that, at interview, Ms Mazza was informed about the processes of invoicing on commission and that the commission rate was 32 percent, which was explained to her in detail. She was also told that normal commercial practice would apply and that she should be paid four weeks in arrears after invoicing: this was also industry practice. He said that it was also industry practice that, when a driver was on a paid shift and when driving duties were not available, contractors were required to wash their own and other vehicles on occasions. However, Ms Mazza was never directed to undertake errands or other duties and only did so on a voluntary basis or if she was doing something for herself and using a company vehicle when she might be asked to do something for the company as well. 19 Mr Bartolotta stated that, in the final weeks of her work with the first respondent, Ms Mazza became less available for work and failed to attend for work on a number of occasions when work was offered. The first respondent did not terminate her services, but Ms Mazza simply discontinued her work by failing to take up work that was offered. 20 In reply, Ms Mazza said that there was only one telephone call concerning the initial work and the need for her to have a driving authority and no mention was made of needing an ABN or the work being independent contracting work at that time. Ms Mazza denied that an exact rate of commission was ever told to her by the respondents, but she was given information by other drivers. The withholding period for invoices lodged was 6 weeks and not 4 weeks. She also stated that she did not volunteer for various errands when not driving and was clearly directed to perform those tasks. Peter Shalala 21 During November 2000, Mr Shalala applied for a position as chauffeur/hire car driver with the first respondent. He recalled attending a further interview with the second respondent John Bartolotta, who told him he was the owner and director of the company and was asked about his experience. Mr Shalala had been a taxi driver for many years and stated that he had relevant experience in the motor transport industry. Mr Bartolotta told him that he had the job but that he would have to get an ABN. At this point, no mention was made of remuneration nor hours of work. No written contract in any form was given to Mr Shalala or referred to or suggested by Mr Bartolotta. 22 After obtaining his ABN, Mr Shalala spoke to a representative of the first respondent but was told that he would have to obtain a bus authority and pay for it himself before he could commence work with the first respondent. After obtaining his bus licence, Mr Shalala was told that he could commence work at 6.00 am on 23 December 2000. He attended at that time and performed his first driving work at about 11.00 am. He was introduced to Mrs Bartolotta and a senior driver, who gave him some instructions about parking the stretched limousine. He finished work that afternoon at 5.30 pm and was asked to come back the next day at 6.00 am, finishing at 6.00 pm. He was asked to work on Christmas Day, but was unable to do so. He was given work on 26 December, starting at 6.30 am. He performed work through to New Year's Eve. While conversing with other staff, Mr Shalala was informed that the hourly rate was $12 and that 6 weeks' pay was withheld by the first respondent. He had not been told this by Mr or Mrs Bartolotta or anyone else on behalf of the first respondent. 23 Mr Shalala said that approaches were made to him to sign a contract after he commenced working but he ignored those approaches. Mr Shalala was then diagnosed in relation to a medical condition that required medication and radiotherapy. He offered his resignation but Mrs Bartolotta told him that they could work around his treatment and that he could work on. On that basis, Mr Shalala continued working although the work had an effect on his health. 24 Mr Shalala said his duties were not confined to driving clients but included collecting mail, shopping for various items for Mrs Bartolotta, washing company vehicles including the vehicle owned by the Chief Executive Officer of Star City Casino. While on reduced hours, Mr Shalala would start between 6.00 and 7.00 am, working constantly until returning to the office at about 1.00 pm, when he would be told that he was allowed to leave. 25 During this work for the first respondent, Mr Shalala said that at no stage did he tender a tax invoice - his daily run sheet submitted to the respondent was apparently sufficient. On his payslip, GST was added to his gross pay and he paid that to the Australian Taxation Office (ATO) every 3 months. No personal income tax was deducted from the amount paid to him. 26 Mr Shalala was not allowed to perform work elsewhere and had to work exclusively for the first respondent. He was told when to arrive, when he could eat and when he was allowed to go home. He had no authority from the respondents to direct other drivers or staff in any way. He was required to complete a daily run sheet that particularised job numbers, hours worked and other details required by the first respondent. All work was allocated by the radio operator: Mr Shalala was forbidden to ply for hire on his own account. Mr Shalala was required to use the first respondent's vehicle and radio equipment to service its clientele. All work was invoiced by the office - occasionally he collected monies on its behalf. 27 In some weeks, Mr Shalala worked in excess of 38 hours per week but continued to receive the same flat hourly rate of pay which was $12. He regularly worked five days a week between 7.00 am and 12.00 pm although he would also frequently finish as late in the day as 3.00 pm and sometimes 6.00 pm. He was required to wear a black suit and a white shirt - a black tie was supplied by the first respondent. He paid all laundry and drycleaning bills for his work clothes. 28 There were times when Mr Shalala was sent out all day to work on Department of Veterans' Affairs jobs, or directed to take buses to the Road Transport Authority for annual inspections. He was required to replace lighting in the buses, fill them with diesel, and ensure that they were clean inside. When he went on holidays, he was not paid an annual leave loading nor was he paid a sick leave loading. No superannuation contributions were made on his behalf by the first respondent. 29 Mr Bartolotta filed a statement denying that Mr Shalala had been employed under an award and denying that the Transport Industry (State) Award applied to chauffeurs employed by a hire car service. He asserted that Mr Shalala had been employed under an independent contractor agreement that allowed him to refuse work on any or all days for which he was offered work. Mr Bartolotta said that Mr Shalala was told before commencing work that he was being offered work as an independent contractor which was the basis on which the work was accepted. This was explained to him at interview. In a subsequent affidavit, Mr Bartolotta said that, during the interview with Mr Shalala, he was advised that superannuation, sick leave, annual leave etc. were not applicable to this contract work and that he had been aware of this through his previous work in the taxi industry. During interview, Mr Shalala had explained to him the process of invoicing, the rate of hourly pay and the operation of the business practice where four weeks' pay would be held by the first respondent after the initial invoice had been submitted by the applicant. Any errands or additional duties were performed voluntarily by Mr Shalala although industry practice was that, while on a paid shift when driving duties were not available, contractors were required to wash their own and other vehicles from time to time. 30 Mr Bartolotta said that Mr Shalala, although regularly asked to provide invoices, declined to do so and so the company calculated his payments from his daily running sheets and provided him with a contractor remittance advice, showing gross payments with the GST included. This was not a pay slip. Mr Shalala did not query these contractual relationships. Mr Bartolotta said that Mr Shalala did have the opportunity to work for other companies and the right to refuse any or all shifts offered - this was permitted to happen under contractor arrangements. It was accepted that Mr Shalala often worked a five day week at the start and finish hours offered. 31 In his affidavit in reply, Mr Shalala denied that, when he commenced work with the first respondent, he was told that he would be a contractor: nothing like that was ever mentioned to him. He was told to have an ABN and to register for GST at the ATO. There was no mention at the interview about the payment of superannuation, sick leave or annual leave. Mr Shalala thought that he had been employed on a casual basis and that he would be contacted whenever he was required by the first respondent. Mr Shalala also denied that, at the interview, he was told of the process of invoicing and the hourly rate, nor was the normal business practice of withholding 6 weeks' pay explained to him. There was no contract agreed to or written contract signed with the first respondent. 32 While Mr Shalala accepted that he could be required to wash his car from time to time, there were a number of duties that he was directed to perform, including errands performed without a car, banking and other duties. Sometimes there was so much of this work that there was little time for his own lunchbreak. He was clearly told by Mrs Bartolotta that he was not to work for anyone else in the industry. Anthony La Grazia 33 Mr La Grazia participated in an interview with Mrs Bartolotta in October 1999 in relation to obtaining work with the first respondent. He wanted work on a fulltime basis. He was asked to perform work for a few hours on 9 October as a trial run and was then asked to return the following day during which he believed he performed a full day's work. At the time, Mr La Grazia was employed as an owner/driver in the courier industry. Mrs Bartolotta told him that he was "good" and that he should keep returning for work. He regarded that as meaning he was in fulltime employment and he asked Mrs Bartolotta about the rate of pay. He was told that her son, John Bartolotta, would deal with that issue since he was the owner of the company. 34 Mr La Grazia resigned his position as a contract courier. In about mid-October 1999, on a weekend, he met Mr John Bartolotta at his office and was told that he had the job and that he was to start as soon as he could. He informed Mr Bartolotta that, as a contract courier, he was making $800 gross per week, which left him less than $600 per week nett, that he could not survive on this amount and take care of his family and that he was seeking long term secure fulltime employment. He told Mr Bartolotta that he needed at least $600, if not more, per week in his hand. Mr Bartolotta agreed to pay a gross figure that would give that amount clear. He was told the hours of work were from 6.00 am to 6.00 pm five days a week and that his work arrangements were to be kept private because everybody was on an individual arrangement. 35 Mr La Grazia commenced his work on 14 October 1999 at 6.00 am. His work was allocated through a radio set in the car which was the normal practice. During that week, he worked not less than 12 hours per day, mainly doing work for the Department of Veterans' Affairs. He was given a car to take home so that he could get to any place that was notified to him and from where he could pick up customers. 36 He was told he had to supply black pants and a black jacket, to always wear a white shirt and was given a "Royale Limousines" tie. All work was arranged by the first respondent and, at the start, most of his work was picking up clients from Veterans' Affairs to take them to Concord Hospital or other hospitals or medical practices. Mr La Grazia had no say in any work that was to be performed but simply followed directions given by the first respondent. He received these directions either the night before by telephone or by radio when he reported to the base. After he started this work for the first respondent, it was only when speaking with other drivers that he understand that some of them were being paid on commission but that he was not entitled to the same rate because he had arranged a contract and did not receive commission. The work was under the total control of the first respondent: he could not take a break without permission. There were no regular breaks and the base had to be notified if there was to be any break in the work including visits to the toilet whilst on the road, or any other mealbreaks or rest breaks. He understood that he could not work for anyone else and had to take care of the car including its garaging and parking in a safe position, cleaning it and sometimes performing minor maintenance or repairs on the car. If there was any accident for which he was responsible he had to pay for the repair of the car. He had been told this by Mrs Bartolotta on directions from Mr Bartolotta. 37 Mrs Bartolotta required him to wash her car, do messages for her such as getting her mail, her coffee, lunches and driving her personal car for fuel. Similar duties were performed for the CEO of the Star City Casino. These duties were performed between driving jobs. These additional duties were also performed for Mr Bartolotta and his wife. 38 Because of his wife's illness, Mr La Grazia asked for additional work and more money. Arrangements were made through Mrs Bartolotta for his work arrangements to be altered so that he could attend to his wife in Melbourne. Then he was told that Saturday and Sunday work could be made available to him. Mr La Grazia said that he started working on Saturdays and Sundays, often for 12 hours a day. For the first 6 months, however, he was not paid any more than the $600 he usually received per week, although he thought he would receive extra money for doing this work After doing this work for some weeks, he asked Mr Bartolotta why he was not being paid extra for the Saturday/Sunday work and was told that their agreement was that he accepted $600 for whatever work was to be performed. 39 Soon after commencing work for the respondent, Mr La Grazia found that, when he finished his 12 hour shift and after taking the car home as directed by the first respondent, he would receive calls from the respondent asking him to do extra work, which he agreed to perform. This work was mainly for Comcar and involved driving Members of Parliament and senior officers of Government departments. These requests occurred three or four times a week and, initially, he accepted the work but, when he found that he was not being paid extra for doing Saturday and Sunday work, he declined to do the work. Mr La Grazia said that he received no money for doing that Comcar work. 40 While working with the first respondent as a hire car driver/chauffeur, he was not allowed to delegate his duties to anyone else. When GST was introduced around mid-2000, Mr Bartolotta told all the drivers, including Mr La Grazia, that all drivers would work for the first respondent as independent contractors, and that they would all have to obtain an ABN. Mr Bartolotta explained that was the requirement of the law. Mr La Grazia had no reason to disbelieve him and so obtained his ABN and gave the details to the first respondent. Mr La Grazia said that he was told by Mr Bartolotta that the hours were 12 hours per day, five days per week and that he worked from 6.00 am to 6.00 pm, although he often worked after 6.00 pm: there were no shifts he worked that were under 12 hours in duration. 41 During November or December 2000, family difficulties required Mr La Grazia to leave Royale Limousines and relocate to Melbourne for several weeks. When he returned, he was working for another company and Mrs Bartolotta contacted him and asked him to resume with the first respondent. There were several such approaches in which he was told he was a good driver to which he replied that he would return if the first respondent would give him work Mondays to Fridays, only day shift work and he wanted at least the same money he was earning before. Mrs Bartolotta said she would ask Mr Bartolotta and later returned to Mr La Grazia and told him that he could start work immediately but that he needed to get a bus authority so that he could work out of the Star City Casino only - being the best job that the respondent had available. Mr La Grazia said that he could not afford to obtain a bus authority and, ultimately, Mrs Bartolotta said that she would pay for the licence if he returned to work for the first respondent. Mr La Grazia resigned from his other employment and returned to the first respondent. 42 On returning to this work, Mr La Grazia did drive the bus on occasions in relation to the Casino, but he also performed hire car/chauffeur work, working only Monday to Friday with no other commission work. There were occasions when there were major sporting events when he would help out, but this work was never paid for as additional work. 43 In about February 2002, Mrs Bartolotta asked Mr La Grazia if he would take on the role of radio operator because the present operator was leaving. Mr La Grazia did not want this work and declined it. Some days later, he was directed by Mrs Bartolotta to perform the duties of the radio operator. He regarded himself as having no choice in the matter. He was told that the position was temporary: he ended up working in the position fulltime. He worked Monday to Friday for a minimum of 12 hours a day, commencing at 6.00 am. While performing work as the radio operator, he was required to drive on a few occasions during international sporting events. While working as the radio operator, he was not allowed to take a lunch break and it was therefore a straight 12 hour shift performed each day. Any additional hours were worked in relation to driving duties or, on occasions, extra radio operator duties concerning international sporting events. 44 In August 2002, while driving his own vehicle, Mr La Grazia sustained injuries in an accident that required leave from his work with the first respondent. He was off work for approximately two weeks seeking medical treatment: he received many calls from the first respondent enquiring when he could come back to work and putting him under pressure to return to work. Mr La Grazia did return to work but found difficulty in performing the duties because of his condition. He supplied the first respondent with medical certificates. He was also required to undertake physiotherapy. The physiotherapy treatment caused difficulties because someone else had to perform his work. He was often told that, if he couldn't do the work, he should look for employment elsewhere. Because of his condition, Mr La Grazia asked Mrs Bartolotta for time off work as it was not assisting his health. While at home, having taken a week off, Mrs Bartolotta telephoned him and said he was needed straight away and that, if he could not do the work, the company would have to look for another radio operator. After a discussion about Mr La Grazia's inability to return to work, he was told they would have to look for another radio operator: he regarded himself as being terminated. He was later telephoned by another person in the first respondent's employ and advised that he had been "finished" and should look for other work. Mr La Grazia then looked for other work and, about a week after being terminated, obtained alternative employment. He was again contacted by Mrs Bartolotta, who queried why he had not returned and advised that he had only been replaced as the radio operator, not as a driver although his work had been as the radio operator. Mr La Grazia declined to return to this work. 45 Mr La Grazia said that, during his engagement with the first respondent, he was always paid in arrears and he regarded himself as being owed a further week at $600 clear that had not been paid at the end of his engagement. When he queried Mr Bartolotta about his missing pay, he was told that Mrs Bartolotta had informed Mr Bartolotta that Mr La Grazia had simply left without explanation. On a number of occasions, Mr La Grazia attempted to finalise the position with Mr Bartolotta and was informed that he owed the company money because it had paid for his bus authority and had been told so by Mrs Bartolotta. Mr Bartolotta then required a letter of resignation, details of the motor vehicle accident as well as medical records, after receipt of which he would provide the final payment to Mr La Grazia. Although those things were provided to Mr Bartolotta, Mr La Grazia received no further money from the first respondent. 46 In Mr La Grazia's view, he was always an employee when driving cars for the first respondent. He did not take money from customers: it was prepaid work over which the respondents had complete control. He had to report regularly, the respondent assigned all his work and he was not allowed to ply for other trade. He was required to wear the company tie and to represent the first respondent everywhere he performed work. He was paid a flat hourly rate whether there were 38 hours or more worked, and was never provided with shift allowances, tea money, tea breaks or lunches, especially when driving. He had to take care of the first respondent's vehicle by garaging and cleaning it and carrying out basic maintenance on it. He also performed other duties such as administrative duties, banking, getting lunches and coffees, taking other important clients' cars for washing, fuelling and cleaning, picking up documents and delivering cars for repairs to mechanics. 47 In response to Mr La Grazia's evidence, the respondents claimed that he was never engaged as an employee but as an independent contractor and had accepted the position on that basis. It was also asserted that the Transport Industry (State) Award did not apply. In relation to his work as a radio operator, it was asserted that Mr La Grazia was paid above the Clerical and Administrative Employees Hire Cars and Taxis (State) Award. It was also stated that the applicant was able to delegate the work he performed as a driver to a third party. The applicant had volunteered for such additional chores as performing errands and was able to take breaks, including lunch breaks, while performing his work. 48 In affidavit evidence, Mr Bartolotta said that, at interview, Mr La Grazia was told that the work was that of a contractor and that he would need an ABN before he started work. He stated that Mr La Grazia was told that he would not be paid superannuation, sick leave or annual leave and that Mr La Grazia knew that because he was already working as a contractor for a courier company. In addition, Mr La Grazia completed and signed a contractor application form and contract. He was initially paid on a commission basis and later, at his request, the contractor hourly rate. It was agreed that he did not wish to take the radio operator's position without receiving the award rate of pay which would be less than he was receiving as a contractor driver, but Mr La Grazia suggested that he would take on the job as a contractor being paid the same rate as a driver. This rate was well above the award rate. 49 In his affidavit in reply, Mr La Grazia said that, when he spoke to Mr Bartolotta at the interview before taking up the position, he asked whether he would be employed as a contractor and was told by Mr Bartolotta that he would not be a contractor and would not be paid on that basis. The need for an ABN only occurred around mid-2000 and was said to be a requirement of the law. Mr La Grazia denied that, at the interview, he was told that superannuation, sick leave and annual leave would not be paid. No written contract was provided to him. He had told Mrs Bartolotta that he was sick of being a contractor and wanted fulltime employment. Mr La Grazia denied signing any contract or that any contract was provided to him. He did receive a letter from Mr Bartolotta asking him to sign a document, but he did not sign it. 50 In relation to the work as a radio operator when he returned from Melbourne, Mr La Grazia said that he asked for $250 more a week because of the stress of the job and this was agreed to by Mrs Bartolotta. Mr La Grazia denied that Mr Bartolotta had indicated that he could take other people's work while a driver. If there was no driving work available he was obliged to run errands. There was no right to refuse any shifts and they were allocated by roster or over the two-way radio. Mr La Grazia regarded the work of the radio operator as that of an employee and he expected arrangements would be made for superannuation to be paid. He could not be given a break in his work as a radio operator as he was told that there was no one available to fill the position at such times. Gregory Nettle 51 In December 1999, Mr Nettle spoke with Mrs Bartolotta about working for the first respondent. At that time, he had a hire car authority but he was told that he needed a bus authority before he could start work and then work would be provided on a casual basis on weekends and then during the week. At that time, Mr Nettle was engaged in the Police Service and could only work on weekends and on his days off. That arrangement was accepted. By the end of January 2000, Mr Nettle had obtained a driver's licence and completed examinations costing $770 and had then attended a bus course at a cost of $150 to obtain his bus authority. 52 In early February 2000, he had a discussion with Mr Bartolotta who told him he would have to obtain an ABN and prepare invoices for all work performed, to be submitted weekly before being paid. He had to register for GST and pay GST and PAYG instalments every quarter to the Australian Taxation Office. Mr Bartolotta did not mention superannuation, holiday or sick pay and there was no letter of agreement outlining conditions or the amount of pay. He was told that the hours of work were varied, depending on the workload but, generally, would be about 12 hours per day. 53 Mr Nettle commenced driving for the first respondent on 16 February 2000 in a casual position and his hours varied from five hours to as high as 16.5 hours per shift plus work on weekends. He was paid a flat rate of $12 per hour while driving cars, and $14 per hour when driving buses. His principal work was at the Casino and also included other corporate work. When not engaged on driving assignments, he was instructed by either Mr or Mrs Bartolotta to perform other tasks such as washing cars, taking vehicles to be refuelled or serviced, doing banking, messages to a post office and shops including purchasing bread and coffees, performing minor repairs to cars and buses and conveying paperwork to different areas. He was issued with a company tie but had to supply his own black pants and jacket and white shirt. 54 In the first six months of working for the first respondent, Mr Nettle worked a variety of hours according to his availability. He did not supply his own car but drove a number of vehicles provided by the first respondent. He did not pay for the running costs of those vehicles and he did not ply for any trade on his own account or use the vehicles for any purpose other than as directed by the first respondent. He regarded himself as being under the control of the first respondent in terms of the work he performed and he also represented the first respondent with the customers at all times. He did not collect monies except as directed and, where the exact number of hours was unknown, he collected cash or credit card payments. Money collected in that way was signed for on completion of the job and most of the money was paid to the first respondent. 55 In July 2000, Mr Nettle resigned from the Police Force and took some leave. At this time he approached Mr Bartolotta saying he was available as a permanent driver on the completion of moving house. Mr Bartolotta agreed and Mr Nettle said that from 5 August 2000 he became a permanent worker for the first respondent. The shifts continued to vary as they did when he was working casually: they started and finished at all times of the day and night. The shift times were determined by Mr or Mrs Bartolotta and sometimes by the radio operator. The number of days off varied and there were telephone directions to start work either late or earlier. There were some weeks when he only got one day off a week and on other occasions he would get two days off. There were some weeks when there were no days off work and no days were provided in lieu. No matter whether he was performing the morning or afternoon shift he was paid the same flat rate. When he performed the night shift between 6.00 pm and 6.00 am he was paid $14 gross per hour whether he drove a car or a bus. 56 In mid-January 2002, Mr Nettle left the first respondent to work as a security officer for Star City but resigned in mid-February 2002. He still had not received all his payment from the first respondent but was then told to start work again for the first respondent by Mrs Bartolotta. Having no employment at the time, Mr Nettle did commence work again for the first respondent but only on the basis that he would work from 6.00 am to 6.00 pm Monday to Friday although there were some variations and he worked Saturdays if required. By October 2002, he had obtained advice from the Australian Taxation Office and, acting on that advice cancelled his registration for the GST as he was earning less than $50,000 per annum. He was required to pay PAYG amounts and in respect of his invoices he did not add a GST amount from that time on. In December 2002, the hourly rate was increased for driving a car from $12 per hour to $14 gross. The pay for driving a bus increased from $14 per hour to $18 per hour gross. Mr Nettle performed only a small amount of bus driving work, averaging about 4 - 6 hours per week. 57 Although there was meant to be a half hour lunch break for each shift, the priority of the first respondent was always to attend to the work on hand and so there were many occasions when the lunch break was either cut short or was not available to be taken at all. Mr Nettle found it hard to have a smoke break or even go to the toilet while performing work for the Department of Veterans Affairs' or Commcar. If there was any break in driving a bus or a hire care, he was performing other duties such as getting lunches, doing banking, moving cars, washing cars, going to the post office, grocery shopping or dropping cars off for servicing and maintenance. The first respondent did not pay him holiday pay, sick pay or any overtime rates, shift penalties or meal allowances. The first respondent did not pay superannuation. 58 On 14 May 2001, the first respondent distributed an "Independent Contractor Agreement" but Mr Nettle did not sign it. Mr Nettle thought that the respondents were trying to re-define his employment contract and attempting to make him a contractor and for that reason he did not sign the document. Up until 5 August 2000, while working as a casual driver, he was not paid any casual loading by the respondents. 59 In July 2003, Mr Bartolotta spoke to Mr Nettle asking him why he did not leave and seek other work. Mr Nettle was upset by this and some days later informed Mr Bartolotta was looking for another job. Late in July 2000, Mr Bartolotta said to him that he could be made an employee but he could only work eight hours per day Monday to Friday, would get very little overtime and any tips received from customers would have to go to the company. Mr Nettle said he was surprised by what was said as he believed he was an employee. Mr Bartolotta told him to come to the office and they would sign the paperwork to give effect to him becoming an employee. Mr Nettle told him that he was looking for other work. In September 2003, Mr Nettle resigned from the first respondent. When he resigned, Mr Nettle asked for the payment of seven outstanding invoices. Despite Mr Bartolotta saying he would pay the invoices, they have not been paid. 60 In the respondents' Reply to the Summons for Relief in this matter, it was claimed that Mr Nettle applied for a position as a contractor and completed a Contractor application form at the interview. The respondents denied that any award applied to the work and asserted that the applicant did not work in excess of 38 hours at any time. 61 In his Affidavit in Reply, Mr Bartolotta said that in the February 2000 interview he told Mr Nettle that the work was that of a contractor and that he would need an ABN number and to be registered for the GST with the Australian Taxation Office. It was explained to Mr Nettle that superannuation, sick leave and annual leave were not applicable to this work. During the interview, the process of invoicing and the rate of hourly payment was explained in detail and the contract was agreed to verbally as was the industry practice at the time. 62 Mr Bartolotta said that Mr Nettle was offered night shifts but refused them and was able to do so under the contractor arrangements. He also had the opportunity to work for other companies or the right to refuse any or all shifts offered. It was consistent with industry practice that when on a paid shift and no driving duties were available, the contractor was required to wash their own and other vehicles. Mr Bartolotta said that Mr Nettle was never directed to undertake errands or other duties but they were taken up on a voluntary basis. Mr Nettle had been advised that it was his responsibility to ensure that he had a lunch break at appropriate times and he was provided with free lunch vouchers. He was paid for all invoices submitted and there were no invoices that remained unpaid. Mr Nettle confirmed the contents of his original affidavit and rejected the evidence submitted by Mr Bartolotta. FURTHER EVIDENCE AT TRIAL 63 Mr Rodney Mitchell, solicitor for the applicants, gave evidence by way of affidavit of the method used by reference to source documents for the calculation of the money order sought in each case. By establishing the days or hours worked by each applicant, the amount paid by the first respondent and the award rate for that work set by the Transport Industry (State) Award, it was calculated that Mr La Grazia was owed a total of $52,296.40 comprising $21,171.52 in wages, reasonable notice of three weeks of $3,245.56, unpaid annual leave of $11,337.43 and interest of $10,862.56. In addition, it was claimed that $4,357.70 was owed in superannuation with an additional $1,321.63 owed by way of interest on unpaid superannuation. The interest was calculated by reference to the Supreme Court Rules, now encompassed by the Civil Procedure Act 2005. 64 In relation to Ms Mazza, it was calculated that, by reference to the award, she had been underpaid $9,691.76 with interest of $3,157.19 on that amount. Payments due under the Superannuation Guarantee levy amounted to $1,344.28 with interest on that amount of $437.91, annual leave in the sum of $979.16 and interest on that amount was $318.36 together with a claim of three weeks in lieu of notice totalling $1,733.43 with interest on that amount of $564.07. In total, it was claimed that Ms Mazza was owed $18,226.16. 65 In relation to Mr Shalala, it was alleged that there was a payment below the award for the period worked of $12,348.33 with interest on that amount of $3,593.28. It was alleged that superannuation was owed in the sum of $3,137.84 with interest on that sum totalling $917.96. There was a claim for $3,139.18 for annual leave with interest on that amount totalling $917.96. The total said to be owed to Mr Shalala was $24,054.55. 66 In relation to Mr Nettle, directions were made during the hearing for the detailed calculations to be filed and served after the matter was reserved for judgment, bearing in mind the common theme present in all applications. In due course an affidavit sworn by Mr Mitchelll with numerous annexures was filed verifying the various aspects of the claim. Mr Nettle claims a total of $125,692.47 covering periods of casual and permanent employment together with amounts for annual leave, superannuation and interest. In accordance with the Court's directions, that affidavit was accepted as part of the applicant's evidence. 67 Mr Mitchell had conducted a search for awards that might cover the work of chauffeur/driver as performed by the applicants and concluded that, in his view, the only award that was applicable was the Transport Industry (State) Award. In coming to this conclusion, he had relied on a number of years' experience as an organiser in the Transport Workers' Union of New South Wales spanning the years 1979 to 1988. The parties accepted that the coverage of this award was a matter in issue and Mr Mitchell was not otherwise required for cross-examination. 68 With leave, Mr Bartolotta filed in Court a further Statement of Evidence which he adopted under oath. In that document, Mr Bartolotta stated that he was the managing director of Syddeck Pty Ltd and had been so since July 1989 when he purchased the business. He described the first respondent as operating a hire car service and that it was an accredited hire car operator with the Department of Transport. He accepted that the business of the first respondent was transporting passengers by car for a fee. 69 When Mr Bartolotta purchased the business he became a member of the Motor Traders' Association of New South Wales and enquired whether there was any award coverage for the drivers then engaged. Both the Motor Traders' Association and the New South Wales Office of Industrial Relations had advised him that there was no award coverage for such work and in those early days the arrangement was one of bailor/bailee. In later years, because of drivers' dissatisfaction with this arrangement, Mr Bartolotta agreed to pay the drivers by way of commission. In approximately mid-1999, following an expansion of the first respondent's hire car service, Mr Bartolotta made further enquiries of the New South Wales Office of Industrial Relations as to what award, if any, applied to chauffeurs employed by a hire car service. Again, he was advised that no award covered the work performed by chauffeurs employed by a hire car service in New South Wales and an on-site audit by the New South Wales Office of Industrial Relations confirmed that there was no difficulty with the hourly rate of $12 for day shifts and $15 for night shifts that were being paid to these drivers as independent contractors. In 2003, Mr Bartolotta again confirmed with the Department of Industrial Relations that no award covered the work performed by chauffeurs employed by a hire car service and that position was stated on a Departmental website. Mr Bartolotta stated that as the managing director of the first respondent he took all reasonable steps to comply with the industrial relations law of New South Wales for the hire car industry and did not believe that he had treated the applicants unfairly. 70 In cross-examination, Mr Bartolotta accepted that, in his position of managing director of the first respondent, he directed the day to day operations of the company. He was directly involved in the process of hiring the applicants and, although in some cases his mother had interviewed the applicants before their engagement, he had made the final decision. Between 1999 and 2002, each of the applicants had been engaged by the first respondent trading as Royale Limousines and that company offered hire car services to the public, private bodies such as the Casino and government departments. The hire car service could be booked by direct approach to the drivers, by telephoning the company or by booking on the internet using the company's website. 71 In relation to the engagement of Mr La Grazia, Mr Bartolotta rejected the applicant's evidence that he had not been told that no payment would be made for superannuation and holidays. Mr La Grazia had initially been engaged on commission but had then been put on an hourly rate. A number of drivers complained that the commission rate did not pay sufficiently, especially when there was a lot of standby work so they sought an hourly rate while on duty. Mr Bartolotta also stated that, having been informed by both the Motor Traders' Association and the Department of Industrial Relations, no award applied to chauffeurs of hire cars, he had assumed that they could only be engaged as independent contractors. DELIBERATION 72 The summons for relief in each matter sought orders declaring the contract between the applicants and the first respondent as being unfair in permitting the first respondent to "characterise the applicant as an independent contractor and not as the employee of the first respondent". Each applicant also sought an order declaring the contract between the applicant and the first respondent void ab initio "insofar as it characterised the applicant as an independent contractor and not as the employee of the first respondent". Further, it was alleged that the contract between the applicants and the first respondent was unfair insofar as it was designed to, or did in its operation, avoid the provisions of an industrial instrument, namely, the Transport Industry (State) Award. Additional unfairness was claimed in relation to the failure to make superannuation payments in accordance with the provisions of the Superannuation Guarantee (Administration) Act (Cth) 1992. In relation to Ms Mazza and Mr La Grazia, it was alleged that there was a failure to provide reasonable notice on the termination of their engagement. 73 In submissions, the applicants confirmed that their primary argument was that they were effectively employees and not independent contractors and that the arrangement whereby they performed work for the first respondent resulted in them being paid less than the appropriate award rate for that work, being the rate set from time to time by the Transport Industry (State) Award. In the alternative, it was submitted that, if the relationship between the applicants and the first respondent was not capable of being categorised as an employment relationship, nevertheless, the terms of that arrangement in its operation were very close to an employment relationship and the arrangement, in its operation, returned to each applicant a total remuneration less than that set by the Transport Industry (State) Award for the same class of work. 74 In relation to the applicants' first proposition that they were effectively employees of the first respondent, it was submitted that the following aspects of the arrangement were relevant: (a) the applicants did not "ply for hire", as in the case of taxi drivers especially under bailment arrangements. Here, the first respondent exercised a high degree of control over the drivers and the drivers worked at the direction of the first respondent's radio allocator in relation to the work to be performed. Mostly the work was pre-booked such as work for the Star City Casino or government departments, and these bookings arose from separate contractual arrangements between the first respondent and its clients. Neither was there a "joint adventure" element to the arrangement such as existed in a bailment; (b) when not performing driving duties, the applicants were directed to perform miscellaneous tasks apart from tasks associated with maintaining the vehicles they were driving; (c) the applicants did not drive their own vehicles but at all times drove vehicles provided by the respondent. The applicants provided no significant capital items in performing the work. In addition, the evidence disclosed that the first respondent required drivers to observe a dress code (black suit and white shirt to be provided by the employees). The company provided them with a corporate tie which was to be worn as part of the uniform. The drivers were the representatives of the first respondent when driving the first respondent's clients. The first respondent issued directions as to performance of the work including the extension of shift times contrary to arrangements with the drivers and threatened termination if those directions were not obeyed. Further, the drivers were predominantly paid an hourly rate with a guaranteed weekly minimum rate of pay. Invariably it was the weekly rate of pay that was ultimately paid to the drivers although there were occasional exceptions not clearly explained in the evidence. Ms Mazza's position was somewhat unusual in that she was engaged when available and in recognition of other employment that she wished to pursue. The financial records of the first respondent appeared to treat Ms Mazza as a casual. 75 The applicants argued that the evidence in this case was indistinguishable from the evidence before the Chief Industrial Magistrate in different proceedings, namely Transport Workers' Union of New South Wales v Syddeck Pty Ltd t/as "Royale Limousines" [2003] NSWCIM C92 and in Pugliano v Syddeck Pty Ltd (unreported, CIM, 6 September 2005). In the first mentioned case, the Chief Industrial Magistrate found that in the application of tests laid down in cases such as Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 and Hollis v Vabu Pty Ltd (2001) 207 CLR 21, having regard to the nature of the services rendered and the manner of control exercised by the first respondent, the drivers were doing nothing more than any other employee, namely, providing their own labour and nothing else while working under the detailed control of the first respondent. His Honour the Chief Industrial Magistrate found an "overwhelming" case that the drivers were employees of the first respondent. It was pointed out that in case that one of the main arguments for the first respondent was that the drivers had been taxed as contractors but that element of the arrangement was not found to be determinative of the issue. 76 Against the above considerations, the evidence disclosed the following matters that are required to be taken into account: (a) the drivers paid for their own licences and authorities, especially in relation to larger vehicles such as buses; (b) no tax was deducted from the applicants' pay and they received a portion equivalent to the GST which was remitted to the Taxation Office; (c) the drivers were to submit a weekly invoice in relation to the jobs completed. The first respondent held up to six weeks' remuneration in hand before paying the applicants' in accordance with the submitted invoices; (d) although most of these arrangements with the applicants continued for some time, no sick leave was paid or annual leave provided to them. (e) Each applicant was required to provide an ABN in order to perform or continue performing the work. 77 In addition to these matters that appeared to be common to all cases, there were specific matters in relation to each applicant that require consideration: (a) Ms Mazza's evidence was that she was never engaged as an independent contractor and that she did not sign an independent contractor's agreement as proposed by the first respondent in October 2001. She was aware that she could not work for competitors and was required to work solely for the first respondent and initially worked on a commission basis but mostly worked on and was paid on an hourly rate. She prepared a daily run sheet every day and was required to submit it to the first respondent. Mr Bartolotta's evidence was that Ms Mazza could refuse to work on any day that work was offered to her; (b) Mr Shalala said that he had no written contract and was not told he would be an independent contractor when he started with the first respondent. He had refused to sign a contract as an independent contractor as was later offered to him by the first respondent. Mr Shalala thought he was employed casually when he started with the first respondent and he did not provide the first respondent with a tax invoice in order to be paid but rather used the first respondent's run sheets for that purposes. He understood that he worked exclusively for the first respondent and could not work elsewhere; (c) Mr La Grazia sought and thought he was given fulltime employment when he commenced working for the first respondent. He understood that he could not work for anyone else but the first respondent and that he could not delegate his driving duties to others. In relation to his work as the radio operator, this was just like fulltime employment. He gave a medical certificate to the first respondent when he was incapacitated such that it impeded his ability to perform the work. When the engagement came to an end Mr Bartolotta required him to submit a letter of resignation. Mr La Grazia said that when he spoke to Mr Bartolotta at the time of his engagement, he had raised the issue and had been told by Mr Bartolotta that he would not be engaged as a contractor but as an employee. Mr Bartolotta also told him that the ABN was required by law. There was no written contract ever signed by Mr La Grazia; (d) Mr Nettle started casual driving on weekends because of his other employment but he did not enter into a written contract. He agreed with Mr Bartolotta to become a "permanent" worker in August 2002 and, when later told he could be made an employee for less money, he was surprised because he thought he was an employee. He declined to sign an independent contractor agreement offered at a later time by the first respondent. 78 A weighing of these matters strongly points in the direction of the legal relationship between the applicants and the first respondent as being that of employee/employer. Mr Bartolotta was unable to tender any contract with an applicant nor was he able to identify a documented agreement to work as an independent contractor. In his oral evidence, Mr Bartolotta stated that, when he was told by the Motor Traders' Association and the Department of Industrial Relations that there was no award covering chauffeur drivers of hire cars, he believed that meant persons performing that work for the first respondent could only be independent contractors. Mr Bartolotta does not appear to have sought any advice about the status of his workers and appeared to be unaware of the notion of an award free employee. 79 In weighing this material, it should be noted that Mr Bartolotta did not cross-examine any of the applicants and that their affidavits in reply directly challenged a number of matters raised by Mr Bartolotta in his own evidence. Mr Bartolotta's evidence, for example, about the existence of written contracts as an independent contractor for some of the applicants became no more than a belief of Mr Bartolotta when shown certain unsigned documents during cross-examination. I formed the impression during the course of Mr Bartolotta's evidence that, in engaging the applicants as chauffeurs/drivers, Mr Bartolotta had been told that there was no award and thinking that the only other method of employment was that of an independent contractor, probably believed that was the only legal relationship he could be entering into with each of the applicants. He also apparently thought that requiring the provision of an ABN and paying on invoices would result in the applicants being engaged as independent contractors. Neither of the respondents seem to have obtained any advice as to how to engage the drivers as independent contractors. Indeed, some of the applicants thought they were engaged as employees and had specifically raised this issue with Mr Bartolotta. Mr Bartolotta did not deal with this evidence directly and seemed to give his evidence from his best recollection rather than by recourse to any particular record of the first respondent setting out the terms of the engagement. In those circumstances, without being critical of him, where there is a conflict between the evidence of an applicant and that of Mr Bartolotta, I would prefer the evidence of the applicant in each case. 80 An important clarification was made by Mr Bartolotta during the course of the case. Mr Bartolotta's evidence was that when he took over the business of the first respondent in 1989, there were payments by commission and seemingly, a use of the bailment arrangement common in the taxi industry. That system was altered towards the end of the 1990s, and Mr Bartolotta made it clear that there was no bailment arrangement with any of the applicants. 81 Although I have formed the view that there are strong indicators that the relationship between the applicants and the first respondent was that of employee/employer, I do not find it necessary to finally determine that issue. Having regard to the fact that Mr Bartolotta has appeared without legal representation and I have therefore not had the benefit of full argument as to the respondents' case, I believe the preferable course to adopt is to treat the engagement of each of the applicants as an arrangement within the width of that term as used in Chapter 2, Part 9 of the Industrial Relations Act 1996. There was no argument to the contrary and the evidence supports a finding that the arrangement between the applicants and the respondents was one whereby the applicants performed work (driving hire cars) in the transport industry. 82 Approaching the applicants' case on this basis, the unfair contracts provisions of the Act are, at least in part, directed at seeing that a worker is placed in no worse a position than if he had been working under a contract of employment protected by award conditions. The original provision, s 88F of the Industrial Arbitration Act 1942-1967, was thus described by Menzies J in Brown v Rezitis (1970) 127 CLR 157 at 168. The section is clearly intended to confer a comprehensive power on the Commission to go to the substance of an arrangement made for a person to perform work in an industry - and to do so in disregard of the legal dress in which the arrangement has been clothed - in order to put such worker in no worse a position than if he had been working under a contract of employment protected by award conditions. While that statement is not a comprehensive description of the present provisions, it remains an apt statement of the reach of s 106 and the operation of s 105(c) and (d): 83 Section 105 defines an unfair contract as meaning, inter alia, a contract that provides a total remuneration that is less than a person performing the work would receive as an employee performing the work. A further definition is a contract that is designed to, or does, avoid the provisions of an industrial instrument. These definitions refer to different but related circumstances. In the present case, I accept Mr Bartolotta's evidence that he made enquiries of the Motor Traders' Association and the Department of Industrial Relations on taking over the business and in the period when the present applicants were commencing or about to commence their engagement with the first respondent. He had satisfied himself that there was no relevant award covering the work of chauffeurs/drivers for hire car companies but does not appear to have made any enquiry as to whether there was a relevant rate for chauffeurs/drivers in any similar employment so that he could check the adequacy of the remuneration that would be made available to the first respondent's chauffeur/drivers. 84 On the evidence, I am unable to conclude that Mr Bartolotta deliberately set about to obtain this work for a rate less than the award but it was clear that by his various requirements Mr Bartolotta was seeking a remuneration level that would suit his and the first respondent's business interests. That remuneration level, I am satisfied on the evidence called by the applicants, provides a total remuneration that is less than a person performing the work would receive as an employee performing that work. The calculations submitted by the applicants in evidence were supported by a description of the source documents used (and in many cases the source documents themselves were tendered) and the manner in which the calculations were made in applying the Transport Industry (State) Award in each case. 85 Mr Bartolotta did not challenge the fact that the total remuneration paid to the applicants was less than what might have been paid under the award, as the respondents' primary case was that the award did not apply. During the hearing, when the source documents and calculations were tendered regarding the application of the provisions of the award, Mr Bartolotta did not object to that evidence but did indicate that he would wish to check them to ensure that work was performed on the days claimed and for the hours claimed. In substance, the claims were supported to some degree, often substantially, by reference to the respondents' own records. 86 In those circumstances I am satisfied that the applicants have each established that their arrangements with the first respondent were unfair in that they provided a total remuneration that was less than would be paid for the same work performed under the Transport Industry (State) Award and in the case of Mr La Grazia in his position as radio operator, having regard to the terms of the Clerical & Administrative Employees Hire Cars & Taxis (State) Award. Having reached this conclusion, it becomes necessary to consider the respondents' challenge to the coverage of the Transport award and to deal with the allegation that the work of the applicants for the first respondent was award free. COVERAGE OF HIRE CAR CHAUFFEUR/DRIVERS BY THE TRANSPORT INDUSTRY (STATE) AWARD? 87 As already indicated, a significant aspect of the respondents' case was that the drivers engaged by the first respondent were not employees but, rather, were independent contractors and that, in any event, the Transport Industry (State) Award and no other award set rates of pay and conditions of employment for chauffeurs employed by hire car companies. This aspect of the case assumed significant proportions because of a history of previous litigation involving the first respondent and drivers (other than the applicants) dealt with by the (then) Chief Industrial Magistrate. In those proceedings, contrary to argument advanced by the first respondent, his Honour the Chief Industrial Magistrate had found the drivers to be employees despite the terms of arrangements for providing their service by the use of ABN numbers and weekly invoices and, further, held that this work was covered by the Transport Industry (State) Award. An appeal against that finding had been effectively stayed by a Full Bench of the Commission, as the terms of the Chief Industrial Magistrate's original orders had not been complied with nor any stay of those orders sought. During the course of these proceedings, the Court was informed that although the first respondent desired to proceed with the appeal, no steps had yet been taken that would permit the appeal to proceed. 88 As previously noted, the second respondent Mr Bartolotta appeared for himself in these proceedings following the withdrawal of his legal representatives. The legal representatives for the company had also filed Notices of Ceasing to Act and because of the convergence of interests of the two parties, no objection was taken to Mr Bartolotta effectively making submissions on behalf of both respondents. While Mr Bartolotta has tertiary training he is not a lawyer and presented no legal argument in relation to the case and, in particular, in relation to this aspect of the respondents' case but merely relied upon advice by the Motor Traders' Association and representations by the Department of Industrial Relations that there was no award covering work performed by chauffeurs and drivers engaged by hire car companies. The absence of detailed submissions on this point has left the Court in the position of having to proceed with considerable caution in determining a question that may have wider ramifications. 89 Doing the best that is possible in such circumstances, it appears that the respondents' position hinges upon a decision made in 1947 by Webb J in Re Motor Drivers and Conductors (State) and Chauffeurs (State) Conciliation Committees (1947) AR 12. That decision concerned an application by the Transport Workers Union for alteration of the assignment of Industries and Callings to the Chauffeurs (State) Conciliation Committee and the Motor Drivers and Conductors (State) Committee. The Chauffeurs' Committee had been established for the Industries and Callings of chauffeurs and motor drivers, while the Motor Drivers and Conductors Committee had been established for motor drivers and conductors employed on motor coaches, cars, omnibuses and all passenger motor vehicles for hire or plying for hire, and all motor vehicles used for the purpose of carrying passengers or workmen, notwithstanding such vehicles were not for hire or plying for hire, other than motor wagons which were not used for the purpose of conveying passengers or workmen. Webb J noted that the applications were designed to limit the Industries and Callings covered by the Motor Drivers and Conductors Committee to employment on vehicles normally capable of carrying eight or more sitting passengers and to extend the Chauffeurs' Committee to include all employees now within the Motor Drivers and Conductors' Committee employed on vehicles normally capable of carrying less than eight sitting passengers or persons. There is nothing, however, in the decision that indicates a desire by the Union or any employer to have chauffeurs of hire cars totally removed from coverage by a Conciliation Committee. The Union's application appeared to be motivated by the width of the coverage of the Motor Drivers' Committee and the difficulty of securing members with suitable knowledge to sit on the Committee when dealing with chauffeur matters falling within its constitution. In passing, his Honour noted that no award had been made by 1947 within the jurisdiction of the Chauffeurs' (State) Committee. Webb J also commented that the applicants sought to have the seating capacity of motor vehicles "the determinant of the respective jurisdiction of the two Committees". 90 Ultimately, having regard to the diverse interests to be served by these Committees, his Honour decided that the more convenient arrangement would be to grant the application with respect to the Motor Drivers and Conductors (State) Committee that would result in no change to the existing representation and in place of the proposed Chauffeurs and Motor Car Drivers Committee there would be two Committees, one covering drivers for vehicles for hire and the other for drivers of vehicles not for hire. On this basis the Chauffeurs' Conciliation Committee was dissolved. 91 From documents in evidence it appears that in Vol 127 of the New South Wales Industrial Gazette dated 4 October 1957, the Chauffeurs &c State Award was gazetted with the Area, Incidence and Duration clause, cl 25, specifying that the award was to apply to all chauffeurs and drivers within the jurisdiction of the Motor Car &c Drivers (State) Conciliation Committee. The Industries and Callings of that Committee, so far as it is relevant to the present proceedings, were set out in the following terms: Chauffeurs and motor car drivers employed on motor carriages, cars and all motor vehicles, used for the purposes of carrying passengers, persons or workmen notwithstanding such vehicles are not plying for hire, provided that such vehicles are normally capable of carrying less than eight sitting passengers or persons ... 92 Also in evidence was an extract from Vol 231 of the Industrial Gazette for 30 November 1983 concerning the Transport Industry - Chauffeurs (State) Award, itself replacing a 1977 award and applying to chauffeurs and drivers within the jurisdiction of the Motor Cars &c Drivers (State) Conciliation Committee. The Industries and Callings of that Committee had not altered since the 1957 award. 93 An extract from Vol 270 of the Industrial Gazette dated 17 July 1992 showed that, on 13 December 1991, Deputy President Mills had rescinded the Transport Industry - Chauffeurs (State) Award published on 21 December 1977 and reprinted on 30 November 1983 (231 IG 1601). The order of rescission was to take effect from the beginning of the first pay period to commence on or after 13 December 1991. It also appears that the Hire (Motor) Car and Taxi Drivers (State) Conciliation Committee established on the recommendation of Webb J in 1947 was not reconstituted under the 1991 Act. There was no evidence as to why this application for recision was made, but there was an uncontested submission made on behalf of the applicants from the Bar table that at or about this time there was a general re-organisation and rationalisation of the Union's awards and a further rationalisation of the coverage of conciliation committees operating within the transport industry. That this appears to have occurred is supported by the terms of the Transport Industry (State) Award published on 26 September 1997 (Vol 301 I G 204). That award was to apply to employees in the classifications specified in the award within the jurisdiction of the Transport Industry (State) Industrial Committee. The constitution of that Committee contained, inter alia, Chauffeurs and motor car drivers employed on motor coaches, cars and all motor vehicles, used for the purpose of carrying passengers, persons or workmen notwithstanding such vehicles are not plying for hire, provided such vehicles are normally capable of carrying less than eight sitting passengers or persons ... It will be noted that this coverage is identical to the coverage and jurisdiction previously exercised by the Motor Car &c (State) Conciliation Committee. 94 Also in evidence were the terms of the Transport Industry (State) Award made on 31 March 2000 and published in Vol 315 of the Industrial Gazette. That award in cl 1.6 and Table 6 of Part B sets a rate of pay for chauffeurs/drivers of vehicles used for the purpose of carrying passengers. By cl 50, the Area, Incidence and Duration clause, the award was specified to apply to employees in the classifications specified within the award and also within the jurisdiction of the Transport Industry (State) Conciliation Committee. The industries and callings covered by that Conciliation Committee included the following: Chauffeurs and motor car drivers employed on motor coaches, cars and all motor vehicles, used for the purpose of carrying passengers, persons or workmen notwithstanding such vehicles are not plying for hire ... 95 The thrust of the argument based on the history of the Conciliation Committee appears to be that Webb J in 1947 proposed that there should be two Committees with one covering drivers of motor vehicles for hire or plying for hire and another covering drivers of vehicles not for hire. It appears however, that the same description was used for both Committees in relation to the Industries and Callings covered by the Committee. It may have been in this way that Webb J was addressing the Union's concern that the previously existing Committee had difficulty in dealing with employees engaged to drive vehicles for hire because few members of the Committee had an interest in this area of work. Over 40 years later, that concern does not appear to have endured with the creation of the Transport Industry (State) Conciliation Committee with a constitution in terms identical to that of the Chauffeurs' Conciliation Committee, the Hire Car Drivers' Conciliation Committee and the Motor Car Drivers' Conciliation Committee in relation to chauffeurs and drivers of passenger vehicles. I can find nothing in the Constitution of the Transport Industry (State) Conciliation Committee since its inception in 1991 that would serve to exclude chauffeurs and drivers employed by hire car companies such as the first respondent. 96 I have difficulty understanding the argument that by reference to this history, chauffeurs and drivers of hire car companies are not within the jurisdiction of the Transport Industry (State) Conciliation Committee and why on the clear words used, that award does not apply to such chauffeurs and drivers employed by hire car companies. While the history supplied to the Court is somewhat incomplete, it is quite apparent that, after the decision of Webb J in 1947, there were a number of alterations made to transport awards in this State and I can see no reason why the clear terms of the Transport Industry (State) Award and the Transport Industry (State) Conciliation Committee should not be given full force and effect. I also accept the applicants' submissions that this approach is not altered by the use of the word "notwithstanding" in the constitution of the Committee. 97 Having reached conclusions as to the unfairness of the total remuneration provided to the applicants and that the total remuneration was less than that provided by the Transport Industry (State) Award, the applicants are entitled to that part of the relief claimed seeking a declaration that the contract between the applicants and the first respondent was unfair insofar as in its operation it avoided the provisions of the Transport Industry (State) Award. 98 In relation to Ms Mazza and Mr La Grazia, both applicants seek a declaration that the contracts with the first respondent were unfair as a consequence of the respondent's conduct in terminating their contract without notice or compensation in lieu of notice. In each case, the applicants sought the payment of three weeks' in lieu of notice. Both are relatively short term employees and it is to be noted that the award provided for the giving or paying of one week's notice on termination. Considering the context in which this relief arises in each case, I am satisfied that both employees should have been given reasonable notice and that in each case notice should be one week's pay calculated by reference to the award rate. 99 In relation to superannuation, the uncontested evidence is that the respondents did not pay superannuation in accordance with the provisions of the Superannuation Guarantee (Administration) Act because of the view that the applicants were independent contractors. Having concluded that the applicants have made out their case and that they were paid in total remuneration less than they might have earned under the award, I believe it is consistent with that finding that an order should be made in each case for a payment of superannuation calculated in accordance with the provisions of the Guarantee Act. I also note that in the Summons for Relief the applicants proposed that the sum of money to be paid, calculated in accordance with the provisions of the Guarantee Act, should be paid into a nominated complying superannuation fund. I concur with that approach, except in the case of Mr Shalala who has retired. In his case, an order should be made for the direct payment of the calculated amount. 100 In relation to the general orders sought, I would propose that the arrangements be voided ab initio save and except for the payments already received by the applicants for which credit must be given in calculating the sum payable on the application of the award rates. This is also an appropriate case for the payment of interest as proposed by the applicants. 101 I have expressed these proposed orders somewhat broadly to enable the parties to have some discussions prior to bringing into Court Short Minutes of Orders. This course may allow some discussion following from Mr Bartolotta's desire to check the details of the amounts claimed should the respondents fail in their primary arguments as they have. The matter will be relisted in 14 days in order to make final orders unless the parties agree to an alternate date that is convenient to the Court. 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.