Moulds v Toll Transport Pty Limited, trading as Toll Priority DX Solutions [2011] NSWIRComm 1032

Industrial Relations Commission New South Wales Medium Neutral Citation: Moulds v Toll Transport Pty Limited, trading as Toll Priority DX Solutions [2011] NSWIRComm 1032 Hearing dates: 1 July, 2011 Decision date: 21 July 2011 Jurisdiction: Industrial Relations Commission Before: Connor C Decision: Application for the reinstatement of a contract of carriage declined Catchwords: CONTRACT OF CARRIAGE - transport industry - termination of a contract of carriage - fitness to perform driving duties - conflicting medical advice Legislation Cited: Industrial Relations Act 1996 Occupational Health and Safety Act 2000 Cases Cited: Cherry v Allied Express Transport (1997) 73 IR 305 Deltec International Couriers Pty Limited v Transport Workers Union of Australia (1993) 50 IR 341 Little v Commissioner of Police (No 2) 112 IR 212 Transport Industry (General Carriers) Contract Determination Case (1993) 46 IR 154 WorkCover Authority of New South Wales v Hitchcock (2004) 135 IR 377 Category: Principal judgment Parties: Transport Workers Union of New South Wales (Applicant)

Toll Transport Pty Limited, trading as Toll Priority DX Solutions (Respondent) Representation: Stephen Bull, Transport Workers Union of New South Wales (Applicant)

Daniel O'Sullivan (Respondent) File Number(s): IRC 1379 of 2010

DECISION

BACKGROUND 1Pursuant to the provisions of Part 4, Dispute Resolution, of Chapter 6, Public Vehicles and Carriers [s.314], of the Industrial Relations Act 1996 , the Transport Workers' Union of New South Wales has lodged an application on behalf of its member, Mr Barry Moulds, who was engaged by Toll Transport Pty Limited, trading as Toll Priority DX Solutions, for 19 years until Monday, 11 October, 2010 when his services were terminated. The TWU has sought the reinstatement of the contract of carriage between Mr Moulds and Toll Priority. The matter was allocated to me and I set it down for a preliminary hearing, in the nature of conciliation, on Thursday, 23 December, 2010 and adjourned for further mention on Thursday, 24 February, 2011. 2Conciliation failed to settle the matter. I programmed it for arbitration which was set down on Thursday, 30 June, 2011 but it was necessary for me to vacate the hearing to attend a funeral of a former colleague. The hearing was scheduled for Friday, 1 July, 2011 instead. Mr Bull represented Mr Moulds and the TWU in the hearing. He called Mr Moulds and Mr Robert Rignall, another Toll Priority contract carrier (and yard TWU delegate) to give evidence in the hearing. Mr O'Sullivan represented Toll Priority in the hearing. He called three witnesses to give evidence in the hearing: Ms Margaret Stefanovska, the Toll Priority national risk manager, Mr Brett Buffett, a fleet supervisor (mornings), and Mr Jeff O'Flynn, a terminal manager. 3Mr Moulds is now 74 years of age. He suffered a slight stroke whilst at work on Tuesday, 13 July, 2010 and was taken to hospital. After his release from hospital he sought to resume duties with Toll Priority. He had a medical certificate from his attending physician that he is fit for work but Toll declined to allocate work to him and subsequently terminated his services, essentially on medical grounds, ie notwithstanding the advice given by his attending medical practitioner, its concern over his fitness to perform work for it. Toll had arranged for Mr Moulds to attend for an evaluation of Mr Moulds's medical condition by another medical practitioner and the advice of that medical practitioner is not as positive.