Industrial Relations Commission New South Wales Medium Neutral Citation: Taxi Industry (Contract Drivers) Contract Determination [2011] NSWIRComm 1036 Decision date: 15 July 2011 Jurisdiction: Industrial Relations Commission Before: Connor C Decision: Contract determination varied to reflect share of fare increase Catchwords: CONTRACT DETERMINATION - taxi industry - fare increase - variation of contract determination to reflect an approved fare increase - adjustment of component for taxi owners according to formula adopted for past fare increases Legislation Cited: Industrial Relations Act 1996 Cases Cited: Taxi Industry (Contract Drivers) Contract Determination Case 1996 - unreported Taxi Industry (Contract Drivers) Contract Determination Case 2001 - unreported Taxi Industry (Contract Drivers) Contract Determination Case 2002 - unreported Taxi Industry (Contract Drivers) Contract Determination Case 2003 - unreported Taxi Industry (Contract Drivers) Contract Determination Case 2006 - unreported Category: Principal judgment Parties: New South Wales Taxi Industry Association (Applicant) Transport Workers' Union of New South Wales (Respondent) Representation: Michelle Khoury, Pigott Stinson Lawyers (Applicant) Oshie Fagir, Transport Workers' Union of New South Wales (Respondent) File Number(s): IRC 122 of 2011 DECISION INTRODUCTION 1On Thursday, 7 July, 2011, acting pursuant to the provisions of Part 2, Contract Determinations, of Chapter 6, Public Vehicles and Carriers [Ss.311 to 321], of the Industrial Relations Act 1996 , the New South Wales Taxi Industry Association has lodged an application to vary the Taxi Industry (Contract Drivers) Contract Determination. The variation sought to flow on a share of a fare increase [2.9%] recommended in a recent report to the State Minister for Transport by the Independent Pricing and Regulatory Tribunal of New South Wales [IPART]. Taxi fares were reviewed by IPART and its report - the "2011 Review of Taxi Fares in New South Wales: Transport Final Report and Recommendations June 2011" - referred to the State Minister for Transport. The fare increase [3.5%] recommended by IPART has been accepted by the State Government and is to take effect on and from Sunday, 17 July, 2011. 2There are, in fact, two methods of remuneration recognised under the Taxi Industry Contract Determination: a sharing of the chargeable fares - 45% for the bailee in the first year and 50% for subsequent years [Method One] and a fixed payment scheme whereby the taxi driver bailee retains the excess after an agreed sum has been paid to the taxi owner bailor [Method Two]. Taxi driver bailees have the option of working under either Method One or Method Two. Taxi driver bailees in the Sydney metropolitan area invariably have worked under Method Two, however, and Method One has, to that extent, fallen into disuse. 3Under Method Two, fare increases flowing from IPART recommendations and subsequent approval by the State Government are initially applied to taxi driver bailees and an application is made to vary the Taxi Industry Contract Determination for the taxi owner bailors to share in that fare increase. The current IPART report shows that operator costs have increased by 2.9% since 2010 and that is the adjustment which the TIA is seeking on this occasion for taxi owner bailors. The Transport Workers' Union of New South Wales has represented the taxi driver bailees in past proceedings. HISTORY 4It is appropriate, in my opinion, to set out the history to these current proceedings. From 1984 maximum pay-ins in Method Two and other entitlements were adjusted in accordance with an established formula which was at that time set out in the Taxi Industry Contract Determination. But there had in the past been some opposition expressed by the TWU to that formula and I had expressed some reservations about it myself. For instance, I indicated in my unreported decision of Monday, 23 December, 1996 in the 1996 Taxi Industry (Contract Drivers) Contract Determination Case [Matter No. IRC 1959 of 1996 at p.7] that: "...it is certainly time to grasp the nettle for a major overhaul of the contract determination for taxi drivers which no longer appears to me to reflect the current state of the industry..." 5But I further indicated (at p.8) that until that was done, I would be obliged to rely on the existing formula, viz: "...In the meantime, and until such times as something better is worked out between the parties or arbitrated, the existing formula is all I really have to go by..." 6In 2001 taxi fares were increased by reference to an IPART report at that time with some costs relating to the operation of taxi cabs being borne by operators and some costs being borne by taxi drivers. In his unreported decision of Wednesday, 5 December, 2001 in the 2001 Taxi Industry (Contract Drivers) Contract Determination Case [Matters No.IRC 3119 and 3282 of 2001] Marks J departed from the established formula in considering the appropriate pay-ins, and again in his unreported ex tempore decision of Thursday, 17 October, 2002 in the 2002 Taxi Industry (Contract Drivers) Contract Determination Case [Matter No.IRC 4563 of 2002], his Honour did not follow that formula in considering the appropriate pay-in for a fare increase at that time. On both occasions his Honour's approach was over the opposition of the TIA. 7Since that time, however, the formula flowing from the decisions of Marks J has been consistently adopted. In my unreported decision of Friday, 7 November, 2003 in the 2003 Taxi Industry (Contract Drivers) Contract Determination Case [Matter No.IRC 4725 of 2003] I adopted that approach with a TIA application at that time, pointing out (at p.4) that: "...it is really the course charted by Marks J which is of greater influence to me and I do not believe that it is appropriate to now depart from the course of action which his Honour has followed on the last two occasions that the question of pay-ins to taxi owners was considered and which IPART has borne in mind in its current deliberations..." 8But I went on to say (at p.4): "...In saying that, I would not wish to resile from the view I have consistently expressed that it would be appropriate for a more comprehensive review of the contract determination for the taxi industry..." 9That has not occurred, however and Sams DP on Monday, 14 August, 2006 in the 2006 Taxi Industry (Contract Drivers) Contract Determination Case [Matter No.IRC 2904 of 2006], also applied the formula flowing from the decision of Marks J. That course has consistently been adopted by members of the Commission for adjustments to the owners share of every fare increase approved by the IPART since that time - in 2007 (Marks J), 2008 (Marks J), 2009 (me) and 2010 (Macdonald C). THE CURRENT PROCEEDINGS 10Consistent with all recent adjustment to pay-ins to taxi owners, the TIA has again based its current application on the approach of Marks J and the latest report of IPART. The TIA application was allocated to me and I set it down for arbitration in a hearing on Friday, 15 July, 2011. The TIA had in a letter dated Thursday, 7 July, 2011 which accompanied its application to vary the Taxi Industry Contract Determination sought that the matter proceed urgently and, recognising that the TIA application was simply again following the customary course for an adjustment to the pay-ins for taxi owner drivers and that the fare increase was to have effect on and from Sunday, 17 July, 2011, I set the matter down for hearing. 11In those proceedings Ms Khoury represented the TIA and Mr Fagir represented the TWU. Ms Khoury provided an amended application as the basis of her claim for variation of the Taxi Industry Contract Determination. Mr Fagir indicated that he did not consent to the amended application but he made no further submissions concerning the matter. 12In the circumstances, and consistent with past practice, I propose to vary the Taxi Industry Contract Determination in accordance with the TIA's amended application. The variation shall have effect, consistent with the date of the fare increase, from the first shift to commence on or after Sunday, 17 July, 2011. P J CONNOR Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 July 2011