RJ Enterprises (Aust) Pty Ltd v Booth Transport Pty Ltd [2012] NSWIRComm 4

Industrial Relations Commission New South Wales Medium Neutral Citation: RJ Enterprises (Aust) Pty Ltd v Booth Transport Pty Ltd [2012] NSWIRComm 4 Hearing dates: 24, 25 October 2011 and 6 December 2011 Decision date: 23 February 2012 Jurisdiction: Industrial Court of NSW Before: Boland J, President, Marks J, Kavanagh J Decision: A. The questions referred for decision are answered as follows: 1) Time spent by Contract Carriers in travelling empty is to be properly regarded as falling within the definition of contract time in the Transport Industry - General Carriers Contract Determination if it is in relation to a contract of carriage between a Contract Carrier and a Principal Contractor. 2) A Contract Carrier is entitled to be paid in accordance with the provisions of cl 16 of the Contract Determination with respect to contract distance and contract time for all time and distance that the Contract Carrier travels without goods being loaded onto the vehicle, including for the time and distance travelled: a) delivering and picking up goods; b) from the Principal Contractor's depot to pick up goods; and c) back to the Principal Contractor's depot after delivery of goods, provided such travel occurs in relation to a contract of carriage between the Contract Carrier and the Principal Contractor. 3) The Contract Carrier is entitled to be paid the hourly standing rate in Schedule 1 for all time spent in: a) loading or unloading goods; b) performing the obligations set out in cl 6(5) of the Contract Determination; c) attending to all necessary paperwork in accordance with obligations set out in clauses 6(17), 6(19) and 6(20) of the Contract Determination; and d) being present while waiting for goods to be loaded or unloaded onto the Contract Carrier's vehicle by other persons, as referred to in cl 6(5), provided such time is spent in relation to a contract of carriage between the Contract Carrier and the Principal Contractor. 4) In relation to geographical limitations: a) Clause 2(1)(a) of the Contract Determination does not apply to the transportation of goods under a contract of carriage from one place to another place, only one of which is within the County of Cumberland; b) Clause 2(1)(b) of the Contract Determination applies to the transportation of goods any part of which extends beyond the County of Cumberland provided that the transportation is from one place to another place, both of which are within the area of a circle of radius 50 kilometres the centre of which is the starting place applicable to the Contract Carrier who is performing the contract of carriage. 5) Principal Contractors are liable to make severance payments to Contract Carriers under cl 6 of the Transport Industry - Redundancy (State) Contract Determination in respect of any period of service of the Contract Carriers which occurs prior to the date on which that Redundancy Determination came into force and such liability is not affected by s 318 of the Industrial Relations Act 1996. B. Pursuant to the provisions of the Transport Industry - General Carriers Contract Determination, Contract Carriers are required to take a half hour lunchbreak on each day that work is performed for a Principal Contractor, such lunchbreak not counting as contract time for the purpose of cl 16 of that Determination. C. Costs are reserved. D. Parties are directed to confer with respect to the future conduct of the proceedings. E. Liberty to apply. Catchwords: INTERPRETATION AND APPLICATION OF PROVISIONS OF CONTRACT DETERMINATIONS - Transport Industry - General Carriers Contract Determination - contract of carriage - contract carriers claim underpayment of remuneration by principal contractors - transportation of goods to be the dominant purpose of contract - overarching contract of carriage - contract carriers entitled to be remunerated for all time and distance spent travelling empty - contract carriers entitled to be remunerated for their presence during loading, securing and unloading of goods - geographical boundaries - contract carriers not entitled to be remunerated for required meal breaks - Redundancy (State) Contract Determination - new legal right measured by reference to past events - no retrospective effect - Costs reserved Legislation Cited: Industrial Arbitration Act 1940 Industrial Relations Act 1996 Cases Cited: Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 Re VCD and Australian Prudential Regulation Authority [2008] AATA 580 Rodway v The Queen [1990] HCA 19; (1990) 169 CLR 515 Category: Principal judgment Parties: RJ Enterprises Pty Ltd (Applicant in IRC 2067 of 2009) Wayne Stirling Pty Ltd (Applicant in IRC 900 of 2010) Georgiev Transport Pty Ltd (Applicant in IRC 1143 of 2010) Booth Transport Pty Ltd (Respondent in IRC 2067 of 2009) General Carrying Pty Ltd (Respondent in IRC 900 of 2010) Gregory's Transport Pty Ltd (Respondent in IRC 1143 of 2010) Transport Workers' Union of New South Wales (Intervenor) Australian Roads Transport Industrial Organisation NSW Branch (Intervenor) Representation: Mr A Metcalfe of counsel (Applicants in all matters) Mr Y Shariff of counsel (Respondents in all matters) Mr A Hatcher SC (Intervenor, TWU) Mr M Byrne (Intervenor, ARTIO) Connect Legal (Applicants in all matters) Clayton Utz (Respondents in all matters) File Number(s): IRC 2067 of 2009 IRC 900 of 2010 IRC 1143 of 2010