Transport Workers' Union of New South Wales v Toll Transport (No 2) [2012] NSWIRComm 25

Industrial Relations Commission New South Wales Medium Neutral Citation: Transport Workers' Union of New South Wales v Toll Transport (No 2) [2012] NSWIRComm 25 Hearing dates: 28 November 2011; 30 November 2011; 1 December 2011 (Written submissions 9 December 2011; 22 December 2011) Decision date: 30 March 2012 Jurisdiction: Industrial Court of NSW Before: Haylen J Decision: (a) contracts held to be unfair, harsh and unconscionable; (b) owner/drivers to be restored to the position held prior to paying premiums/ goodwill for the work with a truck; (c) applicant to draft orders reflecting the decision of the Court Catchwords: INDUSTRIAL RELATIONS ACT 1996 - s 106 application - unfair contracts - owner/drivers operate under settled system of sale of truck with work at a premium described usually as "goodwill" - sale of transport business - representations made to owner/drivers that new engagement conditions with successor company would be no less favourable than those applying under previous ownerships - owner/drivers take up engagement with new owners - new owner opposed to sale of truck with work at a premium - unwritten policy against such sales not disclosed to owner/drivers when representations made regarding continuation of previous conditions - successor company aware of written agreement with owner/drivers permitting sale of truck with work at premium - due diligence process exposes risk of sale practice - warranties and indemnity secured from vendor - successor refuses to approve any sales after purchase - at first instance contracts found to be unfair - Full Bench upholds appeal and remits case on question of terms of contract any unfairness and consequential orders - terms of Full Bench remitter considered - contracts found to be unfair, harsh and unconscionable - owner/drivers to be restored to their position prior to paying premiums - parties to discuss appropriate orders to reflect findings made by the Court. Legislation Cited: Industrial Arbitration Act 1940 Industrial Relations Act 1991 Industrial Relations Act 1996 Cases Cited: A & M Thompson Pty Ltd v Total Australia Ltd [1980] 2 NSWLR 1 Bradib Pty Ltd v Jilly Bean Pty Ltd and anor (No 1) (1987) 21 IR 90 Brown v Rezitis (1971) 127 CLR 157 Codelfa Construction Pty Ltd v State Rail Authority of NSW (1981-1982) 149 CLR 337 Darren John Palmer v TNT Australia Pty Ltd (t/as TNT Express) (1995) NSWIRComm 243 Davies v General Transport Development Pty Ltd [1968] AR (NSW) 371 Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 In Re Ostoja and anor v Reeve and anor (1973) AR 414 Incitec v Industrial Court of NSW (1992) 29 NSWLR 83 J.J. Savage & Sons Pty Ltd v Blakney (1970) 119 CLR 435 Monier Roofing Pty Ltd v Quintrell and anor (1997) 78 IR 38 Myer Stores Ltd t/as Grace Bros v Stowart and ors (1994) 55 IR 21 Newton v Goodman Fielder Mills (1997) 81 IR 227 R v Cameron Francis Macraild (unreported, 18 December 1997, CCA (NSW) 60324 of 1997; BC9707215) Re Guion v Hutchinson [1973] AR 454 Sydney Water Corp Ltd v The Industrial Relations Commission of NSW (2004) 61 NSWLR 661 Thomas Nationwide Transport Ltd (t/as "Altrans Bulk") v Thomas and anor (1990) 34 IR 378 TNT Management Pty Ltd v White (1984) AR (NSW) 235; 7 IR 331 Toll Transport Pty Ltd v Transport Workers' Union of New South Wales [2010] NSWIRComm 58 Transport Workers' Union of New South Wales (o/b Cruickshank Transport Pty Ltd ) v Stegbar Pty Ltd [2007] NSWIRComm 244 Transport Workers' Union of New South Wales (o/b Steve Cincotta t/as "S & M Cincotta Pty Ltd and ors) v Visy Board Pty Ltd [2005] NSWIRComm 178 Transport Workers' Union of New South Wales v Toll Transport Pty Ltd & anor [2009] NSWIRComm 42 Westfield Holdings v Adams (2002) 114 IR 241 Texts Cited: J W Carter and D J Harland, Contract Law in Australia, 4th ed (2000) Butterworths