Transport Workers' Union of New South Wales v Toll Transport Pty Ltd (No 3) [2012] NSWIRComm 65

Industrial Relations Commission New South Wales Medium Neutral Citation: Transport Workers' Union of New South Wales v Toll Transport Pty Ltd (No 3) [2012] NSWIRComm 65 Hearing dates: 1 June 2012; Written Submissions 28 June 2012 Decision date: 04 July 2012 Jurisdiction: Industrial Court of NSW Before: Haylen J Decision: (1)The contracts between the owner/drivers or former owner/drivers listed below and Toll Transport Pty Limited and Toll Holdings Pty Limited whereby the owner/drivers performed work in the transport industry were and are unfair: Francis Whitten; Leonard Felice (t/as L & N Felice); Dominic Lamacchia (t/as D & E Lamacchia); James Novak (whose business was incorporated in 2002 as Transco Holdings Pty Ltd); R & B Marcinasko Pty Ltd; WL Kennett (t/as WL & LM Kennett); Nick Kouverianos (t/as N & N Kouverianos); Victor D'Angelo; Carlos Ferreira (t/as C & D Ferreira). (2)The contracts between the former owner/drivers listed below and the respondents are hereby declared void ab initio save as to the payment of any monies pursuant to the said contracts: Francis Whitten; Leonard Felice (t/as L & N Felice); James Novak (whose business was incorporated in 2002 as Transco Holdings Pty Ltd); Nick Kouverianos (t/as N & N Kouverianos); Carlos Ferreira (t/as C & D Ferreira). (3)The contracts between the owner/drivers listed below and the respondents are varied to: (a)require the payment of money in the amounts set out in orders 4 and below to the following owner/drivers: Dominic Lamacchia (t/as D & E Lamacchia); R & B Marcinasko Pty Ltd; W L Kennett (t/as WL & LM Kennett); Victor D'Angelo. (b)add a new provision, to operate from the payment of the moneys in accordance with the variation in (a), as follows: (i)the rights of the Lorry Owner Driver under clause 11 with respect to sale of vehicles shall cease; (ii)no Lorry Owner Driver shall have any right to sell a truck with work, or with an introduction to work, or with goodwill, or with a right to introduce a new Lorry Owner Driver to the Company upon the termination of his contract; (iii)the Lorry Owner Driver releases and discharges the Company from all claims, actions, suits, causes of action, liability, demands, rights, proceedings, damages and costs whatsoever (whether at common law, in equity or, to the extent permitted, under any statute) which the Lorry Owner Driver now has or would at any time have had but for this contractual provision in any way connected with his former rights under clause 11 or the purchase or sale of a truck with work or with an introduction to work or with goodwill or with a right to introduce and new Lorry Owner Drivers to the Company upon termination of his contract. (4)Toll Transport Pty Ltd and Toll Holdings Pty Ltd are jointly and severally liable to pay the following persons the following amounts: Francis Whitten: $47,920 Leonard Felice: $73,700 Dominic Lamacchia: $21,600 James Novak: $30,000 R & B Marcinasko Pty Ltd: $48,000 Wayne Kennett: $48,000 Nick Kouverianos: $64,975 Victor D'Angelo: $49,500 Carlos Ferreira: $60,500 (5)Toll Transport Pty Ltd and Toll Holdings Pty Ltd are jointly and severally liable to pay interest on the amounts specified in order 4 from the date of filing of the application at the rate under the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005 calculated up to the date of these orders. (6)The amounts set out in orders 4 and 5 are to be paid 28 days after the date the Court makes these orders. (7)Toll Transport Pty Ltd and Toll Holdings Pty Ltd are jointly and severally liable to pay the applicant's costs on a party/party basis, as agreed or assessed. This order shall include the costs of the proceedings before his Honour, Justice Staff, but does not affect the costs order made by the Full Court on 30 July 2010 or the costs order made by his Honour, Justice Haylen, on 3 June 2011. (8)The parties have leave to relist the matter to deal with any unintended consequence or unforeseen difficulty that may arise from the present form of the orders. Catchwords: UNFAIR CONTRACTS - Industrial Relations Act 1996 - s 106 - sale of truck with work - premium or "goodwill" paid - contracts found to be unfair - submissions as to appropriate orders - need for recognition of loss based on changing value of money - loss crystallised at point when respondents unfairly refused to allow further sales of truck with work at a premium - interest to be paid from date of filing application - costs of initial trial prior to being overturned on appeal - appropriate for such initials costs to be paid by respondents - orders made Legislation Cited: Civil Procedure Act 2005 Supreme Court Act 1970 Uniform Civil Procedure Rules 2005 Cases Cited: Aboud v State of New South Wales (Department of School Education) (No 2) (2000) 99 IR 299 Eagle Boys Dial-a-Pizza v Clifford (2003) 125 IR 35 at 5 Falkner v Bourke (1990) 19 NSWLR 574 Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15 Myer Stores Ltd t/as Grace Bros v Stoward and others (1994) 55 IR 21 Transport Workers Union of New South Wales v Toll Transport (No 2) [2012] NSWIRComm 25 Texts Cited: Australian Bureau of Statistics Category: Consequential orders Parties: Transport Workers' Union of New South Wales (Applicants) Toll Transport Pty Ltd (First Respondent) Toll Holdings Pty Ltd (Second Respondent) Representation: Mr A Hatcher SC with Mr D Nagle of counsel (Applicant) Mr A Moses SC with Mr I Shariff of counsel (First and Second Respondents)