Industrial Relations Commission New South Wales Medium Neutral Citation: Transport Workers' Union of New South Wales and DP World Sydney Limited [2013] NSWIRComm 58 Hearing dates: 14/02/2013 Decision date: 10 July 2013 Jurisdiction: Industrial Relations Commission Before: Backman J Decision: The first, second, third, fourth, seventh and eighth respondents to the Notification are granted leave of the Commission to be removed as respondents to the Notification. Catchwords: Notification of a dispute under s 332 of the Industrial Relations Act 1996 (the Act) - respondents to the Notification seek leave of the Commission to be removed as respondents to the proceedings - whether there is a relevant industrial dispute - if there is an industrial dispute whether the respondents are parties to the dispute - statutory regime under Chapter 6 of the Act considered - Held: there is no relevant industrial dispute under s 332 - Held: even if there is a dispute none of the respondents are parties to the dispute - order. Legislation Cited: Industrial Relations Act 1996 Cases Cited: St George Bank Ltd v Rabo Australia Ltd [2004] FCA 1360; (2004) 211 ALR 147 Transport Workers Union of Australia New South Wales Branch v Conaust Ltd (1992) 46 IR 18 Category: Principal judgment Parties: Transport Workers' Union of New South Wales (Notifier) DP World Sydney Limited (First respondent) Gregory's Transport (Second respondent) Owens Transport (Third respondent) Patrick Port Logistics Pty Ltd (Fourth respondent) Maritime Container Services Pty Ltd (Fifth respondent) Australian Container Freight Services Pty Ltd t/as Smith Bros Terminal Pty Ltd (Sixth respondent) Sydney Ports Corporation (Seventh respondent) Australian Road Transport Industrial Organisation (Eighth respondent) Representation: Mr A Hatcher, SC (Notifier/Applicant) Transport Workers' Union of New South Wales (Notifier/Applicant) Herbert Smith Freehills (First and fourth respondents) K&L Gates (Second, Third and Eighth respondents) Sydney Ports Corporation (Seventh respondent) File Number(s): IRC 1136 of 2012 Decision 1On 9 November 2012, the Transport Workers' Union of New South Wales (the TWU) notified a dispute under s 332 of the Industrial Relations Act 1996 (the Act). Several corporate entities were nominated in the Notification as respondents. They include DP World Sydney Limited (DPW), described in the Notification as the operator of a marine terminal operation at Port Botany. Other nominated respondents include Gregory's Transport (GT), Owens Transport Pty Ltd (Owens) and Patrick Port Logistics Pty Ltd (PPL), all of which have been described as principal contractors engaging contract carriers who continuously visit the Port Botany site in the course of their engagements. Other named respondents include Australian Road Transport Industrial Organisation (ARTIO), an association of employing contractors registered under Chapter 6 of the Act, and Sydney Ports Corporation (SPC), the landlord of the Port Botany site which has granted a long-term lease of the site to DPW. 2According to the TWU, the dispute concerns the planned introduction by DPW of an Alcohol and Other Drugs Policy (the Policy), intended by DPW to cover all persons who enter the Port Botany site, including those contract carriers whose interests are represented by the TWU. The grounds set out in Schedule A of the Notification rely essentially on a lack of "meaningful consultation" between DPW and the TWU concerning the introduction of the Policy and its subject matter. The Notification seeks consultation with DPW regarding the formulation of a tripartite agreement on drug and alcohol testing involving the input of stevedores, transport companies, unions and SPC. 3The respondents referred to above have objected to their inclusion as respondents to the Notification and have sought leave of the Commission to be removed as respondents in the proceedings. In addition, the respondents contend that the Commission does not have jurisdiction to deal with the matter. Several grounds were advanced by the respondents in support of the applications. In essence, the grounds may be summarised as falling into two categories: i) there is no relevant industrial dispute; ii) even if the Commission were confident that there is an "industrial dispute" (as defined in the Act), s 332 of the Act does not apply to the respondents because they are not parties to the dispute. 4Before addressing the various contentions of the parties on these grounds, it is necessary to refer to some of the background material provided in the proceedings. 5The Policy is annexed to the Notification. Under clause 1.2, headed "Scope", the Policy is expressed to apply to "all employees, contractors, truck drivers, and visitors entering and/or performing work on all DP World worksites". "Truck driver" is defined in the Policy as, "An operator of a truck (not an employee of DP World) whether for him or herself or on behalf of a transport company". "Contractor" is defined as, "A contractor, sub-contractor or Employee of a contractor or sub-contractor required to perform work on any worksite". At this point, it may be concluded that these clauses, extracted from the Policy, apply to the contract carriers represented by the TWU in these proceedings. It was not contended otherwise by any of the parties to the Notification. 6The Policy sets out various procedures for drug and alcohol testing. It also sets out a regime for drug and alcohol screening and testing protocols. Contractors and truck drivers are required under clause 5.2 of the Policy to undergo random alcohol and other drug testing. Refusal by a contractor or truck driver to submit or fully co-operate with the testing incurs a number of sanctions which include being required to cease work and relocate to a "safe location". In addition, the relevant employer will be contacted and informed of the incident. Clause 6.5, headed "Disciplinary Action", applies where the contractor or truck driver is in breach of the Policy or of a direction issued under the Policy. Where this occurs, the individual concerned, "may be directed to leave the site immediately". In addition, under the terms of the Policy, DPW may take further steps in relation to the individual which may include imposing limitations on entry (to the site) and/or excluding the individual from entering the site for a period of time. 7The TWU relied upon a Carrier Access Agreement dated between July 2012 and June 2013 generated by DPW and expressed to apply to "carriers" seeking access to the Port Botany Terminal. According to the agreement, carriers must gain access to the Terminal by means of pre-booked time slots booked through the DP World Vehicle Booking System, known as VBS. Under clause 2 of the agreement, headed "Registration Requirements", the VBS is said to be available for booking purposes only to "bona fide carriers". Bona fide carriers are defined as transport companies who directly manage and operate trucks carrying containers to and from the Terminal. It would appear from these various descriptions that GT, Owens, and PPL at least could fall within the ambit of clause 2 as "carriers". Clause 6 of the agreement sets out general safety obligations which must be met by the carriers. Clause 6(c) requires each carrier to ensure that its drivers, "comply with DP World's Drug & Alcohol Policy". 8There was no contest between the parties that the contract carriers do not have any contractual relationship with DPW. There was also no contest that the contract carriers are not parties to any contractual agreement with DPW. The contract carriers carry out work for road transport companies at the Port Botany site. It may be assumed for present purposes that GT, Owens and PPL are road transport companies who, as principal contractors, have entered into a contractual relationship with contract carriers pursuant to which the latter group is engaged to transport goods from the Port Botany site. The Legislation 9Section 332 of the Act falls within Part 4 of Chapter 6 of the Act. It provides: Compulsory conference with respect to disputes (1) If subsection (2) or (3) applies or the Commission has reasonable cause to believe that it applies, the Commission may summon a person to a compulsory conference: (a) to confer, or (b) to give evidence, or (c) to produce documents or exhibits, in an endeavour to bring the interested parties to a settlement which will determine the matter in relation to which the subsection applies. (2) This subsection applies if an association registered under this Chapter or a bailor or a principal contractor becomes aware of an industrial dispute that might lead, or has led: (a) to owners of public vehicles being in breach of contracts of bailment of those vehicles or refusing to enter into contracts of bailment of those vehicles, or (b) to principal contractors under contracts of carriage being in breach of those contracts or persons refusing to enter into contracts of carriage as principal contractors, or (c) to bailees of public vehicles or carriers under contracts of carriage being in breach of those contracts, or (d) to persons refusing to enter into contracts as bailees of public vehicles or as carriers under contracts of carriage. (3) This subsection applies if an industrial dispute arising from the reorganisation of the business of a principal contractor affects, or is likely to affect, the number of carriers used by the principal contractor or their remuneration. (4) At a compulsory conference, the Commission is to investigate the merits of the matter concerned, irrespective of whether or not industrial action is taking place. (5) If the Commission considers that: (a) the public interest is, or could be, affected by a question, dispute or difficulty referred to in subsection (2) or (3), and (b) all reasonable steps have been taken to resolve the industrial dispute by conciliation, it may make a contract determination expressed to be an interim determination made under this subsection. (6) An interim determination made under subsection (5): (a) is, as far as practicable, to restore or maintain the conditions existing between the parties immediately before the occurrence of the events giving rise to the industrial dispute, and (b) is to remain in force for such period, not exceeding one month after its making, as is specified in it. 10Chapter 6 of the Act is headed "Public Vehicles and Carriers". It was introduced into predecessor legislation to the Act in order to regulate those persons, not employees, who perform work for persons pursuant to a relationship which may be characterised as similar, or akin, to an employee-employer relationship. 11Support for this somewhat general characterisation of the scope of Chapter 6 may be found in the Second Reading Speech to the Industrial Relations Bill 1995 (Legislative Council, Hansard, 23 November 1995, p3855). In an extract from that speech, the then Attorney-General and Minister for Industrial Relations the Hon. JW Shaw, said, in relation to Chapter 6 of the bill (which became the relevant provision of the Act): Part 1 - Application and DefinitionsChapter 6 of the bill carries forward, with some variations and streamlining, the provisions of the 1991 Act that apply a modified industrial relations system for drivers of public vehicles and carriers of goods by vehicle who are engaged under contracts of bailment and contracts of carriage, rather than employment contracts. Part 1 provides definitions of a "contract of bailment" in the case of public vehicles and of a "contract of carriage" in the case of carriers of goods. The equivalent provisions in the 1991 Act apply to courier work undertaken in motor vehicles. The bill extends coverage of the chapter to bicycles to address a lacuna in the existing regulatory framework concerning courier work undertaken with that mode of transport. Although a number of the provisions in the revised chapter 6 of the bill incorporate words or phrases used in other parts of the bill in relation to employees, it is, nonetheless, the legislative intention to retain the chapter as a discrete system of regulation. The nature of contractual relations governed by this chapter, although analogous in some respects, is not the same - and is not intended to be treated in the same way - as employment relationships.Part 2 - Contract DeterminationsPart 2 confers functions on the commission relating to determination of conditions of contracts to which the chapter applies. The commission's functions under the part include the holding of inquiries into various matters arising under contracts of bailment of public vehicles and of carriage of goods, and the holding of conferences prior to the making of contract determinations. The part carries forward and clarifies the existing provisions for ordering reinstatement of contracts of bailment and carriage that have terminated. The jurisdiction of the commission to make a contract determination with respect to the reinstatement of a contract of carriage that has terminated was confirmed by the Industrial Relations Commission in fairly recent cases. Similarly, the jurisdiction to make certain monetary orders in the nature of back pay, as a collateral power "with respect to" reinstatement, was confirmed by the industrial court. The legislative intention is to adopt and confirm the approach taken in these cases. Moreover, as a logical corollary to the recent developments in this area of the law, the Government considers that it is appropriate to clothe the commission with greater discretionary jurisdiction akin to that exercisable in relation to dismissed employees.......Part 3 - Contract AgreementsPart 3 permits associations of employing contractors, bailors of public vehicles or principal contractors to enter an agreement with associations of contract drivers or associations of contract carriers relating to contract conditions and provides for such agreements to be approved by the commission. Under section 675 of the 1991 Act, agreements may be registered to govern the pay and conditions of persons whose engagement would otherwise be governed by contract determinations. These agreements are not examined by the commission, or any other disinterested person for that matter. In a change under this bill which is significant, any future agreements of this kind - including enterprise arrangements - will be approved by the commission. This is consistent with the approach taken in relation to enterprise agreements for employees.It is important to provide a mechanism to ensure that the agreements are non-discriminatory and do not provide a net detriment to the drivers or carriers concerned; and that the parties understand the effect of the agreement, and did not enter it under duress. Presently, some contract determinations provide internal mechanisms for making enterprise arrangements which may be ratified by the commission. Under the bill a provision of a contract determination which authorises the parties to enter enterprise arrangements or other similar agreements on any matter covered by the determination or a contract to which the determination relates has no effect. This provision has been inserted in the bill to ensure that the regulation of engagements under the chapter is either by contract determination or by Page 3856contract agreement: there is no good reason to retain a third avenue for making applications for enterprise arrangements before the commission which are subject to approval criteria which differ from the general statutory scheme.Part 4 - Dispute ResolutionPart 4 carries forward, unchanged from the 1991 Act, provisions for compulsory conferences about disputes relating to contracts and related matters. 12DPW directed the Commission's attention to several provisions contained within Chapter 6 which were said to be supportive of two key propositions, namely, that the Commission lacks jurisdiction under s 332 of the Act to the extent that it purports to "deal with" DPW as a respondent to the proceedings, and, there is an absence of jurisdiction to make orders or determinations binding DPW in resolution or settlement of the proceedings. 13DPW's primary contention in relation to both propositions was that DPW is not an entity which is regulated under the provisions contained within Chapter 6 of the Act (which includes s 332). The contention was developed by reference to a number of specific provisions under Chapter 6 commencing with s 306 which provides that contracts to which Chapter 6 applies are contracts of bailment and contracts of carriage. Contracts of carriage are defined in s 309 which provides (relevantly for present purposes): (1) For the purposes of this Chapter, a contract of carriage is a contract (whether written or oral or partly written and partly oral) for the transportation of goods by means of a motor vehicle or bicycle in the course of a business of transporting goods of that kind by motor vehicle or bicycle, but only: (a) where the carrier is not a partnership or body corporate- ... (b) where the carrier is a partnership- ..., or (c) where the carrier is a body corporate - ... 14Section 311(1) (which falls under Part 2 of Chapter 6, headed "Contract Determinations") provides: An application for the exercise of a function of the Commission under this Part may be made by: (a) a bailor under a contract of bailment, if the average number of different bailees with whom the bailor entered into contracts of bailment on each working day during the period of one month that last preceded the making of the application was not less than 10, or (b) a principal contractor under a contract of carriage, if the average number of different carriers with whom the principal contractor entered into contracts of carriage on each working day during the period of one month that last preceded the making of the application was not less than 10, or (c) an association of employing contractors, or any other association, which represents bailors or principal contractors who are, or some of whom are, parties to contracts of the class concerned, or (d) an association of contract drivers or an association of contract carriers that represents bailees or carriers who are, or some of whom are, parties to contracts of the class concerned. 15Section 313 which refers to the jurisdiction of the Commission with respect to the remuneration of contract carriers under contracts of carriage provides: (1) The Commission may inquire into any matter arising under contracts of carriage and may make a contract determination with respect to remuneration of the carrier, and any condition, under such a contract. (2) In exercising its jurisdiction under this section, the Commission may: (a) include in the remuneration of persons affected by its determination such allowance instead of annual or other holidays, sick leave or long service leave as it thinks fit, or (b) otherwise make provision for all or any of those matters. (3) The Commission may, after inquiry, make a contract determination with respect to the records to be kept by principal contractors in respect of contracts of carriage. 16Section 314 establishes the jurisdiction of the Commission with respect to the reinstatement of contracts. It provides: (1) The Commission may, after inquiry, make a contract determination with respect to the reinstatement of a contract of bailment or contract of carriage that has terminated. (2) Reinstatement of a contract includes re-engagement under a similar contract. (3) A contract determination under this section may be made on such terms and conditions as the Commission thinks fit, including provision for any period after the termination of the contract to be treated as a period of engagement under relevant contracts. (4) If the Commission considers that it would be impracticable to make a determination for reinstatement, the Commission may order the bailor to pay to the driver, or the principal contractor to pay to the carrier, an amount of compensation not exceeding the amount of remuneration of the driver or carrier under relevant contracts during the period of 6 months immediately before the termination of the contract. (5) When assessing any compensation payable, the Commission is to take into account whether the driver or carrier made a reasonable attempt to find alternative engagements and the remuneration received in alternative engagements, or that would have been payable if the driver or carrier had succeeded in obtaining alternative engagements. (6) A contract determination under this section takes effect when it is made, and is not required to have a specified term or to be published on the NSW industrial relations website. 17Section 316 was also relied upon by DPW in support of its primary contention. The section provides the mechanism for the making of contract determinations and is set out in full below: (1) After hearing an application for it to exercise its jurisdiction under this Part, the Commission may: (a) dismiss the application, or (b) make a contract determination with respect to the application. (2) When the Commission makes a contract determination: (a) it may defer the operation of the determination wholly or in part for such period or periods as it thinks fit, and (b) it must specify the class or classes of contracts in respect of which the determination is to operate (including classes defined by reference to a named bailor or principal contractor). 18Section 317 deals with those parties in respect of whom, or which, a contract of determination has binding force. Section 317(1) provides: Subject to such exemptions and conditions as the Commission may direct, a contract determination is binding on all bailors and bailees or all principal contractors and carriers who are parties to contracts of the class to which the determination relates as the Commission may direct. 19Part 3 of Chapter 6 which deals with contract agreements was also relied upon by DPW. Section 322(2) sets out the parties who may enter into contracts "of a specified class". It provides: An association of contract carriers may enter into an agreement with a principal contractor, or with an association of employing contractors, with respect to the conditions of contracts of a specified class made with carriers by that principal contractor or with principal contractors represented by the association. 20Section 326 sets out the parties who are bound by the contract agreement. Section 326(1) provides: A contract agreement is binding on: (a) the parties to the agreement, and (b) in the case of a party that is an association of employing contractors-all members of the association or a specified member or class of members, as provided by the agreement, and (c) in the case of a party that is an association of contract drivers or contract carriers-all bailees or carriers who are members of the association, or who are eligible to be members of the association and who enter into contracts of the class to which the contract agreement relates. 21According to DPW, Chapter 6 constitutes a bespoke regime of provisions that applies to contracts of carriage and contracts of bailment. It was submitted that DPW is not a party to any relevant contract of carriage and could not be. It satisfies none of the requirements of s 311(1)(a)-(d), for example, because it is not one of the parties nominated in the sub-section who may apply to the Commission to exercise "a function" under Part 2 of Chapter 6. Under s 317, DPW is not a party in relation to whom a contract determination is binding. Section 326, which deals with contract agreements, also would, in terms, exclude DPW as a party who may be bound by such an agreement. In summary, DPW submitted that it could not be a party to a contract determination or a contract agreement or even be heard in relation to any application that may be made for either of those industrial instruments. Nor could DPW seek registration as an association of employing contractors, nor could it have compensation ordered against it by the Contract of Carriage Tribunal in relation to a contract of carriage. 22Section 332, it was submitted, must be read in context with the other provisions of Chapter 6. It is a dispute resolution mechanism designed to deal with disputes between those persons who are regulated by Chapter 6. In order for DPW to fall within s 332, therefore, there must exist a contractual relationship between it and the contract carriers (represented by the TWU). Because there is no such relationship, the section does not apply to DPW. 23DPW also put an alternative agreement based on s 317. It was submitted in this regard that because DPW (not being a bailor or bailee, or principal contractor or carrier) could not be bound by a contract determination, even if the Commission were to find there was jurisdiction, in the absence of a power to make a contract determination binding on DPW, the proceedings under s 332 would be futile. 24The submissions of the principal contractors focussed on the primary contention advanced on their behalf that there was no industrial dispute as between them and the contract carriers, nor was there an industrial dispute as between the contract carriers and DPW. 25PPL, in support of the primary contention, referred to the statement of Christian O'Callaghan which was tendered on behalf of the TWU on the application. In the statement, Mr O'Callaghan, a senior legal officer in the employ of the TWU, sought to respond to the submissions of the three principal contractors (GT, Owens and PPL). According to Mr O'Callaghan, the TWU has members working in all the respondent transport companies, either as employees or engaged as owner drivers. The statement refers to discussions, but not the content of those discussions, between the TWU and "various transport companies" about DPW's Policy. Mr O'Callaghan said that Robert Pirc, a TWU official, was holding urgent talks with "the various transport companies" with a view to averting industrial action (in relation to the proposed implementation by DPW of its Drug & Alcohol Policy). According to Mr O'Callaghan, Robert Thom, "the Patrick's transport manager" told Mr Pirc, "I don't know who I'm going to ring, but I've got to ring somebody". Mr O'Callaghan said that Mr Pirc told him, "Our stance has sent shockwaves across the Port". Mr O'Callaghan said he formed the impression that the implementation of DPW's Policy was, "a significant event at Port Botany". 26PPL submitted in relation to Mr O'Callaghan's statement that it provides no indication or suggestion that there was, at the time, a dispute, grievance or claim being made against PPL. Moreover, the statement does not address the jurisdictional requirement (under s 332(2)) that an industrial dispute "might lead or has led to" contract carriers being in breach of any contracts of carriage. In those circumstances, the Commission is asked to speculate about how the contracts of carriage have been or might be breached. According to PPL, none of its contract carriers have raised any concerns about compliance with DPW's Policy, nor have they indicated that they will not comply with the Policy. Further, the subject of the dispute concerns a Policy implemented by the occupier of a site (DPW) at which contract carriers engaged by PPL deliver and pick up goods. This cannot constitute a dispute under s 332 concerning an industrial matter as between PPL and its contract carriers, sufficient to engage the Commission's jurisdiction. The dispute, as PPL understands it, is about a Policy regarding the basis upon which persons might access DPW's Port Botany site. The Policy has not been implemented by PPL, nor is it bound by it. The Policy is a matter beyond the control of PPL and in essence constitutes a set of rules and regulations imposed by a third party. 27It was also submitted by PPL in the alternative that s 332(2) could not be engaged where the only reason asserted for the possible breach of the contracts of carriage was that the contract carriers have merely foreshadowed that they might engage in conduct in breach of their contracts, "because of the dispute". The Commission understands that this latter submission was in response to an assertion by the TWU in its written submissions, namely, that the contract carriers will not submit to testing under the Policy in the absence of consultation. It was also submitted by PPL that a relevant breach of the contracts of carriage must arise, or be likely to arise from, the industrial dispute, rather than from the contract carriers' unilateral intention to breach their contracts. 28PPL also relied on s 332(5) in support of its contentions. The sub-section empowers the Commission to make an interim determination, but in order to enliven the provision the industrial dispute must concern the relevant contracts of carriage between PPL and its contract carriers. Support for the proposition was said to be found in an observation of Peterson J in Transport Workers Union of Australia New South Wales Branch v Conaust Ltd (1992) 46 IR 18. There, his Honour, in declining to make an interim determination under a predecessor provision (s 698 of the Industrial Relations Act 1991), said (at p 20): In my opinion, the section must intend that any interim determination will have some legal and practical effect; put another way, the determination is intended to either restore or maintain the current position by creating conditions equivalent to those prevailing between the parties "immediately before the occurrence of the events out of which the question, dispute or difficulty has arisen or might arise". The construction of s 698(7)(a) is that it is aiming at the restoration of the conditions existent before the events out of which the question etc has arisen or the maintenance of those existing at the time of the events out of which the question etc might arise. 29Consistent with his Honour's observations, PPL submitted that the TWU does not seek any interim determination which could have any legal or practical effect in respect of PPL, and the TWU can point to no change in the relationship between PPL and its contract carriers which requires reversal for the purpose of restoration or maintenance. 30In summary, it was PPL's contention that the "dispute", loosely characterised, was between the contract carrier and DPW. It was not a dispute "about an industrial matter" (a condition precedent necessary to invoke s 332) because the "dispute" concerns the conditions under which contract carriers might enter or access the Port Botany site, which is owned by DPW, an entity which is not a party to any contract of carriage. 31GT and Owens adopted the submissions of DPW and PPL. It was submitted on their behalf that contract carriers engaged by them have neither raised any concerns about compliance with DPW's Policy, nor indicated to them that they will not comply with the Policy. Accordingly, there is no relevant industrial dispute between GT and Owens and their respective contract carriers. 32It was further submitted on behalf of GT and Owens that: (a) the dispute is not a dispute concerning an 'industrial matter', as between Gregory and Owens and their respective contract carriers, sufficient to enliven the jurisdiction of the Commission under the Act. The Policy was neither implemented by Gregory or Owens nor binds them, and Gregory and Owens have no control over the conditions under which contract carriers engaged by them might access the Port Botany site operated by DP World. (b) The Commission can only exercise jurisdiction over parties to contracts of carriage, pursuant to section 306 of the Act. The Commission has no jurisdiction to deal with the subject matter of this dispute because: (i) while Gregory and Owens are principal contractors, they are not the parties implementing the Policy the subject of the Proceedings, nor do they have the power to control access to the site operated by DP World; and (ii) there is neither a contract of carriage between DP World and Gregory nor DP World and Owens nor between DP World and contract carriers engaged by Gregory and Owens. (c) The TWU can point to no change in the relationship between Gregory and Owens and their respective contract carriers which would require the Commission to make an interim determination, pursuant to section 332(5) of the Act, for the purpose of restoration or maintenance of conditions existing between the parties prior to the occurrence of the events giving rise to the industrial dispute. (d) A contract of carriage, as defined at section 309 of the Act, does not include, either expressly or impliedly, references to policies implemented by occupiers of premises at which contract carriers may attend. The subject matter of the Proceedings is not a condition within a contract of carriage between Gregory and Owens and their respective contract carriers. Accordingly, no contract determination can be made. 33It was submitted on behalf of ARTIO that pursuant to s 306 of the Act, the Commission's power under Chapter 6 is limited to the regulation of the behaviour of persons who are parties to contracts of bailment or contracts of carriage. ARTIO seeks the leave of the Commission to be removed as a respondent to the proceedings on the basis that the Commission lacks jurisdiction to "deal with the matter insofar as ARTIO is commenced". In written submissions, ARTIO relied on the following matters: ARTIO is not a party to the contracts of carriage over which the Commission has jurisdiction and no such assertion has been made by the TWU. ARTIO is far removed from the contracts regulated by Chapter 6. It is an association of employing contractors registered under Chapter 6 which represents the interests of principal contractors in the transport and logistics industry. None of the Respondents are members of ARTIO. Moreover, none of its members have made ARTIO aware of any dispute either between its members and contract carriers engaged by them or between its members and the TWU. Further and in the alternative, no order can be made by the Commission which binds ARTIO. Section 332(5) of the Act gives the Commission power to make a contract determination binding bailors and bailees or principal contractors and carriers who are parties to contracts of the class to which the determination relates. It is persons that fall within these categories that must be the parties to the industrial dispute. ARTIO does not fall within any of these categories and no such assertion is made by the TWU. 34SPC's submissions focussed on its response to two separate arguments advanced by the TWU in support of its contention that SPC is an "interested party" falling within the terms of s 332(1). The two arguments were characterised by SPC in written submissions as follows: SPC is considered a person carrying out a business or undertaking ("PCBU") under the Work Health and Safety Act 2011 ("WHS Act") in respect to the Site; and The operation of the Port Botany Landside Improvement Strategy ("PBLIS") in conjunction with the Policy may allegedly result delays in the loading/unloading of ships and in the imposition by SPC of penalty notices/fines on stevedores and transport companies who fail to load/unload in a timely fashion. 35In response to the first argument, SPC referred to the primary duty of care under the Work Health and Safety Act 2011 (WHS Act) which devolves upon a PCBU as the principal duty-holder under the WHS Act. According to SPC, the fact that it may potentially be a PCBU at the Port Botany site is not "a unique identifier" since there may be multiple businesses or undertakings at the site falling within the definition of a PCBU, which also have health and safety duties under the WHS Act in respect of the site. Relevantly, according to SPC, it has no day-to-day involvement in the activities of DPW at the site. Its responsibilities are limited to that of a landlord who has granted a long-term lease of the site to DPW, in relation to which DPW exercises full discretion and day-to-day responsibility for how DPW performs its stevedoring activities from the site. SPC also contended that DPW's Policy is a matter beyond its control or authority. The Policy relates only to the conditions imposed by DPW in relation to the entry of persons to the site. There is no obligation upon DPW to inform SPC of its intention to formulate and implement its Policy. 36In response to the TWU's second argument, SPC contended that the TWU has fundamentally misunderstood the role of SPC in relation to the operation of the PBLIS. SPC explained that PBLIS was established by the NSW Government under the Port and Maritime Administration Amendment (Port Botany Landside, Improvement Strategy) Regulation 2010 (the PBLIS Regulation) and the associated Port Botany Landside Operations Mandatory Standards. The PBLIS Regulation provides for the setting of and compliance with access and performance standards in relation to road carriers and stevedores at the Port Botany Container Terminals. A further function of PBLIS is to provide for the regulation by the Minister for Roads and Ports of charges imposed by stevedores and service providers in connection with the operation or provision of facilities or services of the port-related supply chain at Port Botany. SPC does not operate PBLIS. While it has responsibilities for the administration of PBLIS it does not possess any judicial or regulatory style authority over the enforcement of the PBLIS Regulation or the Mandatory Standards. Its sole responsibility is the improvement of landside operations at the site. 37In the context of the application of the DPW Policy, SPC explained that it has no ability to impose penalty notices on stevedores and transport companies that fail to load or unload in a timely manner. If a truck is delayed at the site as a result of the application of the DPW Policy, a system operating under the Mandatory Standards records the delay as a delayed truck turnaround time which has the effect that DPW becomes liable to pay a financial penalty to the truck carrier because of the delayed service. In the event that DPW (successfully) disputed payment of the penalty on the basis of the truck carrier's (the driver) failure to comply with the Policy, the practical result would be that no penalty would apply to either the truck carrier or DPW under the PBLIS regime as a result of a failure to comply with the Policy. The only exception to this, according to SPC, is where the driver is refused access to the site by DPW arising from a breach of the Policy in which case DPW has a discretion to claim a "non-service" under clause 31 of the PBLIS Regulation and claim from the driver a penalty of $100 which is payable directly to DPW. 38The TWU submitted that the jurisdictional issues raised by the parties are premature and the only "live" matter for consideration at this stage of the proceedings is whether a compulsory conference should proceed under s 332 of the Act. At this preliminary stage, the Commission is not concerned with questions of final relief and no application has been made for a contract determination or a final contested hearing. On this particular issue, the TWU also contended that contrary to the effect of the respondents' submission, conciliation is not a "speed bump" on the way to arbitration. Such an approach would undervalue the important conciliation function undertaken by the Commission with regard to industrial disputes generally. 39It was also contended by the TWU that the respondents' submissions go beyond the issue of jurisdiction to issues of discretion and merit. By way of example, it was said that SPC's contentions do not amount to a jurisdictional objection but simply to a contention that it is not sufficiently connected to the subject matter of the proceedings. To similar effect are the submissions of GT and Owens that a summons to attend a compulsory conference under s 332(1) would be futile because it could not achieve an accredited result. Again, this is not a jurisdictional objection. 40The TWU also contended that the relief it was seeking at this stage of the proceedings is that "persons" are summonsed to attend a compulsory conference. While the TWU appeared to accept as a fact that there was no contractual relationship between the contract carriers whom it represented and DPW it argued that this was not a critical matter at the conciliation stage. It would be a "significant matter" if an application was made for a contract determination which sought to bind DPW in the absence of any contractual relationship between the contract carriers and DPW. 41The TWU also directed the Commission's attention to a number of relevant provisions under the Act. It was submitted that statutory provisions dealing with proceedings at the stage of conciliation are commonly used to require persons who are not parties to the dispute to attend the proceedings. It follows that it is not a necessary prerequisite that the only persons who can be summonsed to attend a conciliation under s 332(1) must be persons who are or can be bound by an award. It was submitted that if it was the intention of the legislative draftspersons to confine participation in a compulsory conference under s 332 to those persons who are in a contractual relationship, that is, contract carriers and principal contractors, express terms would have been used to that effect. However, no such express words appear in s 332(1). Instead, the word "person" is used. If the word "person" is given its ordinary meaning it includes a wide range of persons and entities, including all those entities nominated as respondents to the notification. Accordingly, all the respondents may be summarised to attend a conciliation subject to two conditions. The first condition is that the Commission has a "reasonable cause to believe" that s 332(2) or s 332(3) applies. The second condition is that the summonsing of "a person" under s 332(1) must be for the purpose of bringing "the interested parties" to a settlement. The TWU did not contend that the terms may be used interchangeably. What was contended was that the power to summons "a person" under s 332(1) was analogous to a third party subpoena for the production of documents and that DPW, while it might not itself be an "interested party", was "a person" in relation to whom it would be useful to attend a conciliation in order to facilitate a resolution between other "interested parties". In relation to the expression "interested parties", the TWU submitted that because specific terms such as "contract carrier" and "principal contractor" do not appear in the sub-section, it follows that the broader expression "interested parties" is not confined to parties in a contractual relationship. 42The lower threshold requirement under s 332(1) that the Commission, "has reasonable cause to believe (that s 332(2) or (3) applies)" is met, according to the TWU, by sufficient material which has been placed before the Commission in relation to the application of s 332(2)(c), that is, that the TWU, a registered association under Chapter 6, has become aware of a dispute that might lead to carriers under contracts of carriage being in breach of those contracts. In support of the submission, the TWU relied upon observations of Hely J in St George Bank Ltd v Rabo Australia Ltd [2004] FCA 1360; (2004) 211 ALR 147 at [26] in relation to the expression "reasonable cause to believe": ... (c) the test for determining whether the applicant has 'reasonable cause to believe', as required by sub-paragraph (a), is an objective one: Hooper at [39]; Malouf v Malouf [1999] FCA 710 at [16]; Quanta Software International Pty Ltd v Computer Management Services Pty Ltd (2000) 175 ALR 536 at [24]; Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd [1996] FCA 391; BC 9602085 at 23. Further, the words 'or may have' cannot be ignored. The applicant does not have to make out a prima facie case: Quanta Software at [24]; Paxus Services at 733; (d) belief requires more than mere assertion and more than suspicion or conjecture. Belief is an inclination of the mind towards assenting to, rather than rejecting a proposition. Thus it is not sufficient to point to a mere possibility. The evidence must incline the mind towards the matter or fact in question. If there is no reasonable cause to believe that one of the necessary elements of a potential cause of action exists, that would dispose of the application insofar as it is based on that cause of action: John Holland Services Pty Ltd v Terranora Group Management Pty Ltd [2004] FCA 679 at [13], [14], [17] and [73]; ... 43The TWU then directed its submissions to the issue of whether there existed "an industrial dispute" (as required under s 332(2) of the Act). It was contended by the TWU on this issue that consistent with the broad definition of "industrial dispute" under the Act, a dispute includes a "threatened industrial dispute" (as opposed to a dispute in existence at the relevant time). Under the Act an "industrial dispute" is defined as, "a dispute (including a question or difficulty) about an industrial matter ...". Section 6 of the Act provides a definition of "industrial matter". Section 6(1) defines generally "industrial matter" as including, "matters or things affecting or relating to work done or to be done in any industry ...". According to the TWU, the facts presented before the Commission meet the general definition. The dispute concerns the drug testing of contract carriers under the Policy while those contract carriers are performing work. Subjecting the contract carriers to the requirements under the Policy clearly results in interruptions to the performance of their work. These facts, it was contended, give rise to an industrial dispute as defined and satisfy the opening words of s 332(2). Consideration 44I propose first to consider the ground relied upon by the respondents as to whether there is a relevant dispute. In submissions, the TWU characterised the dispute between contract carriers performing work at the site and DPW as an "industrial dispute". I accept for present purposes the broad description, insofar as it applies to a "dispute", relied upon by the TWU, that a dispute, as defined under the Act, contemplates within its meaning a threatened dispute, as opposed to one in existence at the time of the lodging of the Notification under s 332 of the Act. In that Notification, the dispute is said to arise from the proposed implementation of DPW's Policy, and critically, DPW's refusal to consult with the TWU in relation to both its implementation and its subject matter. In oral submissions, the TWU contended that the threat of a dispute arose because the implementation of the Policy would in effect require the contract carriers entering the site to submit to the drug-testing regime under the Policy which would impact upon, or interrupt, the work to be performed by those contract carriers. According to the TWU, the facts underpinning this contention are sufficient to satisfy the opening words of s 332(2) of the Act. 45There was no issue between the parties that there is no contractual relationship between DPW and any of the contract carriers performing work at the site. What was in issue was whether the existence of a contractual relationship between the parties to a dispute under s 332 was a necessary prerequisite for its application. 46DPW described Chapter 6 of the Act as constituting a bespoke regime of provisions that applies to contracts of carriage and contracts of bailment. According to passages from the Second Reading Speech to the Industrial Relations Bill 1995 (extracted earlier), Chapter 6 applies a modified industrial relations system for drivers of public vehicles and carriers of goods by vehicles who are engaged under contracts of carriage and contracts of bailment. The same passages refer to the legislative intention to retain a discrete system of regulation directed to contractual relations governed by Chapter 6. An examination of the various provisions contained within Chapter 6 suggests that it is limited to the regulation of persons who are in, or who have the capacity to enter into, contractual relationships, either under contracts of carriage or contracts of bailment. By way of example, s 311 defines those persons who may make application to the Commission for the exercise of, "a function of the Commission under this Part". Section 311 falls within Part 2 of Chapter 6 headed "Contract Determination". The only persons who make an application under this provision are persons in contractual relationships (either under a contract of bailment or a contract of carriage) or associations representing those persons. DPW does not fall into any of those categories. Nor does it fall within those classes or categories of persons who may enter into contract agreements under Part 3 of Chapter 6. In short, DPW is not an entity in relation to which any of those provisions under Chapter 6 apply. It is not a party to any contract of carriage; it is not within the categories of persons who may make an application under s 311, it is not a party able to be bound by a contract determination or a contract agreement, it could not seek registration as an association of employing contractors in which it could have compensation ordered against it by the Contract of Carriage Tribunal in relation to a contract of carriage. Given that these provisions are confined in scope to contracts of bailment and contracts of carriage, there is no reason to suggest that the dispute resolution procedures in s 332 would extend beyond those persons or entities who are, or have the capacity to be, parties to the classes of contracts falling within Chapter 6. The plain words of s 332 do not suggest otherwise. 47In submissions, the TWU relied on the word "persons" as it appears in s 332(1) as being broad enough to include entities such as DPW. It was contended by the TWU in this regard that the Commission's power to summons "persons" under s 332(1) was an analogue of a third party subpoena, subject only to the requirements of s 332(2) being met. According to the TWU, the Commission has power under s 332(1) to summons DPW as a "person" to a compulsory conference in order to assist in the resolution of a dispute between the "interested parties". It was not contended by the TWU that DPW was "an interested party". 48Section 332(1) empowers the Commission to summons "a person" to a compulsory conference, "in an endeavour to bring the interested parties to a settlement which will determine the matter in relation to which the subsection applies". On a plain reading of these words, the reference to "the subsection" refers to either subsection 332(2) or (3). The words, "bring the interested parties to a settlement" in combination with the application of either of the two subsections which follow s 233(1) suggest that they are intended to apply to the parties who are engaged in the industrial dispute of which the TWU, relevantly, becomes aware. Again, on a plain reading of those words in combination with s 332(2) (the provision upon which the TWU placed reliance) the expression "interested parties" must refer, compendiously, to all those persons or entities expressly nominated in s 332(2). Those persons fall into two groups under the sub-section. First those persons under paragraphs s 332(2)(a)-(d) who are either in a contractual relationship or have the capacity to enter into a contractual relationship, and secondly, bailees, principle contractors and associations registered under Chapter 6 who become aware of an industrial dispute that might lead or has led to the first group being in breach of their contracts. DPW, as I have earlier observed, does not fall into any of those categories, and accordingly it cannot be an "interested party" under the section. Indeed, it was not the TWU's contention that DPW was an "interested party" within the meaning of s 332(2). Rather, it was suggested that DPW was "a person" who could assist the "interested parties" to achieve a settlement of the industrial dispute. If DPW is characterised as "a person" but not, "an interested party" under the provision, then the industrial dispute (if there is one) must be between contract carriers and at least one other entity, not DPW. 49Assuming for present purposes that there is at least one other entity engaged in an industrial dispute with the contract carriers or that there is a threatened dispute between the contract carriers and some other entity with regard to DPW's Policy, the necessary conditions present in s 332(2) must still be satisfied. In this regard, the TWU placed reliance on s 332(2)(c) of the Act which it contends applies on the basis that it has become aware of a threatened dispute which "might lead to" the contract carriers whom it represents being in breach of their contracts. The only material before the Commission in relation to this issue is contained in Mr O'Callaghan's statement. While the Commission accepts that it is only required to form a reasonable belief with regard to the application of s 332(2)(c), I do not accept that the material which has been made available in order to undergo the necessary assessment of this issue is sufficient to make out a reasonable belief. 50The threatened industrial dispute concerns both DPW's proposed implementation of its Policy and the subject matter of that Policy. There is little evidence upon which the Commission can be satisfied to the requisite standard of reasonable belief, that the dispute "might lead to" the contract carriers breaching their contracts. Mr O'Callaghan states that there have been discussions between the TWU and "various transport companies" about the Policy. No information is forthcoming about the content of those discussions or the names of the transport companies concerned. There is a reference in the statement to urgent talks held between Mr Pirc and "various (unnamed) transport companies". There is also a reference to a conversation between Mr Pirc and Mr Thom, described by Mr O'Callaghan as "Patrick's Transport Manager". If the reference to "Patricks" is a reference to PPL, all Mr O'Callaghan says in relation to the content of that discussion is that he was told by Mr Pirc that Mr Thom said, "I don't know who I'm going to ring but I've got to ring somebody". This evidence falls short of providing any proper basis for a reasonable belief that the dispute "might lead to" the contract carriers breaching their contracts with unnamed transport companies. 51Of greater significance, in my view, is the difficulty which arises in identifying any other parties to the dispute. If DPW is not, and cannot be, a party to an industrial dispute under s 332 the only contenders are the other named respondents to the Notification. 52In relation to the principal contractors (PPL, GT and Owens) there is little or no evidence to support a finding that they are parties to a dispute with the contract carriers in relation to the implementation and subject matter of DPW's Policy. The only material made available to the Commission on the issue is found in Mr O'Callaghan's statement. I have already considered that material and it is unnecessary to repeat my findings. In short it provides no sufficient basis upon which the Commission could conclude with any level of confidence that those contract carriers represented by the TWU are engaged in an industrial dispute under s 332 with any of the principal contractors nominated as respondents to the Notification. 53PPL advised the Commission that none of its contract carriers have raised any concerns about compliance with the Policy, nor have they indicated to PPL that they will not comply with the Policy. PPL submitted that it is not bound by DPW's Policy and that the Policy is a matter beyond its control. The Commission notes clause 6(c) of the Carrier Access Agreement, referred to earlier, which requires each "carrier" to ensure that its drivers comply with DPW's Policy. However in the absence of any complaint or concerns raised by those contract carriers engaged by PPL at the Port Botany site about the Policy no basis is provided which might facilitate a conclusion that PPL is party to an industrial dispute with its contract carriers, or any contract carriers engaged to transport goods at the site. 54The same conclusion is available in relation to GT and Owens. It was submitted on their behalf that the contract carriers engaged by them have neither raised concerns about compliance with DPW's Policy nor have they indicated to them that they will not comply with the Policy. It was also submitted by GT and Owens that they are not bound by the Policy and otherwise have no control over the conditions under which the contract carriers engaged by them gain access to the Port Botany site. 55ARTIO in my view is even further removed from the ambit of s 332(2). ARTIO is an association of employing contractors registered under Chapter 6. It represents the interests of principal contractors. It was submitted on behalf of ARTIO that none of the other respondents to the Notification are members of ARTIO and none of ARTIO's members have informed it of the existence of any dispute between ARTIO members and contract carriers engaged by those members. Accordingly there is no material upon which the Commission could form any conclusion that ARTIO is a party to any industrial dispute with the contract carriers with regard to DPW's Policy. 56SPC as the landlord at the Port Botany site granted a long term lease of the site to DPW. It has no day-to-day involvement in the activities of DPW at the site. With regard to PBLIS, SPC explained that it does not operate the PBLIS and has no authority over the enforcement of the PBLIS Regulation or the Mandatory Standards. It plays no role in relation to the penalty regime implemented under the Mandatory Standards which is a matter solely between DPW and the drivers concerned. In these circumstances there is no material which could provide any basis for the existence of an industrial dispute under s 332 between SPC and the contract carriers engaged to transport goods at the site. 57The Commission accepts the TWU's contention that DPW could fall within the description of a "person" under s 332(1) able to provide assistance in any endeavour to bring the "interested parties" to a settlement which will determine the matter in relation to which s 332(2) is said to apply. In the absence of sufficient material which might have provided some support for the conclusion that there is an "industrial dispute" within the terms contemplated in s 332(2), and in the absence of identification of any opposing party to any dispute with the contract carriers represented by the TWU, the pre-conditions under s 332(2) which are necessary to invoke s 332(1) are simply not present, or made out. 58Given my findings it is unnecessary to resort to other contentions of the respondents in support of their applications. Accordingly the Commission grants the application of the respondents nominated in the Notification who have sought leave to withdraw from the proceedings. The fifth and sixth respondents did not appear before the Commission and submissions were not made on their behalf. No issue was raised in relation to their non-attendance, and the Commission's findings do not purport to extend to the fifth and sixth respondents. Order 59The first, second, third, fourth, seventh and eighth respondents to the Notification are granted leave of the Commission to be removed as respondents to the Notification. 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: 10 July 2013