Transport Workers' Union of New South Wales (on behalf of Darren Roger Bargwanna) and Robar Enterprises Pty Ltd (ACN 108 640 517) [2013] NSWIRComm 84

Industrial Relations Commission New South Wales Medium Neutral Citation: Transport Workers' Union of New South Wales (on behalf of Darren Roger Bargwanna) and Robar Enterprises Pty Ltd (ACN 108 640 517) [2013] NSWIRComm 84 Hearing dates: 12/03/2013, 13/03/2013, 22/04/2013 Decision date: 25 September 2013 Before: Backman J Decision: In IRC No 307 of 2012, the application under s 314 of the Act is dismissed and costs are reserved. The application under s 213 of the Act is dismissed and costs are reserved. Catchwords: Application under s 314 of the Industrial Relations Act 1996 (the Act) - applicant (TWU) alleges that the contract of carriage was terminated by the respondent, "for no valid reason" and was "harsh" - dispute concerning the condition of a pantechnicon owned by the respondent, attached to a truck owned by Darren Bargwanna, a driver engaged by the respondent under a contract of carriage (the agreement) - reasons for termination of the agreement considered - principles to be applied - held: respondent was entitled to terminate the agreement - termination was not otherwise "harsh" - application dismissed.

Application under s 213 of the Industrial Relations Act 1996 (the Act) - allegation that Mr Bargwanna was "victimised" by the respondent - allegation that the respondent terminated the agreement because Mr Bargwanna caused to be notified to the Commission a dispute under s 332 of the Act - meaning of "victimise" considered - rebuttable presumption under s 210(2) considered - application dismissed. Legislation Cited: Industrial Arbitration Act 1940 Industrial Relations Act 1991 Industrial Relations Act 1996 Cases Cited: Board of Bendigo Regional Institute of Technical and Further Education v Barclay and Another (2012) 290 ALR 647; [2012] HCA 32 Cherry v Allied Express Transport (1997) 73 IR 305 Davis v Amalgamated Television Services Pty Limited (1998) 81 IR 364 Deltec International Courier Pty Limited v Transport Workers' Union of Australia, New South Wales Branch (1993) 50 IR 341 Electricity Commission of New South Wales T/as Pacific Power v Crump (1993) 48 IR 296 Electricity Commission of New South Wales T/as Pacific Power v Nieass and Others (1995) 81 IR 46 Metropolitan Meat Industry Board v Australasian Meat Industry Employer's Union, New South Wales Branch [1973] AR (NSW) 231 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 Category: Principal judgment Parties: Transport Workers' Union of New South Wales (on behalf of Darren Roger Bargwanna) (Applicant) Robar Enterprises Pty Ltd (ACN 108 640 517) (Respondent) Representation: Mr D Mahendra of counsel (Respondent) Transport Workers' Union of New South Wales (Applicant) Blackwell Short Lawyers (Respondent) File Number(s): IRC 307 of 2012