Tay Tay Services Pty Ltd v Staples Australia Pty Ltd [2018] NSWIRComm 1030

Industrial Relations Commission New South Wales Medium Neutral Citation: Tay Tay Services Pty Ltd v Staples Australia Pty Ltd [2018] NSWIRComm 1030 Hearing dates: 3 August 20164 August 20165 August 201625 August 20168 September 2016 Date of orders: 18 May 2018 Decision date: 18 May 2018 Jurisdiction: Industrial Relations Commission Before: Tabbaa C AM Decision: Staples Australia Pty Ltd shall pay to Mr Yasar Koroglu a sum equivalent to five weeks' pay calculated on the basis of the weekly wage allocated to him by Tay Tay Services pty Ltd

The payment is to be made within 14 days of today's date Catchwords: Section 314-Reinstatement of contract-Agreement negotiated collectively but entered into individually by the owner drivers-Agreement for 3-year term-During its currency grievances raised in relation to wrong routes and residential deliveries-wrong routes issues parked until 4th quarter of 2016-Respondent agreed to negotiate new Agreements if issue of rates paid for residential deliveries is pursued-Withdrawal of transportation services over 3 days-four text messages sent by the respondent advising of material breach of the Agreement and seeking a return to work-Termination of the Agreements-Return to work by 33 of the 42 drivers on individual agreements-Koroglu did not take up the offer to contact the respondent to arrange an interview to discuss a new contract-The respondent did not contact Koroglu as it did some other drivers to invite him to an interview despite his lengthy service-Application for compensation-Material breach of agreement-2 weeks' notice required for termination-termination unfair-3 weeks' pay-both calculated on the sum the driver allocated to himself as wages from his company. Legislation Cited: Industrial Relations Act 1996 (NSW) Cases Cited: Cherry v Allied Express Transport 73 IR 305; Re Federated Storemen & Packers Union of Australia, NSW branch (1987) 22 IR 198 Re Transport Workers' Union (NSW) v Toll Transport Pty Ltd (2015) 253 IR 262 Shop, Distributive and Allied Employees' Association v Wollongong UniCentre Limited [2005] NSWIRComm 1138 AWU v BHP Steel [2004] NSWIRComm 1045 Transport Workers' Union of NSW (on behalf of TWS NSW Pty Ltd and Ready Transport) v Smartskip (NSW) Pty Ltd [2008] NSWIRComm 55 D & R Commercial v Flood Jones v Dunkel (1959) 101 CLR 298 R v Commonwealth Court of Conciliation and Arbitration; Ex parte BHP Co Ltd (1909) 8 CLR 419 Transport Workers' Union (NSW) v Robar Enterprises Pty Ltd (2013) 238 IR 84 D & R Commercial Pty Ltd v Flood (2002) 113 IR 44 Category: Principal judgment Parties: Tay Tay Services Pty Ltd - Applicant Staples Australia Pty Ltd – Respondent Representation: Counsel: M Gibian (Applicant)