Board of Bendigo Regional Institute of Technical and Further Education v Barclay and Another

Industrial Relations Commission (NSW)|2015-01-29

Mr A Joseph of Counsel - Respondents File Number(s): IRC 271 of 2014 and IRC 328 of 2014

Decision

There are two applications filed by the Transport Workers' Union of New South Wales (the Union) before the Commission for determination. The first concerns an application by the Union for relief from alleged victimisation pursuant to s 213 of the Industrial Relations Act 1996 (the Act) filed on behalf of Mr Jay Hornsey, a member of the Union. The respondent in that matter is Langmana Pty Ltd trading as Barnetts Couriers (Barnetts Couriers).
The second application seeks an order pursuant to s 314 of the Act for the re-instatement of Mr Hornsey's contract of carriage. The Union contends the contract of carriage was summarily terminated by Mr Robert Barnett (Mr R Barnett), a director of Langmana Pty Ltd, on 27 March 2014. In addition to Barnetts Couriers, the Union has also named Line Haul Pty Ltd (Line Haul) and Barnetts Factoring Pty Ltd (Barnetts Factoring) as respondents to this particular application.
Mr Hornsey was first engaged under the Contract with Barnetts Couriers in October 2003.

Mr Jay Hornsey

Mr Hornsey is a member of the Union.
In or around September 2004, he entered a verbal contract with Barnetts Couriers to both deliver and pick up freight on what he describes as the "Nowra Run".
On commencement with Barnetts Couriers, Mr R Barnett told Mr Hornsey that 30% of his total freight collection income goes to Barnetts Couriers to cover administration costs and a further 10% goes towards paying off the vehicle if he did not wish to purchase or provide his own vehicle. Mr Hornsey also alleged Mr R Barnett told him at the time that when the "capital on the vehicle is paid, the vehicle is yours."
Upon returning from holidays in or around 2007, Mr R Barnett allocated alternative vehicle to Mr Hornsey, who considered this vehicle to be in worse condition than his previous vehicle. Mr R Barnett told him that as he had not paid the vehicle off in time and given its age and high kilometres, his previous vehicle was sold. Mr Hornsey was subsequently told he would have to start paying the newly allocated vehicle off and when it was paid for, "it's yours."
In or around 2009, Mr Hornsey was scheduled to take pre-authorised leave. Shortly before commencing that leave, Mr Shaun Willis, a manager, told him the business was too busy for him to take leave and "If you go, there will not be a job for you when you come back." On his return from leave and following an enquiry, Mr Hornsey contended Mr Bob Allen, a Barnetts Couriers office employee confirmed he should report to work as normal. Upon his return, he was again allocated another vehicle. During an argument at that particular time with Mr R Barnett, Mr Hornsey made it clear that once he had paid the new vehicle off, "the vehicle is mine." According to Mr Hornsey, Mr R Barnett confirmed that arrangement.
In November 2013, Mr Hornsey noticed Barnetts Couriers had stopped deducting the 10% motor vehicle fee and he assumed the vehicle had been paid off. There was no formal notification that the deduction had ceased.
Mr Hornsey considered he was close to paying the vehicle off following a conversation with Mr K Barnett, a director of Line Haul in September 2013 to the following effect: Mr K Barnett: "Mum said that you are close to paying off your vehicle." Mr Hornsey: "Could you look into it for me."
On or around 19 March 2014, Mr Hornsey stated Mr R Barnett informed him the vehicle was booked in for a service and registration on 2 April 2014. As he had not received the registration papers, he approached Mr K Barnett who subsequently directed him to see Mr Johnson. The following conversation ensued: Mr Hornsey: "I have stopped being charged for vehicle usage, so I've paid my vehicle off, when am I going to get my registration papers?" Mr Johnson: "No one is getting their registration papers until the union stuff is resolved." Mr Hornsey: "What's that supposed to mean, the vehicle is mine. I have paid it off. That was the deal." Mr Johnson: "I've got nothing to do with it, you'll have to go and see Bob."
Mr Hornsey subsequently approached Mr R Barnett and the following conversation ensued: Mr Hornsey: "When will I receive my registration papers for the vehicle?" Mr R Barnett: "I don't have anything to do with it; you will have to take it up with Lindsay (Johnston)"
Mr Hornsey conferred with Mr K Barnett: Mr Hornsey: "I went to Lindsay and he told me to go to Bob, then Bob told me to go back to Lindsay, what is going on?" Mr K Barnett: "I'll speak to Mum and Pop [Robert Barnett] and find out what is going on."
Mr Hornsey deposed that on or around 26 March 2014, he approached Mr R Barnett again concerning the whereabouts of the registration papers and the following conversation ensued: Mr Hornsey: "If I don't own the vehicle yet, why have I stopped being charged the 10% motor vehicle usage fee?" Mr R Barnett: "Because the capital has been paid off. I don't get who gave you guys the idea that you are paying the vehicles off and that you will own them." Mr Hornsey: "You did." Mr R Barnett: "I only give the registration papers to people who behave themselves."
Following his conversation with Mr R Barnett, Mr Hornsey contacted Mr Lee Lawler, an official of the Union on 27 March 2014. The Union subsequently decided to notify a dispute to the Commission at approximately 10.00 am that day.
Mr Hornsey worked the balance of the day returning to the Fairy Meadow depot at approximately 3.30 pm. While unloading the vehicle, he noticed Mr R Barnett was standing nearby and the following conversation ensued: Mr Hornsey: "What vehicle will I be using tomorrow and the beginning of next week?" Mr R Barnett: "I have no vehicle for you to use, I have no work for you to do. You have no job here anymore."
Mr Hornsey stated the conversation "became quite heated": Mr Hornsey: "I've been here for 10 years, is that the way you're going to treat me?" Mr R Barnett: "Yep." Mr Hornsey: "What have I done wrong? Why are you treating me like this?" Mr R Barnett: "You get back too soon, and you won't change runs, and you have numerous customers that you are not allowed to go to."
Shortly thereafter, Mr Hornsey asked Mr Allen why he had been sacked. Mr Allen's response was: "I can't help you, it's not my decision. I have nothing to do with it. You know how it is here."
Mr Hornsey stated that when he first joined Barnetts Couriers, he damaged some freight destined for Glenview Industries in Nowra. That company subsequently told Barnetts Couriers that it did not want Mr Hornsey to handle their freight. As far as he was aware, Glenview Industries was the only customer that he was not allowed to deliver freight to.
It was Mr Hornsey's evidence that a new driver commenced performing "my run" the day following the termination of his contract. He contended there was clearly work for him to perform and a vehicle to use, contrary to Mr R Barnett's statement the previous afternoon.
Mr Hornsey contended he found it unreasonable that Barnetts Couriers required him to perform repairs to the vehicle and register it without providing him with the registration papers. He stated he was willing to make the vehicle roadworthy provided he was given ownership.
In cross-examination, Mr Hornsey considered his vehicle was subject to a hire purchase agreement and not a bailment agreement. In his view, the vehicle usage fee was used to pay off the vehicle. However, he did agree that he had never had a conversation with Mr Tony Barnett, a director of Line Haul "about paying off the vehicle or obtaining ownership of the vehicle." He further denied stating to Mr R Barnett in mid-March 2014, "Why the fuck won't you give me the rego papers to my vehicle?"
Mr Hornsey agreed that he had been banned from making deliveries to Glenview Industries in Nowra since 2004 because he had damaged some of their freight shortly after commencing with Barnetts Couriers.
Mr Hornsey agreed that he had received a warning in February 2013 for failing to wear Personal Protective Equipment (PPE) on the Fulton Hogan construction site at Gerringong when delivering freight to Timber Fix. He also acknowledged Bunnings Nowra had made certain complaints against him. However, he continued to make deliveries to Bunnings and Timber Fix.
Mr Hornsey also acknowledged the receipt of a warning for disobeying speed signs and directions on Greenwell Point Road on 6 February 2013.
Mr Hornsey denied telling Mr R Barnett to "Fuck off" in the conversation he had with him concerning ownership of the vehicle registered as BQ08GA.
Mr Hornsey agreed that when he approached Mr R Barnett in March 2014 concerning which vehicle he would be driving the following week, BQ08GA required repairs and its registration had expired or was close to expiry. He disagreed with the proposition that he was responsible for having the repairs made to the vehicle as Mr R Barnett "was dealing with it."
Mr Hornsey subsequently agreed that it was his obligation to ensure the required repairs were undertaken. He further agreed those repairs were substantial. However, he denied that Mr R Barnett told him he needed to get the vehicle roadworthy as the registration expired on 27 March 2014. Mr Hornsey also denied Mr R Barnett told him to get the vehicle roadworthy because there were no spare vehicles available for use in the following week. Rather, Mr R Barnett simply told him that he (the Contract) was terminated.
Mr Hornsey denied the proposition that the respondents had not told him that his contract had been terminated.
Mr Hornsey agreed that it was possible to carry out the required repairs and make the vehicle roadworthy without having the registration papers. He disagreed with the proposition that Mr R Barnett had told him that he could have the registration papers after the vehicle was made roadworthy and registered.
Mr Hornsey agreed that the vehicle was located at his home address between 27 March and 17 May 2014. He also agreed that when the vehicle was retrieved on 17 May 2014, he was given a letter accompanied by a Barnetts Courier docket, which he returned to the company with the notification, "Go fuck yourself."
Mr Hornsey agreed that he considered that he had been dealt with poorly by Barnetts Couriers and was not offered ongoing work because he was a member of the Union. Mr Hornsey further denied the proposition that he had not been terminated and his "stopping work had nothing to do" with his complaint as notified to the Commission or his membership of the Union
Mr Hornsey was unaware that some Union members had been provided with ownership of their vehicle "in the same period that you were not provided with ownership…" He strongly denied that the reason he stopped driving for Barnetts Couriers was because he refused to have his vehicle repaired and made roadworthy. Mr Hornsey acknowledged that there were a number of Union members working at Barnetts on the "same arrangement" paying the vehicle usage fee and also paying for their vehicle's repairs and maintenance. The following exchange occurred in the course of Mr Hornsey's cross-examination: Q. And you'd agree with me that there are some TWU members who had been provided in the same period that you were not provided with ownership of the truck, there were other TWU members who were provided with ownership or were provided the rego papers to their truck by Barnetts or by- A. I'm not aware if there's any TWU members. Q. And what I want to put to you is that the reason you stopped working at Barnetts, the principle reason that you stopped working at Barnetts, was because you refused to have your truck made roadworthy? A. No. Q. You were never sacked and you never stopped work - and your stopping work had nothing to do with you raising a complaint with this Commission or being a member of the TWU? A. Yes it was.
Mr Hornsey did not accept that it was his responsibility to ensure the vehicle was roadworthy and ready for registration. Mr Hornsey agreed that prior to 27 March 2014, he was not aware that he was required to have his vehicle repaired in order to make it roadworthy. He initiated no action to have the vehicle inspected for roadworthiness before the registration expired.
Mr Hornsey stated he sought to have the vehicle registration transferred as he "didn't feel it fair to have to pay for the registration, pay for the repairs of the vehicle when it wasn't in (his) name." In that regard, Mr Hornsey agreed that had he arranged for the vehicle to be repaired and registered, "you could continue to drive."
Mr Hornsey acknowledged that when he arrived at the depot on 27 March 2014, he was unable to drive his Line Haul supplied vehicle. Mr Hornsey confirmed that he had not arranged for a registration inspection prior to 27 March 2014 and agreed he could have spoken to Mr T Barnett about the situation or hired a vehicle to deliver and pick up his courier freight. However, he disagreed with the proposition that had he hired an alternative vehicle, he could have kept driving for Barnetts Couriers.
Mr Hornsey agreed that ordinarily, dispatch managers "hand out the work to the drivers" and not Mr R Barnett.
In re-examination, Mr Hornsey stated Mr R Barnett normally arranged for the vehicle to be registered and he would receive an invoice for repairs and registration costs with his payslip. Mr R Barnett also arranged for repairs. However, this was not the case in March 2014. Mr Hornsey considered it was common practice for drivers to be supplied with a loan vehicle when repairs were required to be made on week days.
Mr Hornsey considered it was unfair for him to pay for the required repairs and registration if the vehicle registration was not in his name as he was convinced he had paid for the vehicle.
Mr Hornsey regarded Mr T Barnett as a work colleague who undertakes the Batemans Bay run. He did not speak to Mr T Barnett concerning ownership of the vehicle.

Mr Lee Lawler

Mr Lawler is an official of the Union and is responsible for members engaged by Barnetts Couriers. He considered the Union had been in dispute with Barnetts Couriers since the beginning of 2012 in pursuit of a contract determination and vehicle ownership.
It was Mr Lawler's evidence that Mr Hornsey had spoken to him about the vehicle ownership issue on 24 and 26 March 2014 when the Union's Legal Department was instructed to notify a dispute to the Commission pursuant to s 332 of the Act.
Mr Lawler stated that following proceedings before the Commission as presently constituted on 4 April 2014, he understood there was an understanding reached by the parties whereby Mr Hornsey would return to work and the vehicle ownership would be transferred to him.
In cross-examination, Mr Lawler agreed with the proposition that the proposed contract determination sought to deal with the majority of the Union's and member concerns and a consent determination had been agreed by the parties whereby drivers could choose to be covered by the contract determination or remain under the existing franchise/bailment agreements. He further acknowledged that all drivers had agreed to remain under the franchise/bailment agreements.
Mr Lawler further agreed a number of drivers, including Union members, had been given the registration papers for their vehicle, including Mr Les Hill, prior to March 2014. He further agreed that subsequent to 27 March 2014 a number of drivers, including some Union members, had also received their vehicle's registration papers. Mr Lawler agreed that the Union was in dispute with Barnetts Couriers concerning the vehicle ownership issue on behalf of a number of members in addition to Mr Hornsey.
In re-examination, Mr Lawler stated drivers were required to provide their own vehicle under the proposed contract determination.

Mr Robert Barnett

Mr R Barnett is a director of Langmana and established Barnetts Couriers in 1980. Mr Barnett explained the "corporate" structure of the Barnett Group as follows: 1. Xmas Pty Ltd (Xmas) provides administrative services including the collection of monies. Xmas retains 30% of all collections and the remaining 70% is returned to the owner driver. 2. Barnetts Couriers engages franchises who are provided with the use of the business name, "Barnetts Couriers" and computerised radio network, an established customer base and access to area managers who assist franchisees with customer dispatch management, depot access and invoicing.
Mr Hornsey became a franchisee in or around 2004. At that time, Mr Hornsey did not have a vehicle nor could he raise the finance to purchase one. Accordingly, Xmas at that time provided drivers such as Mr Hornsey with a vehicle subject to a bailment agreement where drivers paid a 10% vehicle usage fee in addition to the 30% fee paid for factoring services. Under the arrangement, Xmas financed the vehicles through Toyota Finance and applied the 10% vehicle usage fee to offset the finance costs. Drivers paid all other vehicle operating costs including fuel, maintenance and repairs. In the event a driver no longer required the vehicle, it could be handed back without the payment of an exit fee.
In 2007, Xmas transferred its interests in the vehicles and debt owed to Toyota Finance to Line Haul. Line Haul is the current entity that enters into financial arrangements with Toyota Finance and offers vehicles to franchisees subject to a 10% vehicle usage fee.
In 2005, Mr R Barnett received legal advice that the Franchise Agreements should be updated because a number were operating on a "handshake deal." Shortly thereafter, all franchisees including Mr Hornsey were sent the following documents: * Franchise Disclosure document. * Franchise Agreement. * Factoring Agreement. * Bailment Agreement (where applicable). Mr R Barnett confirmed Mr Hornsey was sent a bailment agreement.
In 2012, Barnetts Factoring Pty Ltd commenced providing factoring services to franchisees. Legal advice obtained at that time recommended the company's agreements with franchisees be updated. Mr R Barnett confirmed Mr Hornsey received the following updated documents: * Franchise Disclosure document. * Franchise Agreement. * Factoring Agreement. * Bailment Agreement.
Mr R Barnett set out a number of matters in relation to Mr Hornsey's behaviour as a driver and certain complaints made by clients under Attachment "C" to his statement as follows: 11 February 2013 First official warning - failure to wear PPE contrary to RMS site rules at Fulton Hogan, Gerringong on 7 February 2013; belligerent attitude to storeman aged 70 and goods incorrectly delivered. Failure to obey speed signs and directions set by a traffic control leader (TCL) on Greenwell Point Road, Nowra, 6 February 2013. The TCL alleged in an email dated 10 February 2013 that Mr Hornsey's response to his request to slow down to 40kph was to raise his middle finger in an upward direction. 14 February 2013 Complaint from Bunnings Nowra. Mr Hornsey parked his vehicle in an illegal position contrary to a safety protocol. Responded aggressively to Bunnings employee by stating, "I always fucking park here." Mr R Barnett attached a computer printout that listed approximately 10 complaints concerning alleged tailgating or speeding recorded between 21 January 2009 and 19 December 2013.
In relation to Mr Hornsey's statement filed in these proceedings, Mr R Barnett stated: Mr Hornsey was both a sole trader operating his own courier business and a franchisee of the Barnetts Courier network. There is no guaranteed "run" on the network. Area managers dispatch jobs to franchisees and those franchisees can accept or reject the jobs allocated. Mr Hornsey was not terminated on 27 March 2014. Rather, it was his decision to no longer accept work with Barnetts Couriers. Mr Hornsey was never told that once he had paid off the capital for his vehicle, he would own that vehicle. Rather, he paid a fee to use the vehicle and was free at all times to terminate the arrangement and purchase his own vehicle.
Mr R Barnett attached copies of Recipient Created Tax Invoices signed by Mr Hornsey with respect to a number of Barnetts Couriers related corporate entities including Barnetts Factoring Pty Limited and Line Haul Pty Limited.
Contrary to Mr Hornsey's recollection of his conversation with Mr R Barnett on 26 March 2014, Mr Barnett stated the conversation was as follows: Mr Hornsey: "Why the fuck won't you give me the rego papers to my vehicle?" Mr R Barnett: "Hang on a minute Jay don't come to me about it. I don't own the vehicle." Mr Hornsey: "Other people are getting their vehicles, why not me?" Mr R Barnett: "I don't know why you have got the idea you were paying off your vehicle just because other people have. They have an agreement. Tony gives you a vehicle to use. If you don't want it, hand it back and go out and get your vehicle. Its that simple." Mr Hornsey: "Fuck off."
Contrary to Mr Hornsey's recollection of his conversation with Mr R Barnett on 27 March 2014 when he returned to the Fairy Meadow depot, Mr R Barnett stated the conversation was as follows: Mr Hornsey: "What fucking vehicle will I be using next week?" Mr R Barnett: "I don't allocate the vehicles or the work but if you don't have a vehicle then you can't work here." Mr Hornsey: "After fucking 10 years is that how your going to treat me?" Mr R Barnett: "You need to get the vehicle roadworthy or go and talk to Tony."
It was Mr R Barnett's evidence that at no time was Mr Hornsey's franchise agreement terminated. Mr R Barnett referred to correspondence (undated) sent to Mr Hornsey mid-May by Mr T Barnett on behalf of Line Haul set out under Attachment "E" to his statement: Dear Jay, We note that you currently have possession of a Line Haul vehicle and have had possession of that vehicle since 28 March 2014. I note also that you have not performed any work as a courier in the Barnetts business since 27 March 2014. The main reason you have not performed work since that date (and continuing) is your failure to have the vehicle made roadworthy. As you would be aware, since 27 March 2014, discussions have taken place between legal representatives for Barnetts Couriers and the TWU on your behalf, it was put on your in the IRC that one of your main demands was that you should be allowed to take ownership of the vehicle pursuant to you having paid sufficient monies in bailment fees to support transfer of ownership. Whilst we do not agree you are entitled to ownership of the vehicle, it has nevertheless, on a without prejudice basis, agreed to your request subject to the following: That you make the vehicle roadworthy so that it can pass over the registration papers; That you sign a Deed regarding terms of your engagement; Our clear understanding from the TWU (as of 16 April 2014) was that you were content to sign the proposed Deed of Agreement and that you understood you would have to make the vehicle roadworthy. We now understand (as of today) that you no longer want the vehicle nor want continue as part of the Barnetts Courier network. Barnetts Couriers is content to allow you to continue to work within the network on the terms previously expressed. Those terms remain open to you and your continued work within the Barnetts network is a matter for you. If you do not want to continue working with Barnetts Couriers then the vehicle must be returned as it legally remains Linehaul property. Our offer for you to take ownership of the vehicle and continue as part of the network remains open but cannot remain so indefinitely. We seek a response by 2pm on Monday 19 May. If we do not hear from you by that time we will assume you no longer want to work as part of the Barnetts courier business and will contact you to arrange repossession of the vehicle. Yours Tony Barnett Director Line Haul Pty Ltd
Mr R Barnett also maintained that as a franchisee, any issues concerning the vehicle maintenance remained with the franchisee, Mr Hornsey. However, Mr Hornsey required a roadworthy vehicle in order to work as a franchisee.
In relation to the industrial issues raised by Mr Lawler, Mr R Barnett considered he had sought to address the Union's issues as raised from time to time in good faith. He was unaware the Union had filed a dispute notification with the Commission on 27 March 2014 until he was advised of that fact by his solicitor on 28 March 2014.
Mr R Barnett referred to correspondence dated 12 May 2014 from his solicitors to the Union set out under Attachment "F" to his statement which confirmed a verbal contract was in place to transfer vehicles to Mr Mark Leonard, Mr Tony Moon and Mr Shane Court.
In cross-examination, Mr R Barnett stated he was a director and employee of Barnetts Couriers and has no standing with the other related service companies including Line Haul.
Mr R Barnett confirmed Mr Hornsey was a franchisee who also had an arrangement with both Barnetts Factoring and Line Haul.
Mr R Barnett said drivers can have a set area to operate from if they wished. However, if a dispatcher thinks the driver can made more money in another area, "he will offer him another area." He later qualified his answers by stating that drivers are first engaged by Line Haul on a casual basis for three months as "floaters".
Mr R Barnett explained that he did not book franchisee's vehicles in for maintenance and registration. Rather, the relevant driver books the vehicle in by writing the vehicle registration number on a whiteboard and subsequently leaving the vehicle in the yard where it can be inspected on a Saturday. Minor repairs can be undertaken during the afternoon shift. For major repairs, Mr R Barnett said he or someone else, possibly Mr Terry Leening, would organise an alternate vehicle for the franchisee.
Where a vehicle is due for registration, the driver puts a notation on the whiteboard and Mr Leening arranges for an authorised inspector, such as B Diesel to conduct an inspection on a Saturday morning. Mr R Barnett was unsure whether he had actually booked the vehicle in for registration check on 2 March 2014 as this task was normally the responsibility of the driver. However, he was aware that the vehicle required a number of expensive repairs.
Mr R Barnett described the arrangement whereby a driver is supplied with an alternative vehicle when his vehicle was being repaired as a "privilege". In support of that contention, Mr R Barnett said the vehicles were supplied with cameras and in Mr Hornsey's case there was a concern held about his driving and, "I was just waiting with baited breath till he had an accident, actually." He also confirmed Mr Hornsey was one of a small group of drivers that were not provided loan vehicles. Mr R Barnett also recalled that on 27 March 2014, he was aware that no spare vehicle was available for Mr Hornsey to use.
It was Mr R Barnett's evidence that he was not completely sure that Mr Hornsey had received the Franchise Disclosure and the other agreements given to drivers in 2005 and 2012. However, he believed Mr K Barnett may have given Mr Hornsey the documents because he knew Mr Hornsey quite well.
In relation to Mr Hornsey's conduct, Mr R Barnett observed "…he was a bloody good operator. He just need to improve his tongue a bit… you can always correct a bad driver."
Mr R Barnett stated he didn't assist Mr Hornsey to have his vehicle repaired because there was a lot of work to be undertaken due to missed services and the vehicle had been returned to the depot the day after "it was due for rego." Mr Hornsey had been given a fortnight to have the vehicle repaired. He was going to arrange for a mate to do the repairs - but left it to the last minute and subsequently sought a replacement vehicle.
Mr R Barnett could not recall telling Mr Hornsey in or around 2004 that the 10% vehicle usage fee goes towards paying the vehicle off in circumstances where he could not supply his own vehicle. He later contended "I don't think…" that is something (I) may have said.
Mr R Barnett was unaware the 10% vehicle usage fee had stopped being charged to Mr Hornsey. He further denied telling Mr Hornsey that he no longer had a job because he did not allocate jobs to the franchisees. Moreover, he could not recall the conversation as alleged by Mr Hornsey when he returned to the yard on 27 March 2014 other than Mr Hornsey making an enquiry about which vehicle he would be using whilst his vehicle was undergoing repairs.
Mr R Barnett could not recall telling Mr Hornsey that he only gave registration papers to those drivers who behave themselves. It was not his responsibility to do so.
In re-examination, Mr R Barnett confirmed that the franchise, factoring and bailment agreements given to franchisees in 2005 were all in the same form as those attached to that statement.
Mr R Barnett further confirmed that he prepared his statement and to the best of his ability, his recollection of events was reflected in his statement.

Mr Shaun Willis

Mr Willis is an Area Manager contracted to Barnetts Couriers. He provides franchisees with dispatch services in the Sydney metropolitan area.
In response to Mr Hornsey's witness statement dated 13 June 2014, Mr Willis stated: 1. He did not regularly dispatch work to Mr Hornsey on the grounds that he did not wish to work in the Sydney area. 2. He understood Mr Bob Allen, Area Manager, Illawarra dispatched most of Mr Hornsey's work. 3. He could not recall Mr Hornsey's alleged conversation with him in or around 2009 concerning a threat that if he took planned leave, there will be no job upon his return. Further, Mr Willis stated he would not have said the words attributed to him by Mr Hornsey. 4. Franchisees do not have fixed runs and it is open to them to accept or decline a job dispatched by the Area Manager.
In cross-examination, Mr Willis was emphatic that he did not recall the alleged conversation with Mr Hornsey in 2009. Nor did he utter the words as alleged concerning Mr Hornsey taking planned leave.
Mr Willis stated he did not have the right to terminate franchisees - that was the role of Mr R Barnett. Mr Willis was also unaware of any occasion where Barnetts Couriers had terminated a franchisee.
With respect to Mr Hornsey's contentions concerning fixed runs, Mr Willis confirmed most drivers might cover the same general area day to day. However, they are not guaranteed that particular area. Mr Hornsey would start work in Nowra or Wollongong depending on what work he wanted to do on the particular day.
With reference to Mr Hornsey's statement that Mr Willis was in the office with Mr Allen during the afternoon of 27 March 2014, Mr Willis in re-examination stated he thought that he was on holidays overseas at that time. Mr Willis later conceded he may have commenced his leave on 28 March 2014 - but in any event, Mr Willis' recollection was that he "definitely didn't speak to Mr Hornsey on that day."
Mr Willis further confirmed Mr Allen would allocate work to Mr Hornsey and Mr T Barnett would allocate the vehicle for him to use on behalf of Line Haul.

Mr Tony Barnett

Mr T Barnett is a director of Line Haul. In further evidence in chief, Mr T Barnett confirmed he signed and had caused to send the letter to Mr Hornsey set out in Attachment "E" to Mr R Barnett's statement, in or around mid-May 2014.
Line Haul provides vehicles and trailers to franchisees to enable them to operate a franchise courier business. Line Haul finances the vehicles through Toyota Finance. Line Haul subsequently enters into a bailment agreement with the franchisee to provide them with a vehicle and in return, the franchisee pays a vehicle usage fee for the period they are in possession of the equipment. A copy of a current bailment agreement was set out under Attachment "A" to his statement.
In response to Mr Hornsey's statement dated 13 June 2014, it was Mr T Barnett's evidence that at no time had he ever entered into an agreement with Mr Hornsey "for him to be paying off or obtain(ing) ownership of my vehicle."
Mr T Barnett referred to Attachment "B" to his statement, a quotation dated 30 March 2014 from B Diesel to undertake repairs totalling $6,060.56 to Mr Hornsey's vehicle. Mr T Barnett stated he asked Mr Hornsey to pay for the repairs "if he wished to continue to be in possession of it."
Under the bailment agreement, Mr Hornsey was free to return the vehicle at any time without any termination penalties.
Mr T Barnett denied the allegation that he had victimised Mr Hornsey because he was a member of the Union.
In relation to Mr Lawler's stated dated 23 July 2014, Mr T Barnett stated Line Haul was not an associated entity of Barnetts Couriers. Rather, Line Haul is a separate service company that provides services to franchisees. However, franchisees are under no obligation to utilise Line Haul.
Mr T Barnett explained the role of Line Haul was to lease a vehicle through Toyota Finance and fit the vehicle as necessary to suit the requirements of the courier service. He suggested that Line Haul was part of the Barnetts Couriers franchise system.
In return for a vehicle to use as a franchisee, Mr T Barnett further explained that franchisees enter into a bailment agreement and pay a vehicle usage fee for that privilege. He said a copy of the bailment agreement was set out in Attachment "A" to his statement was given to franchisees as part the "pack of contracts" franchisees were given by Mr R Barnett at the relevant time. He understood the executed copies of the bailment agreement were held by Mr Johnston who is located at the Fairy Meadow depot.
Mr T Barnett stated he was unaware as to how the bailment agreements operated as he looked after the vehicles and the "paperwork side" of Line Haul was administered by Mr Johnston and Barnetts Factoring. He further stated that his father, Mr R Barnett had nothing to do with the Line Haul business including the provision of vehicles to franchisees or their maintenance and service. Mr T Barnett disagreed with the proposition that Mr R Barnett "is the man who deals with the franchisees on a day to day basis."
Mr T Barnett stated he was aware that the current proceedings before the Commission pressed by the Union were as a result of Mr Hornsey's contract of carriage being allegedly terminated. He further understood there was a dispute about the ownership of the vehicles provided by Line Haul. He disputed the Union's contention that Mr Hornsey was paying off his vehicles in instalments. With reference to Mr Perry, who the Union contended obtained the registration papers and ownership of his vehicle at the end of 2013, it was Mr T Barnett's evidence that Mr Perry was not paying his vehicle off in instalments. However he understood that his sister, Ms Karen Barnett, who works for Barnetts Factoring told him in or around the end of 2013 that Mr Perry had "paid off the vehicle" and on that basis he arranged for the transfer of registration.
Mr T Barnett was unaware that Mr Perry was not a member of the Union. Mr T Barnett was adamant that there were no drivers paying off their vehicle. He maintained this stance despite being told by Mr Warnes that Mr R Barnett had agreed in evidence that there were situations where drivers were paying off their vehicle. However, he was unable to state how many vehicles had been handed across to drivers in addition to that transferred to Mr Perry.
Mr T Barnett was aware that Mr Hornsey stopped working with Barnetts Couriers on 27 March 2014 but was unaware which driver took over the "Nowra run" the following day. He further stated that he was aware there were no spare vehicles in the yard at the time as all vehicles had been allocated to drivers. Mr T Barnett explained that a number of spare vehicles were available for allocation to drivers in the event of breakdown or maintenance. Whilst unsure of the exact number of spare vehicles, he thought there were two. He further explained that it was his understanding that on Friday, 28 March 2014, two new drivers started and the spare vehicles had been allocated to them.
With reference to his statement that he asked Mr Hornsey to pay for the repairs, Mr T Barnett said he actually asked someone in the office to communicate that message to Mr Hornsey. Mr T Barnett further stated that the repairs Mr Hornsey needed to undertake were set out in the "B Diesel" report.
Mr T Barnett confirmed that the "main reason" Mr Hornsey was not working was because of his failure to have the vehicle made roadworthy and the fact that there was no spare vehicle available for him to use.

Ms Kelly Woodward

Ms Woodward is contracted to Barnetts Factoring to provide administration and payroll services. Ms Woodward explained Barnetts Factoring is contracted by franchisees to provide invoicing and credit control, the communications/booking network, revenue collection, net factoring fee distribution and remunerate franchisees.
Attachment "A" to Ms Woodward's statement set out Mr Hornsey's invoices for the 2012/13 financial year. Total franchise collections amounted to $108,816.02. After the deduction of vehicle usage fees, fuel and expenses covering repairs and insurance, the net amount paid to Mr Hornsey was $41,158.99. Attachment "B" to Ms Woodward's statement set out invoices for the 2013/14 financial year (to 4 April 2014). Total franchise collections totalled $76,021.81 with a net payment to Mr Hornsey of $30,530.61.
It was Ms Woodward's evidence that Barnetts Factoring ceased charging the 10% vehicle usage fee to Mr Hornsey in November 2013 as a result of an administrative error. Further, she contended that at no time had she been told which franchisees were members of the Union.
Ms Woodward explained that Mr Hornsey's tax invoices for the period 21 September 2012 to 19 April 2013 did not include the 10% motor vehicle usage fee due to a computer based administrative error.
In cross-examination, Ms Woodward stated the administrative error concerning the non-deduction of the vehicle usage fee also affected a small number of other franchisees when it was "realised they were still in a Line Haul vehicle and they didn't have their own vehicle." In that regard, Ms Woodward thought someone must have brought the anomaly to her attention. However, she could not remember who told her. There was a new computer system introduced around the time the error was made. Affected drivers, including Mr Hornsey, were not required to pay the vehicle usage fee for the duration of the error over approximately seven months.
Ms Woodward's attention was subsequently taken to Attachment "B" to her statement and Mr Hornsey's tax invoices for the period 15 November 2013 to April 2014 where the vehicle usage fee was not deducted. Mr Woodward explained the non-deduction of the fee was a further administrative error and during that period, Mr Hornsey did not contact her about it.
Ms Woodward was not personally aware of any instance where Line Haul had allowed a franchisee to pay off their vehicle over time nor has she overseen any paperwork instructing Mr T Barnett to transfer a vehicle's registration papers.

Union

Set out below is a summary of the Union's submissions in relation to both matters. Shortly stated the Union contended:

The contract of carriage was terminated on 27 March 2014 when Mr R Barnett, a director of Barnetts Couriers told Mr Hornsey "we no longer would be providing a vehicle… to Mr Hornsey" and "there was no further work for him" with Barnetts Couriers.
The respondents' view was that Mr Hornsey "was the reason that the contract was brought to an end" because he did not organise the necessary repairs required for registration or, in the alternative, Mr Hornsey did not present himself for work with a roadworthy vehicle between 27 March and mid-May when the vehicle was returned to the Fairy Meadow depot.
It was beyond doubt that a practice existed whereby spare vehicles were made available in circumstances where a driver's vehicle was off the road and subject to repairs.

In cross-examination, Mr R Barnett reflected on Mr Hornsey's driving skills and stated, "he would never lend him a vehicle". Later, he said Mr Hornsey was "a great person" and "how well he got along with him", which contradicted his evidence in chief that sought to denigrate Mr Hornsey.
The Union was critical of Mr R Barnett's demeanour in cross-examination where it contended "he attempted to pass himself off as an individual who does not know the goings on of day to day operators." Rather, the evidence of Mr Willis, who stated decisions concerning franchisees "had to be run past Mr R Barnett", confirmed that Mr R Barnett was the person responsible for terminating franchisees, should he be preferred.
Mr R Barnett played an integral role in the provisions and maintenance of vehicles to franchisees such as Mr Hornsey, a role beyond that explained to the Commission in cross-examination. The Union further submitted that Mr R Barnett and Mr T Barnett arranged for the vehicles to be repaired and maintained despite the vehicles being under the control of Line Haul.
Mr R Barnett had a reason to terminate Mr Hornsey's contract - his evidence in cross-examination was that he did not want Mr Hornsey on the road, citing alleged safety concerns that should have been put to Mr Hornsey directly.
Mr Hornsey was a truthful witness who acknowledged he was financially responsible for the maintenance of his vehicle. In contrast, Mr R Barnett was evasive and "gave answers that contradicted answers given previously." Mr R Barnett "drastically understated" his role in the business. His memory was unreliable and the Commission cannot be confident that Mr R Barnett recalled the exact conversations and accordingly, the evidence of Mr Hornsey should be preferred. Mr R Barnett's evidence was that "he did not want Mr Hornsey on the road".
The overwhelming evidence strongly suggests that s 314 of the Act is enlivened on the grounds that Barnetts Couriers, through Mr R Barnett, terminated the contract. No explicit reason was given for the termination. The vague allegations concerning work performance and safety were not put to Mr Hornsey prior to termination. Nor was Mr Hornsey given any opportunity to respond or defend his alleged behaviour - he was simply terminated summarily without warning. The Union relied on the decision in Cherry v Allied Express Transport (1997) 73 IR 305 to support the proposition that when considering an application under s 314 of the Act, the Commission should consider the factors set out under s 88 as are relevant to the termination of a contract determination.
The alleged customer complaints and warnings against Mr Hornsey attached to Mr R Barnett's Statement do not form any basis for termination of the contract. Mr R Barnett seemed confused as to the reasons these complaints and warnings were attached to his Statement.
Mr Hornsey was victimised because he was a member of the Union consistent with the provisions of s 210(1)(a). He was not given ownership of his vehicle as promised by Mr R Barnett and "defended" by Mr Johnston due to his membership of the Union. There has been no rebuttal of Mr Johnston's Statement. At the time Mr Hornsey's contract was terminated, Mr Perry was given the ownership of his vehicle.
Mr Johnston was described by Mr T Barnett as the "go to" person at Fairy Meadow. He is clearly a person of some influence within the Barnetts Group and a decision maker as evidenced when Mr Johnston stated to Mr Hornsey words to the effect that no-one would receive their registration papers "until the Union stuff is resolved".
Moreover, Mr Hornsey's contract was summarily terminated by Mr R Barnett shortly after the Union notified a dispute with the Commission on 27 March 2014. The Union contends it is reasonable to conclude that Mr Hornsey's termination was in response to him exercising his right through the Union to have a dispute heard and resolved before the Commission: ss 210(1)(d) and 210(1)(g).
Mr Hornsey does not seek reinstatement and on that basis, should the respondents consider that s 314(4) should be interpreted narrowly - that there is no jurisdiction enlivened to deal with Mr Hornsey's claim, the Union stands by the current application before the Commission which seeks reinstatement of the contract of carriage.
The Union noted that while Mr Hornsey may have said he is no longer interested in working for Barnetts Couriers, the respondents have also said they no longer wish Mr Hornsey to work for them. It therefore follows that s 314(4) requires that if the Commission considers that it would be impractical to make a determination for reinstatement, it may order the principal contractor to pay the carrier an amount of compensation. Conversely, if the Commission is satisfied, it may reinstate the contract notwithstanding the stated position of the parties.
The Union considers Mr Hornsey has been victimised by all three respondents by not providing him with the registration papers as promised because he was a member of the Union and by terminating his contract following the Union's dispute notification on 27 March 2014. Mr Johnson's conversation with Mr Hornsey at the time confirmed the respondents were concerned about Union related issues. Mr R Barnett later told Mr Hornsey that "I only give the registration papers to people who behave themselves".
The Union submitted Mr Hornsey understood that he had paid his vehicle off when he stopped paying the vehicle usage fee - an "administrative error" according to Ms Woodward's evidence.
The Union contended that prior to the dispute notification on 27 March 2014, Mr Hornsey had received no warnings concerning any pending disciplinary action or moves by Barnetts Couriers to terminate his contract. Termination of his contract of carriage shortly after the dispute notification was filed was "beyond coincidence".
The respondents conduct represents a clear breach of ss 210(1)(a) and 210(1)(g) and Mr Hornsey should be compensated for lost remuneration. In that regard, the Union submitted Mr Hornsey should be compensated for the motor vehicle usage fees paid.
The Union sought the following remedies on behalf of Mr Hornsey:

An order that Barnetts Couriers pay Mr Hornsey the whole amount of remuneration lost by Mr Hornsey pursuant to s 213(2)(c).
An order that Barnetts Couriers pay Mr Hornsey the whole amount of money paid towards the ownership of the vehicle given the fact the vehicle was never given to Mr Hornsey, pursuant to s 213(2)(c).
An order that Barnetts Couriers do not further victimise members of the Union in relation to requests for ownership of vehicles pursuant to s 213(2)(e).
An order that Barnetts Couriers do not further victimise members of the Union in relation to proceeding initiated by the Union in the Commission pursuant to s 213(2)(e).
An order that Barnetts Couriers pay Mr Hornsey compensation of 6 months remuneration at his average level of pay pursuant to s 314(4) of the Act.

Mr Hornsey did not seek reinstatement of his contract of carriage.

Victimisation Allegations

The respondent submitted that the Union's case that Mr Hornsey has been victimised on the grounds set out in ss 210(1)(a), 210(1)(d) and 210(1)(g), must fail unless the Commission accepts that Mr Hornsey was: 1. Victimised by the respondents (or any of them). 2. That victimisation occurred due to the matters relied upon being ss 210(1)(a), 210(1)(d) and 210(1)(g).
The respondents noted there is a reverse onus set out in section 210(2) of the Act. This statutory presumption may be rebutted if there is direct testimony from the person alleged to have victimised Mr Hornsey and that testimony is regarded as accurate: 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 at [77] per Backman J ('Bargwanna') referring to Board of Bendigo Regional Institute of Technical and Further Education v Barclay and Another (2012) 290 ALR 647 at [42]-[45] ('Barclay').
The respondents do not accept that Hornsey has been victimised at all. Mr Hornsey had used three different vehicles under bailment arrangements with Line Haul Pty Ltd over a period of some ten years. At no stage was there any agreement between Mr Hornsey and anyone that he would be entitled to the ownership of a vehicle after a period of time or subject to particular conditions or after paying a particular amount by way of bailment fees.
It is the case that certain drivers in the Barnetts Couriers business, both Union members and others have been provided, as a discretionary benefit, the possession of a vehicle after driving it for a period of time. This is a discretionary benefit and has never been the subject of a rule or standard arrangement within the respondents' businesses.
The respondents say that the only reason that Mr Hornsey did not get possession of the vehicle was because it was not roadworthy and that the only reason he ceased driving for the Barnetts Courier network was his failure to make the vehicle roadworthy. This is an obligation on all drivers and Mr Hornsey was treated the same as everyone else.
Similarly, the only reasons he stopped driving was his refusal to attend to maintenance of his vehicle. In that regard, Barnetts Couriers and Line Haul wrote to Mr Hornsey in May 2014 and made it clear that he was entitled to keep driving if he wished to but he had to repair the vehicle. Instead, Mr Hornsey returned the keys of the vehicle on 20 May 2014.
Finally, it is unclear which, if any of the respondents is being said to have taken action against Mr Hornsey in any material respect. Accordingly, unless alleged unlawful action can be proven against particular respondents, the proceedings (notwithstanding the denial of any unlawful conduct) must fail against those particular entities.

Reinstatement of Contract of Carriage

Section 314 does not, on its face, provide any real guidance as to how applications should be dealt with or the circumstances in which compensation may be payable, other than where a contract 'has terminated'. In Bargwanna, Backman J said at [56]-[57]: 56. Section 314 gives no clear guidance on the principles to be applied. Section 314(1) simply refers to a contract of carriage "that has terminated". Commentary to the section set out in the Butterworth's looseleaf service refers to termination (of the contract) by the principal contractor or by the carrier or by the effluxion of time or by operation of law. Section 314(1) empowers the Commission to make a contract determination with respect to reinstatement. A provision in identical terms to s 314(1) was the now repealed s 680(3) of the Industrial Relations Act 1991. In Deltec International Courier Pty Limited v Transport Workers' Union of Australia, New South Wales Branch (1993) 50 IR 341, a Full Bench made the following observations on the operation of the sub-section (at 349): The first thing to observe about the sub-section is that it enables the Commission to make a contract determination referable to a contract of carriage "that has terminated" and to grant relief "with respect to the reinstatement" of that contract. The sub-section is thus concerned, in its terms, with relief against contracts which have come to an end for whatever reason, termination by the principal contractor or by the carrier or by the effluxion of time or by operation of law, and where there may or may not be cause for terminating the contract; and the relief provided is a determination with respect to the reinstatement of the contract. In other words, the sub-section is not concerned with the concept of dismissal as in an employment relationship and which is catered for now in Pt 8 of Ch 3 of the Act, or previously by s 20A and other relevant provisions in the former Industrial Arbitration Act, where the remedies of reinstatement, re-employment and compensation for lost wages are available. Here, there is the single remedy of a determination with respect to the reinstatement of a contract of carriage between a principal contractor and a carrier; not, we emphasise, concern with some concept of re-engagement or the re-making of a contract of carriage comparable to the re-employment of an employee. 57. In Cherry v Allied Express Transport (1997) 73 IR 305, Peterson J, dealing with an application under s 314 of the Act, referred to an amendment made to the Industrial Arbitration Act 1940 which resulted in the conferral of power to make a contract determination for the reinstatement of a contract of carriage, "that has terminated". In the course of reasons on the issue, Peterson J also considered the historical context underpinning the amendment, remarking (at 309): ... In the light of this history, it seems to me appropriate to interpret the power as one which is to be applied, at least if not solely, in circumstances where there has been an "unfair" termination of a contract of carriage. This means that it may be applied in the same circumstances as apply to employees. Here that involves considerations of resignation or constructive dismissal, reinstatement and compensation.
The respondent submitted there were two jurisdictional prerequisites to the Commission entertaining an application under s 314 of the Act. Firstly, the contract must have been terminated. Given Mr Hornsey has returned the vehicle, the respondent considered he had evinced an intention to no longer continue any contractual relationship with any of the respondents. Accordingly, the Commission may consider the contract has terminated.
In the event the Commission was to consider whether Mr Hornsey ought to be awarded compensation arising from the termination of the contract of carriage, the question who initiated the termination and the circumstances of that termination would be centrally relevant to whether compensation should be paid and the quantum of that compensation.
The respondent submitted it was clear in this matter that the termination was at the initiative of Mr Hornsey when he returned the vehicle on 20 May 2014. Mr Hornsey had the choice to continue driving and chose not to. He subsequently returned the vehicle rather than take possession and continue working within the business. In such circumstances, no compensation should be awarded.
Secondly, the respondents submitted that notwithstanding the terms of ss 314(4) and 314(5) of the Act, the wording of s 314(1) strongly suggests a jurisdictional requirement is that Mr Hornsey must be seeking reinstatement and it is only in circumstances where the Commission considers that reinstatement is not practical that it may order compensation.
The respondents submitted that s 314 is quite unlike the unfair dismissal provisions in Chapter 2, Part 6 of the Act where an applicant may choose the remedy they seek. Accordingly, as Mr Hornsey has expressly ruled out reinstatement, the application should be dismissed for want of jurisdiction.

Remedies sought by the Union

The respondents submitted the orders sought by the Union should not be made by the Commission. In particular, the respondents note that the Union seeks an order that "monies paid towards the ownership of the vehicle be returned." The respondents described this notion as nonsensical and argued that if money was to be returned to Mr Hornsey, the practical effect would be that Mr Hornsey has had use of a Line Haul vehicle for ten years at no cost. The respondents doubted whether s213(2)(c) of the Act was sufficiently broad to allow such an order to be made.
The respondents submitted there was no basis nor were any allegations made to support the orders sought by the Union that Barnetts Couriers do not further victimise members of the Union in relation to requests concerning vehicle ownership or in relation to proceedings initiated by the Union in the Commission pursuant to s 213(2)(e) of the Act.
Any award for compensation must take into account the fact that Mr Hornsey resigned as well as his pre and post resignation earnings.
The respondents submitted the alleged victimisation is said to be the respondents' failure to hand over the vehicle and transfer the registration to Mr Hornsey. The respondents deny they have victimised Mr Hornsey.
The respondents submitted Mr Hornsey had possession of the vehicle from in or around early April until mid-May 2014.
The respondents submitted that the reverse onus under s 210 of the Act can be rebutted if the employer can satisfy the Commission that the alleged conduct was not a substantial and operative cause of the detrimental action. Against that backdrop the Commission needs to determine: 1. Was there in fact detrimental action? and 2. Were the matters as alleged by the Union a substantial and operative cause of that detrimental action?
The respondents, particularly Barnetts Couriers do not concede that they took any action to terminate Mr Hornsey's contract of carriage. Mr Hornsey appears to have consulted a number of people concerning his vehicle. Ultimately, he approached Mr R Barnett on 27 March 2014 and effectively said: "My vehicle needs repairs, it can't stay on the road and it's out of rego - what am I doing next week?" Mr R Barnett subsequently informed Mr Hornsey that he was required to have the vehicle repaired as there were no spare vehicles available. That statement by Mr R Barnett was not one terminating Mr Hornsey's contract. Rather, he was saying to Mr Hornsey that as far as Barnetts Couriers was concerned: "You can't work for us any more - you need to get the vehicle repaired."
The letter sent to Mr Hornsey by the respondents in mid-May 2014 clearly stated that the reason Mr Hornsey had not worked for Barnetts Couriers since 27 March 2014 was due to his failure to have the vehicle made roadworthy. The letter also stated that the respondents were in discussion with the Union and were prepared to transfer the registration subject to a deed of release and the vehicle being roadworthy. Mr Hornsey refused this offer and returned the vehicle with the offensive "go fuck yourself" notation.
Mr Hornsey in evidence accepted it was his responsibility to "get the truck fixed".
There is no evidence to support the proposition that Mr Hornsey has been victimised because of his Union membership.
Mr Hornsey had worked for Barnetts Couriers for more than ten years. He admits in evidence that he had previously arranged for the registration of his vehicle. Despite that admission, he does nothing to affect the known and required repairs. Rather, he simply turns up on the afternoon of 27 March 2014 when the registration is due to expire and seeks the use of another vehicle. Accordingly, he could not work on 28 March 2014 as no spare vehicle was available.
Barnetts Couriers relied on the decision of the High Court in Barclay to support the proposition that the Commission is required to look at the objective and subjective views and the evidence given by the employer when deciding that in all the circumstances of the particular case, they have rebutted the allegation that any action taken by the employer was for a prohibited reason.
Barnetts Couriers submitted that upon examination of Mr R Barnett's evidence, there is nothing that suggests Mr Hornsey's membership of the Union, the fact that the Union had notified a dispute to the Commission or Mr R Barnett's conduct on 27 March 2014 was detrimental conduct within the meaning of s 210 of the Act. In summary, the respondents' position was that there was no actual detriment caused to Mr Hornsey until he decided to return the vehicle in May 2014 - and in the event the Commission finds that Mr Hornsey's decision caused some degree of detriment to himself, it was not for the reasons as alleged in the victimisation application.
Mr Johnston's comments shortly before 27 March 2014 were clear - he had nothing to do with the issues raised and referred Mr Hornsey to Mr R Barnett.
Section 210 provides that once an employee or prospective employee has demonstrated detriment as a result of an action by an employer or industrial organisation and the alleged cause of that detriment falls within the classes of victimisation set out s 210(1), it is then presumed that the relevant employee or prospective employee was victimised unless that presumption is rebutted as provided by s 210(2).
The respondents submitted Mr Hornsey is required to prove the causal elements of the alleged reasons for his victimisation. In that regard, he seeks to rely upon the reasons set out under ss 210(1)(a), 210(1)(d) and 210(1)(g). It follows that Mr Hornsey must prove that he was victimised because:

he was a member of the Union;
he sought to exercise functions conferred under the Act; and
he participated, or proposed to participate, in proceedings relating to an industrial matter.

In the event Mr Hornsey proves the existence of a complaint(s) under the classes of victimisation envisaged under ss 210(1)(a), 210(1)(d) and 210(1)(g) has caused him detriment, the legislative scheme presumes that he has been victimised. In the face of the presumption in s 210(2), the onus then falls on the employer or industrial organisation to show that the "alleged matter" was not "a substantial and operative cause of the detrimental action". The respondents consider that in this particular matter, that presumption has been rebutted.

Consideration

An application for relief from alleged victimisation is made under Chapter 5, Part 1 of the Act. Sections 210 and 213 relevantly provide:

210 Freedom from victimisation 1. An employer or industrial organisation must not victimise an employee or prospective employee because the person: 1. is or was a member or an official of an industrial organisation of employees or otherwise an elected representative of employees, or 2. does not belong to an industrial organisation of employees, or holds a certificate of conscientious objection to becoming a member of such an industrial organisation, or 3. refuses to engage in industrial action, or 4. exercises functions conferred under this Act, or 5. claims a benefit to which the person is entitled under the industrial relations legislation or an industrial instrument, or 6. informs any person of an alleged breach by an employer of the industrial relations legislation or of an industrial instrument, or 7. participates, or proposes to participate, in proceedings relating to an industrial matter, or 8. engages in, or proposes to engage in, any public or political activity (unless it interferes with the performance of the employee's duties), or 9. informs any person of an alleged breach of the Protection of the Environment Operations Act 1997 by an employer, or (ia) informs any person or body of, or gives evidence in relation to, a notifiable occurrence within the meaning of the Rail Safety National Law (NSW), or (ib) reports a matter relating to the safety or reliability of railway, bus or ferry operations to the Chief Investigator (within the meaning of theTransport Administration Act 1988) or a member of staff employed in the Transport Service, or (ic) informs any person or body of, or gives evidence in relation to, a breach or alleged breach of theDangerous Goods (Road and Rail Transport) Act 2008or the regulations under that Act (or a provision of a law of another State or Territory that corresponds to that Act or those regulations), or 1. makes a complaint about a workplace matter that the person considers is not safe or a risk to health, or exercises functions under Part 5 (Consultation, representation and participation) of theWork Health and Safety Act 2011, or 2. assists the Independent Pricing and Regulatory Tribunal or Scheme Administrator in the exercise of its functions under theElectricity Supply Act 1995. 1. In any proceedings under section 213 to enforce the provisions of this section, it is presumed that an employee or prospective employee who suffers any detriment as a result of action by the employer or industrial organisation was victimised because of a matter referred to in subsection (1) that is alleged by the applicant to be the cause of the detrimental action. That presumption is rebutted if the employer or industrial organisation satisfies the Commission that the alleged matter was not a substantial and operative cause of the detrimental action.

213 Enforcement 1. The Commission may, by order, enforce the provisions of this Part on the application of an industrial organisation or by any person affected by a contravention of this Part. 2. The Commission may, in particular, for that purpose do any one or more of the following: 1. order the reinstatement or re-employment of an employee, 2. order the employer to promote or otherwise advance an employee in his or her employment, 3. order the employer to pay an employee or prospective employee the whole or any part of the amount of remuneration or other financial benefits lost or foregone, 4. order the employer to employ a prospective employee, 5. order the employer not to carry out a threat to victimise an employee or not to make any further such threat, 6. order an industrial organisation (or its officials or employees) to take any particular action or to cease any particular activity, 7. make consequential orders (including orders concerning continuity of service). 1. An application for an order under this section must be made within 21 days after the contravention concerned. 2. The Commission may accept an application that is made out of time if the Commission considers there is sufficient reason to do so, having regard in particular to: 1. the reason for, and the length of, the delay in making the application, and 2. any hardship that may be caused to the applicant or other party if the application is or is not rejected, and 3. the conduct in relation to which the order is sought.

Was Mr Hornsey victimised?

The word "victimise" is not defined in the Act. In Public Service Association of New South Wales v Teterycz [1997] NSWIRComm 159, the Full Bench considered the meaning of the term "victimisation" adopting the reasoning in Graham Davis v Amalgamated Television Services Pty Ltd [1998] NSWIRComm 289. The Full Bench stated: …the word "victimise" in s 210 should be construed on a basis which corresponds with the meanings of the word "victim" where last appearing in the definition of that word, namely, "one who suffers some injury, hardship or loss, is badly treated or taken advantage of or the like". The word "victimise" is defined, inter alia, as "to make a victim of; to cause to suffer discomfort, inconvenience, etc"; and where used in s 210 should therefore be interpreted as "cause an employee to suffer some injury, hardship or loss or otherwise treat the employee harshly, unfairly or to his disadvantage in or in relation to his/her employment".
Section 210 of the Act provides that once an employee or prospective employee has demonstrated detriment as a result of an action by an employer or industrial organisation and the alleged cause of that detriment falls within the classes of victimisation set out in s 210(1) of the Act, it is then presumed that the relevant employee or prospective employee was victimised unless that presumption is rebutted by the employer or industrial organisation as provided by s 210(2).
In this matter, Mr Hornsey relies upon the reasons set out under ss 210(1)(a), 210(1)(d) and 210(1)(g) to support the proposition that he was victimised by Barnetts Couriers:

S 210(1)(a)

He was a member of an industrial organisation of employees.

S 210(1)(d)

He exercises functions conferred under this Act.

S 210(1)(g)

He participated in proceedings related to an industrial matter.

The onus falls upon Barnetts Couriers to show that the matters relied upon by Mr Hornsey concerning the alleged conduct was not "a substantial and operative cause of the detrimental action."
In Twentieth Superpace Nominees Pty Ltd (t/a Specialised Container Transport) and Transport Workers' Union of New South Wales (on behalf of Steve Purdy) [2006] NSWIRComm 218, the Full Bench observed at [43]: …we consider that the terms of s 210(2) are clear: once an employee or prospective employee has demonstrated detriment as a result of an action by an employer or industrial organisation and the alleged cause of that detriment falls within the classes of victimisation in s 210(1), then it is presumed that employee or prospective employee was victimised. The employee will be required to prove the elements of the alleged reason for victimisation being the elements of one or more of the paragraphs in s 210(1) (for example, an applicant under s 210(1)(j) will need to prove the existence of a complaint about a workplace matter concerning safety for the purposes of that sub-section). In the face of the presumption in s 210(2), the onus is then on the employer or industrial organisation to show that the "alleged matter" was not "a substantial and operative cause of the detrimental action".
The legislative scheme provides that Barnetts Couriers has taken action against Mr Hornsey for the reasons alleged unless it proves otherwise on the balance of probabilities. Accordingly, to rebut the presumption, Barnetts Couriers is required to provide evidence against it.
Direct evidence from the "decision-maker", being Mr R Barnett, which if it is accepted by the Commission as reliable, is capable of discharging that burden. It must therefore follow that the Commission must give consideration to the intent and purpose of the decision-maker's conduct at that time together with an assessment of the credibility of such testimony.
In this matter, Mr R Barnett gave consistent evidence that Mr Hornsey's contract had not been terminated nor had he been victimised. Despite vigorous cross-examination, Mr R Barnett did not resile from his evidence in chief. Mr R Barnett is quite an elderly gentleman and was not enjoying the best of health when he gave evidence. He was slow to respond on a number of occasions and having regard to his demeanour at that time, I have formed the view that he had some difficulty interpreting the questions put to him. However, once he understood the form of question, he did, in my view, respond credibly.
I also consider Mr Hornsey's evidence was consistent with his evidence in chief. Throughout cross-examination he did not resile from the fact that he considered and believed "an arrangement" was in place whereby the ownership of the vehicle would be transferred to him after it had been paid for. In my view, Mr Hornsey was fixated by the fact that he considered at the time of the alleged victimisation that the vehicle was rightfully his. Upon consideration of all of Mr Hornsey's evidence, I find that he genuinely considered the ownership of the vehicle should have been transferred to him in or around the time of the alleged victimisation despite there being no written agreement supporting that proposition. Both Mr R Barnett and Mr Hornsey gave their evidence in an open and candid manner.
Against that backdrop, I do not consider the Union's attack on the credibility of Mr R Barnett's evidence can be sustained. Ms Woodward's evidence that an administrative error had resulted in the non-collection of the motor vehicle usage fees over two periods was not seriously challenged. I accept her explanation.
In Barclay, the High Court observed that it would ordinarily be difficult for an employer who has taken adverse action to discharge the onus of proof in s 361 of the Fair Work Act 2009 without calling direct evidence from the decision-maker as to his or her reasons particularly bearing in mind the onus lies with the employer to show that it did not take adverse action for a prohibited reason.
It follows from Barclay that the onus of proving that an employee's union position and activity was not an operative factor taking adverse action is to be discharged on the balance of probabilities in the light of all the established evidence. Applying Barclay to this matter, Barnetts Couriers direct testimony must satisfy the Commission that on the civil balance of probabilities, its conduct "was not a substantial and operative cause of the detrimental action".
Having considered all the evidence before the Commission, I have formed the view that Barnetts Couriers has, on the civil standard of proof, satisfactorily rebutted the presumption contained in s 210(2) of the Act that Mr Hornsey was victimised as alleged for reasons that he was a member of the Union, sought to exercise functions conferred under the Act or participated in proceedings in relation to an industrial matter. The conduct of Barnetts Couriers, however described, was not a substantial and operative cause of Mr Hornsey's inability to continue working.
There is absolutely no documentary evidence before the Commission, including the relevant Bailment Agreement with Line Haul to either suggest or afford a right to Mr Hornsey that vehicle ownership shall be transferred to him "after the vehicle has been paid off." Rather, the decision by Barnetts Couriers and/or Line Haul to transfer ownership of a courier driver's vehicle is discretionary. The evidence before the Commission was that a number of courier drivers had been given their vehicles at the discretion of Barnetts Couriers and/or Line Haul. It would be unusual in my view for any company to hand vehicle ownership over to a driver if it was not roadworthy.
In cross-examination, Mr Hornsey agreed that it was his obligation to have required repairs undertaken to his vehicle. He further agreed that it was possible to affect the required repairs and make his vehicle roadworthy without the registration papers conferring ownership to him.
In stark contrast, the evidence of Mr R Barnett was that Mr Hornsey would have been given the registration papers for the vehicle if the repairs had been made to make it roadworthy. The counter evidence mounted by Mr Hornsey was that he was not responsible for ensuring the vehicle was roadworthy and capable of re-registration when required in or around 27 March 2014. In the absence of a roadworthy vehicle and the lack of a relief vehicle because, on the evidence of Mr K Barnett, two additional drivers were using such vehicles, Mr Hornsey was unable to pick up and deliver freight for Barnetts Couriers on and from 27 March 2014. That in my view was a circumstance created by Mr Hornsey himself and not Barnetts Couriers. In that regard, I accept the evidence of Mr R Barnett which shortly stated that without a vehicle, Mr Hornsey was unable to accept work with Barnetts Couriers. In any event, the evidence also reveals that Mr Hornsey did not raise the issue of a relief vehicle with Line Haul, the entity that supplied him with a vehicle in return for payment of a motor vehicle usage fee.
Further, the correspondence sent to Mr Hornsey in May 2014 and set out under Attachment "E" to Mr T Barnett's Statement confirms:

Mr Hornsey was in possession of the vehicle between 28 March and on or about 20 May 2014;
Mr Hornsey had been unable to perform work for Barnetts Couriers since 28 March 2014 because he did not have a roadworthy and registered vehicle; and
there was a without prejudice agreement in place at the time between Barnetts Couriers and/or Line Haul or both to transfer ownership to him subject to it being made roadworthy - a proposition that in my view extinguishes any suggestion that Mr Hornsey was victimised as alleged.

I also accept, in the absence of evidence to the contrary, the direct evidence of Mr R Barnett that he was unaware that the Union had filed a dispute notification with the Commission on 27 March 2014 until he was advised of same by his solicitors the following day.
I also accept that the procedure for vehicle maintenance and registration was, as described by Mr R Barnett - that the relevant driver writes the vehicle registration number on a white-board and the vehicle is inspected on the weekend. I also accept Mr R Barnett's evidence that in the case of major repairs, he or Mr Leening would organise a relief vehicle - which on 28 March 2014 was not available due to the recruitment of two additional drivers.
In the circumstances of expecting the vehicle to be transferred to him as a discretionary rather than contractual benefit, it was reasonable for Mr Hornsey to be required to pay for the repairs directly, rather than having the cost of those repairs deducted from his earnings, as was the case for a vehicle subject to a bailment agreement. In that regard, in the event Mr Hornsey was given ownership of the vehicle, he would be free to sell that vehicle or work for another entity.
The application pursuant to s 210 of the Act filed by the Union on behalf of Mr Hornsey is dismissed on the grounds it has failed to make out a case that on the balance of probabilities the conduct of Barnetts Couriers victimised Mr Hornsey as alleged and that conduct was a substantial and operative cause of Mr Hornsey's circumstances on and from 28 March 2014.

Was Mr Hornsey's Contract of Carriage terminated by Barnetts Couriers, Line Haul and Barnetts Factoring - the respondents?

Mr Hornsey alleges that his contract of carriage was summarily terminated by Mr R Barnett on 27 March 2014 when he allegedly told Mr Hornsey: "I have no vehicle for you to use, I have no work for you to do. You have no job here anymore."
Section 314 of the Act relevantly provides:

314 Functions and powers vested in commission by other jurisdictions 1. The commission may perform the functions and exercise the powers conferred on it under - 1. the Commonwealth Act; or 2. another enactment of a jurisdiction other than Queensland declared for this section under a regulation. 1. A decision of the commission under authority conferred by subsection (1) is not a decision made by it under this Act.

The jurisdiction of the Commission is enlivened under s 314 if and only if, Mr Hornsey's contract of carriage was, on the balance of probabilities terminated as a result of Mr R Barnett's statement to Mr Hornsey on the afternoon of 27 March 2014.
Against the backdrop of all the evidence pressed in this matter, it is my finding that the primary reason Mr Hornsey was unable to pursue work with Barnetts Couriers on 28 March 2014 was due to the fact that he had failed to ensure his vehicle was in a roadworthy condition. The argument that he was dismissed by Mr R Barnett following his return to the Fairy Meadow depot on 27 March 2014 lacks credibility when compared to the factual situation whereby Mr Hornsey was in possession of the vehicle from on or about 28 March to 20 May 2014. He was required to make the vehicle roadworthy in order to have it registered so that he could continue courier work with Barnetts Couriers if indeed he wished to continue working with that organisation. If the contract was terminated, it would be highly unlikely that the vehicle would remain in Mr Hornsey's possession.
The Commission notes that the Franchise Agreement applicable to Barnetts Couriers drivers can only be terminated by the franchisor with written notice.
Regrettably, a relief vehicle was not available to Mr Hornsey on 28 March 2014 for reasons previously explained. However, given Mr Hornsey's fixation on the fact that he considered the vehicle "was his" at that time and his repeated failure to undertake the required repairs, the material before the Commission does not support the proposition that Mr Hornsey had an intention to repair the vehicle without being afforded ownership.
On the material before the Commission, it was not, as the Union alleged, beyond doubt, that relief or spare vehicles were available at all times in circumstances where a particular driver's vehicle was off the road and subject to repairs. There was, on the evidence before the Commission, sufficient time afforded to Mr Hornsey to repairs. There was, on the evidence before the Commission, sufficient time afforded to Mr Hornsey to repair his vehicle before the expiry of its registration. Moreover, Mr Johnson's statement that Mr R Barnett and Mr T Barnett determined matters concerning vehicle ownership is consistent in my view with their roles and responsibilities to Barnetts Couriers and Line Haul respectively.
Mr Hornsey's ultimate decision to return the vehicle on or about 20 May 2014 and his "go fuck yourself" notation on the relevant "receipt" is supportive of the proposition that Mr Hornsey himself brought his contract of carriage to an end at that time.
Accordingly, I find there was no termination of Mr Hornsey's contract of carriage at the initiative of Barnetts Couriers, Line Haul or Barnetts Factoring. Accordingly, the application under s 314 of the Act must fail. The application is dismissed.
I note that the respondents have submitted that Mr Hornsey did not seek reinstatement and as such, the application should be dismissed for want of prosecution. Given my finding above, I am not required to consider that proposition. 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: 01 December 2015

[1998] NSWIRComm 289

[1997] NSWIRComm 159

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