Brian Moore v LE Stewart Investments Pty Ltd t-as Southern Highlands Taxi Service

Income Tax Assessment Act 1936 (Cth) LEGISLATION CITED: Industrial Arbitration Act 1940 Industrial Relations Act 1996 Passenger Transport (Taxi-Cab Services) Regulation 2001

Agius v Arrow Freightways Pty Ltd [1965] AR (NSW) 77 Angyal and Others v Industrial Relations Commission of New South Wales and Others (2005) 145 IR 56 Bowman v Ricegrowers Ltd (formerly Ricegrowers' Co-operative Ltd) (2007) 167 IR 325 Cherry v Allied Express Transport (1997) 73 IR 305 Davies & Anor v General Transport Development Pty Ltd & Ors [1967] AR (NSW) 371 Commissioner of Taxation v De Luxe Red and Yellow Cabs Co-operative (Trading) Society Ltd and Others (1998) 82 FCR 507 Ex parte V.G. Haulage Services Pty Ltd and Another; Re The Industrial Relations Commission of New South Wales and Another [1972] 2 NSWLR 81 Fish v Solution 6 Holdings Limited (2006) 225 CLR 180 Hardinge v Gert Schidor Design Pty Ltd (No 2) (2005) 142 IR 222 Kwik-Fit (G.B.) Ltd v Lineham [1992] ICR 183 Lavings v Barclay Mowlem Construction (NSW) Ltd (1994) 99 IR 247 Manni v Scully and Another [1967] AR (NSW) 606 CASES CITED: Payne v Foxboro L&N Pty Ltd and Another (1998) 81 IR 404 Production Spray Painting & Panel Beating Pty Ltd and Others v Newnham and Others (1991) 27 NSWLR 644 Ronan v University of Wollongong (1984) 9 IR 1 Ross v GN Comtext (Australia) Pty Limited (2000) 107 IR 1 Sheffield v Brambles Australia Limited and Another (2002) 112 IR 369 Solution 6 Holdings Ltd and Others v Industrial Relations Commission of New South Wales and Others (2004) 60 NSWLR 558 Sovereign House Security Services Ltd v Savage [1989] IRLR 115 Stevenson v Barham (1977) 136 CLR 190 Stocks & Parkes Investments Pty Ltd v The Minister [1971] 1 NSWLR 932 Sydney Water Corporation Ltd and Another v Industrial Relations Commission of NSW and Another (2004) 61 NSWLR 661 Sylvan Buildings Pty Ltd v AG&S Building Systems Pty Ltd and Another [2007] NSWIRComm 4 United Dominions Corporation Limited v Brian Proprietary Limited and Others (1985) 157 CLR 1 Vincenzo Paparo v Moree Plains Shire Council [2005] NSWIRComm 4 Yim v Industrial Relations Commission of NSW (2007) 162 IR 62

HEARING DATES: 6/11/2008, 7/11/2008, 19/02/2009, 20/02/2009, 29/07/2009

APPLICANT: Mr M Gibian of counsel Turner Freeman (Ms M Walsh) LEGAL REPRESENTATIVES: RESPONDENT: Ms L Clegg B. Bilinsky & Co Solicitors (Mr B Bilinsky)

Brian Moore v LE Stewart Investments Pty Ltd t/as Southern Highlands Taxi Service

Application under section 106 of the Industrial Relations Act 1996

1 The present proceedings are brought by the applicant under s 106 of the Industrial Relations Act 1996. In the amended summons for relief, the applicant seeks orders declaring that the contract or arrangement whereby he performed work for the respondent was unfair or, in the alternative, that the contract was unfair, harsh or unconscionable or against the public interest. Orders are also sought declaring the contract void, or varying it in whole, or in part. The evidence 2 The applicant was a licensed taxi driver who obtained his taxi licence in 1993. At that time he commenced working for a business described as Wingecarribee and Berrima Cabs. In October 1999, the respondent purchased this business. The applicant continued working as a taxi driver for the respondent. Lawrence Edward Stewart was the managing director of the respondent. 3 The respondent operated a taxi service, as well as mini-coaches, a hire car service and a retail motor workshop. The business operated 19 taxi cabs licensed within the Wingecarribee shire, two mini-coaches and one hire car. It employed 13 persons and 50 drivers contracted to it under bailment agreements. 4 On 5 November 1999, the applicant entered into a written agreement with the respondent. The agreement was entitled "Conditions of Contract of Bailment for Drivers of Taxi-Cabs".

5 The applicant in his first affidavit sworn on 14 December 2007 said his hours of work and remuneration remained the same after he commenced working for the respondent. He said he earned an average of $960.00 gross per week, or approximately $50,000 per annum. According to Mr Stewart, after the respondent purchased the business, the income of most of the drivers increased dramatically. In an affidavit in reply, the applicant agreed with this statement, however he attributed the increase in income to his performing additional hours of work. 6 The applicant also said he worked for the respondent under a roster system. The respondent issued a roster seven days in advance and the applicant's roster, which was unchanged, he said, during the period of the engagement, was as follows: Monday to Wednesday - 3am to 4pm; Thursday and Friday - 5am to 5pm or 6pm; Saturday - 4pm to 7am. 7 Mr Stewart said that the applicant's roster changed from time to time by agreement with the applicant. According to Mr Stewart, the applicant often exceeded safe hours of work, a matter which he had raised with the applicant on many occasions. Notices were often issued to the applicant to reduce his hours of work. The applicant, Mr Stewart said, insisted on driving the hours he did, and the hours he worked were never at the insistence of the respondent. In his reply affidavit, the applicant said he recalled only three changes to the roster and on each occasion the changes were made without consultation with him. He also denied that he worked a level of hours which could be considered unsafe. He recalls this subject being raised with him about two to three times. He said that the respondent's operations manager, William Gordon Turner, had suggested to him that he should finish earlier but that Mr Turner at no time told him that his hours would be changed. He said from time to time Mr Turner would ask him to work additional hours. He did not recall being issued with a written notice to reduce his hours. 8 The agreement contained no provisions dealing expressly with the roster system. Clause 24 however imposed various restrictions upon failing to comply with the roster system. Clause 24 headed "Failure to report for duty" provided: If a bailee fails to attend to take a taxi-cab on bailment at a time previously rostered or agreed to and fails to report to the bailor at least two hours prior to such time his/her inability to attend, the bailor shall not after the expiry of 30 minutes from the agreed commencement time of the rostered shift be under any obligation to keep a taxi-cab available for the bailee for the rostered shift. If within a further 24 hours the bailee fails to provide the bailor satisfactory reasons for his/her failure to attend at the rostered time, or further fails to attend as rostered or agreed it may be reasonably assumed by the bailor that the bailee has abandoned this agreement and the bailor may terminate the bailment contract forthwith and without notice. 9 Clause 3 of the agreement set out the bailee's remuneration. It provided: The bailee shall be entitled to a rate of 40% of chargeable fares or other conditions not less favourable. The bailee shall pay to the bailor immediately upon the conclusion of each shift all chargeable fares earned during the course of that shift less 40% to be retained by the bailee. "Chargeable fares" means all revenue earned by reason of the bailee's use of a taxi-cab including (without limiting the generality thereof) fares for multiple hirings, non-passenger hirings, contract hirings and baggage fees but excluding any gratuities. 10 The applicant said that there were two methods of charging for fares. Under the first method, the fare was charged to the passenger according to the amount recorded on the taxi meter. Under the second method, the respondent allocated a job to the driver and informed the driver of the fare quoted to the customer. The driver collected the quoted fare from the customer at the conclusion of the journey. Mr Stewart, in his affidavit, explained that drivers retained 100 per cent of all tips. Both parties agreed that the driver was paid 40 per cent of the total fares collected for each shift and the respondent the remaining 60 per cent. The respondent was paid its percentage by the driver out of the total takings for each shift. 11 On 18 April 2005, the applicant wrote to Peta Seaton, Member for Southern Highlands, regarding concerns he held over aspects of the respondent's operations. One of his concerns was that the respondent was overcharging some of its customers, namely, government departments. On 27 April 2005, the applicant was informed that Ms Seaton had made representations to the NSW Ombudsman on his behalf. The NSW Ombudsman's office referred the complaint to the Ministry of Transport which conducted a preliminary investigation. The investigation into the respondent's operations disclosed that the respondent was generally complying with its network accreditation standards. Matters addressed by the Ministry included vehicle, driver and complaint handling, and security and radio communications. The Ministry of Transport also directed that a full network audit be carried out by the end of July 2005. Based on the information received by the Ministry of Transport, the NSW Ombudsman's Office recommended that no further action be taken. The Member for Southern Highlands was notified of the recommendation. 12 On 27 January 2006, there was a derailment on the NSW rail network at Picton. The applicant was rostered on for work that day. He received instructions from the respondent's operational manager, Bill Turner, to drive to Moss Vale railway station in order to be on "stand-by" at a rate of $88.00 per hour. The applicant said he arrived at the railway station at about 9.45am. Shortly after he said Mr Turner contacted him and issued the following instruction: ... can you go over to Kennelworth at Bowral and pick up the shoppers, it's a quoted fare of $40.10. Car 24 if the railway come looking for Brian just say he's gone to get a sandwich or something. 13 The applicant picked up the shoppers. After that, he was instructed by Mr Turner to take another passenger from Coles to Kiama Street in Bowral. He received a further instruction to collect a passenger from Oxley Hill Road and proceed to Bowral. His taxi became vacant at 10.55am. He radioed Mr Turner who instructed him to return to Moss Vale railway station. While there, at approximately 11.30am, he said Mr Turner again contacted him and informed him that he was no longer required to be on "stand-by". Mr Turner, the applicant said, told him to charge "the railways" $264.00. According to the applicant, Mr Turner also said, "I am putting the four vehicles on one Cabcharge. Put in a yellow docket to balance your books." The applicant did so. In his affidavit, the applicant said the effect of this latter instruction was that the respondent had charged RailCorp for time when he was not on "stand-by". 14 In cross-examination, the applicant said that his taxi was charged out at $88.00 per hour to be on "stand-by" at Moss Vale railway station. He confirmed that he claimed 40 per cent of the total amount earned, that is, 40 per cent of $264.00, representing three hours on "stand-by" at $88.00 per hour. He also confirmed that he did not wait at the railway station for that period of time but took three other jobs as instructed to by Mr Turner. He did not, he said, deduct from the $264.00 the money he had earned from doing the three jobs, while ostensibly on "stand-by". His explanation for not doing this was that Mr Turner had told him to claim the full amount rather than the reduced amount which would have properly reflected the time he was on "stand-by". He also said he later wrote down the full amount in his daily worksheet and that he did not say anything about the matter to Mr Turner. 15 Mr Turner agreed generally with the applicant's account that he instructed the applicant to attend Moss Vale railway station in order to be on "stand-by". He agreed that the hourly rate was $88.00. He also agreed that he instructed the applicant to take three jobs while he was on "stand-by". He said that when the applicant had finished those other jobs he told him to return to the railway station, "in case they look for you". Mr Turner explained that when the drivers were no longer required to be on "stand-by", he asked them to call their hours in, but that they were only supposed to charge for the actual waiting time. He relied, he said, on the information given to him by the drivers and he would have given them the price relevant to those hours. He described the radio room from where he operated as "bedlam", with hundreds of telephone calls being taken. He could not therefore have known how long the applicant, for example, stayed at the railway station. Instead, he relied on the drivers to inform him. 16 According to Mr Stewart, he first became aware that RailCorp had been overcharged for the period the applicant was on "stand-by" at Moss Vale railway station when he saw a television programme in which the allegation was made. He said he immediately examined the respondent's records which included the applicant's record for 27 January 2006 (a daily running sheet). He also said he checked the amounts and ascertained that the applicant had in fact taken other jobs during the period that he was instructed to be on "stand-by". The daily running sheet completed by drivers, Mr Stewart explained, was not an accounting record but was required to be retained by the respondent for purposes connected with police work. The work sheet, also called a "pay-in sheet", which was also completed by drivers on a daily basis was supposed to contain an aggregation of the fares earned, or daily takings of the driver. Both documents were generally handed in by the drivers at the same time, and were supposed to be checked by the allocator (Mr Turner's role). 17 On 3 April 2006, the respondent wrote to the applicant informing him that its records had revealed that on 27 January 2006 he had claimed an amount to which he was not entitled. The amount was based on what the applicant had charged for being on "stand-by" at Moss Vale railway station ($264.00 for three hours) plus the three jobs he had taken during that time, for which he had also claimed. The amount in question was $61.60. 18 The applicant, who by this time was on workers compensation, initially refused to reply to the letter. Later he attended the respondent's office and refunded the money. 19 On 17 February 2006, the applicant said he was instructed to attend Figtree Private Hospital (near Wollongong) to collect a passenger travelling to Moss Vale. He drove to the hospital by the most direct route, near Macquarie Pass. Upon arrival, he discovered that the person, a patient at the hospital, could not be discharged. When he returned he said Mr Turner said to him, "you went the short way, you should have gone the long way". He said Mr Turner then proceeded to fill out the docket for the Department of Veterans' Affairs and charged Veterans' Affairs for the longer route. 20 The applicant's version of events was disputed by the respondent. According to Mr Stewart, drivers are instructed to avoid Macquarie Pass whenever travelling to Figtree Private Hospital to collect passengers for return to Moss Vale. The charge, he said, to the passenger is, however, the same irrespective of which route is taken. The fare is fixed and not calculated by the number of kilometres. For the Department of Veterans' Affairs (which is charged by the respondent for patients collected from Figtree Private Hospital) the rate is fixed, regardless of the route taken. 21 The respondent tendered a Services Agreement between it and the Department of Veterans' Affairs. The agreement confirmed that the rate for passengers travelling between the Southern Highlands north of Moss Vale and Wollongong was a set rate as opposed to a rate based on the number of kilometres travelled. The applicant informed the Court that it was not challenged that the subject fare was a fixed rate. It was contended however, that Mr Turner had told the applicant what to charge. A running sheet completed by the applicant for that day revealed that the applicant journeyed from Moss Vale to Figtree Private Hospital at 10.15am and charged $168.00 for the journey. The Court was not initially advised of the fixed rate amount for the trip as agreed between the respondent and Veterans' Affairs (the actual amount having been blanked out on the agreement for confidentiality purposes). Mr Turner denied telling the applicant that he should have taken the longer route (or charged for the longer route). He revealed, however, that the set rate for the trip from the Southern Highlands to Figtree was $185.00, that is, some $17.00 more than the actual amount charged by the applicant. 22 The applicant's reliance on the events of 17 January 2006 at Moss Vale railway station and the incident concerning the applicant's journey from Moss Vale to Figtree Private Hospital was confined, the Court was informed, to background material relevant to the circumstances of the applicant's termination. The respondent's reliance on both matters was limited to what was said to be relevant to the applicant's overall credibility. These matters will be addressed later in this judgment. 23 After the applicant returned from Figtree Private Hospital on 17 February 2006, he said he had the following discussion with Mr Turner: Mr Turner: Obviously you don't want to do early starts anymore. Applicant: Why? Mr Turner: I notice you are highlighting jobs on your running sheet like you don't want to do it. Applicant: It's got nothing to do with it. 24 In his affidavit, the applicant said that he had adopted a practice of highlighting jobs on the running sheets because he had a number of concerns about those particular jobs. One of those concerns was that customers had been overcharged by the respondent and the purpose of the highlighting was to bring those occasions to the attention of the respondent. 25 According to the applicant, Mr Turner also said to him: I want you to cut back to three shifts a week or start at 7am. 26 The applicant replied that he would have to think about it. He said Mr Turner responded: I have to know now. 27 Following the discussion, the applicant said he went to his car to retrieve his pay which he handed to Mr Turner. At the time, he said Mr Stewart was talking to Mr Turner. The applicant asked to see Mr Stewart in his office. There he told Mr Stewart that he was not happy to be taken off early shifts or with the other drivers knowing about his shifts before he did. According to the applicant, Mr Stewart said to him: Bill is upset because you're highlighting things on the running sheet, I would be too. 28 The applicant said he replied: That is there to bring your attention to things that need looking at. 29 Mr Stewart replied: I think you should apologise to Bill. 30 The applicant then left Mr Stewart's office, handing him his keys to the taxi. He said it was his usual practice to leave the keys at the office on the Friday afternoon (17 February 2006 being a Friday) because another driver would use the taxi on Friday night and Saturday mornings. Before leaving the depot, the applicant said he spoke to Mr Turner, saying: Laurie told me to apologise to you so I'll apologise to you but I don't see why I should. 31 The applicant said he was very upset about the events of 17 February and consulted his family doctor. His doctor issued him with a WorkCover certificate certifying him unfit for work for two weeks. The applicant was also prescribed anti-depressant medication. He forwarded the certificate to the respondent by facsimile that same afternoon and completed a workers compensation form. He remained on workers compensation until 11 July 2006. He was certified as fit to return to work on 1 July 2006. 32 Mr Stewart gave a different account of the events of 17 February 2006 following the applicant's return from Figtree Private Hospital. He said that at about 11am, the applicant entered his office and threw his pay down on the desk saying, "That's it, I am going". Mr Stewart asked him, "What are you on about?", to which he said the applicant responded, "Bill wants to pull me off early morning starts". Mr Stewart then said to the applicant, "You know we have been onto you about your hours for the last six years. You don't want to work early mornings". Mr Stewart explained that his last comment was directed at the highlighting the applicant had been doing on his running sheets, specifically to demonstrate the small amount of work available and attendant negligible earnings between the hours of 3am and 7am. He said the applicant replied, "I want to work early mornings". Mr Stewart then said, "Why do you do it to yourself, working all those crazy hours?" He said the applicant then started complaining about Mr Turner. Mr Stewart told the applicant that he should apologise to Mr Turner and get on with his work. The applicant said, "I've had it." Mr Stewart said he replied, "If you want to go, go." The applicant then walked out. Mr Stewart confirmed that he received a doctor's certificate from the applicant later that afternoon. 33 According to Mr Turner's version of events, the applicant had been highlighting jobs on his running sheets for early morning shifts. He would also write comments such as "no work" or "one job" in order to highlight how little he was earning for the morning shifts. The purpose of the highlighting, Mr Turner said, had nothing to do with any concerns held by the applicant of overcharging. He confirmed that he said to the applicant on one occasion that he was doing too many early shifts. At that time he said the applicant was working six shifts on Monday to Friday and on Saturday evening. He told the applicant, "I am going to have you start three shifts at 7am rather than 3am or 5am". He said to the applicant, "Choose a day where you will not come in at 5am". He said the applicant did not reply but stormed out of Mr Turner's office. Later, after the applicant spoke to Mr Stewart in his office, Mr Turner said the applicant returned and said to him, "Fuck you, there's my apology" and then left the building. 34 There was further contact between the applicant and Mr Stewart after 17 February 2006. The events of that day, as well as the subsequent contact, are relevant to an issue between the parties as to whether the applicant resigned on 17 February 2006 or his services were terminated by the respondent at a later time. The issue will be explored in this judgment at a later stage. Jurisdiction 35 At issue during the proceedings was whether the applicant performed work for himself and did not relevantly perform work for the respondent. The only contract under consideration is the bailment agreement. It was contended by the respondent that the work done by the applicant must be done "directly" under that agreement. The nature of a bailment agreement was said to be that of a joint venture: Commissioner of Taxation v De Luxe Red and Yellow Cabs Co-operative (Trading) Society Ltd and Others (1998) 82 FCR 507. In oral submissions, the respondent added in support of the argument that the applicant leased his car from the respondent and there was a sharing of the profits. 36 The evidence relied upon by the respondent in support of the contention included the following: a) the applicant ran his own business, submitted his own taxation records, had no entitlement to annual leave or other statutory (entitlements); b) although bounded by a roster as to when he could use the taxi, the applicant determined his own hours (the respondent was constantly asking him to reduce his hours to comply with OH&S standards, but the applicant often insisted on starting early morning and finishing late, frequently being 'called in' at the end of the shift). This demonstrates significant control over the manner, method and the amount of work he performed; c) the applicant had complete control over how he worked and full discretion as to whether to accept a job; d) no term of the bailment agreement refers to work or obliged the applicant to perform work; e) the bailment agreement was directed to permitting the applicant to use the taxi cab belonging to the respondent to "ply for trade" and to make his income in his own way during the times which he "bailed" the taxi. 37 The applicant sought to counter the respondent's contentions with a number of propositions. First, it was said that a contract of bailment does not of itself take it outside the Court's unfair contracts jurisdiction: Hardinge v Gert Schidor Design Pty Ltd (No 2) (2005) 142 IR 222 at [27]. Secondly, it was said that the impugned agreement led plainly to the performance of work, in that its whole purpose was the facilitation and control of the performance of work by the applicant for the respondent: Stevenson v Barham (1977) 136 CLR 190 at 201; Production Spray Painting & Panel Beating Pty Ltd and Others v Newnham and Others (1991) 27 NSWLR 644. According to the applicant, the agreement both envisaged the performance of work and had a very considerable impact upon the performance of work: Solution 6 Holdings Ltd and Others v Industrial Relations Commission of New South Wales and Others (2004) 60 NSWLR 558. The applicant relied in particular on various clauses of the bailment agreement which disclosed that the agreement governed the performance of work by the applicant in a very detailed manner. 38 I propose to address each of the contentions made by the parties, but before doing so it is convenient in my view to re-visit some of the authorities on the issue. 39 One of the most recent High Court authorities on the issue is Fish v Solution 6 Holdings Limited (2006) 225 CLR 180. In Sylvan Buildings Pty Ltd v AG&S Building Systems Pty Ltd and Another [2007] NSWIRComm 4, I made a number of observations concerning the judgment in Fish which I adopt as part of my analysis of the impugned bailment agreement presently under consideration: [29] In Fish the impugned contract was a share purchase agreement under which Nisha Nominees Pty Ltd had agreed to sell its shares in Fish Tech and Partners Pty Ltd to Solution 6 Holdings Ltd for $19million. Nicholas Terence Fish, who was a party to the impugned agreement, made a separate agreement with a subsidiary of Solution 6 Holdings by which it was agreed he would be employed as "Executive Manager Enterprise Integration Services". It was a term of the impugned agreement that Nisha could sell its shares if Mr Fish's employment was terminated, otherwise than for cause or by him. In November 2001 following the completion of the impugned agreement and after a substantial fall in the share price Mr Fish was made redundant and his employment was terminated. [30] The majority in Fish addressed the central question in the appeal which was whether the impugned agreement was a "contract whereby a person performs work in any industry". The "proper approach" to the question was outlined in the following four paragraphs:

[17] The central question in this appeal, and in the two other appeals heard at the same time, is whether the contract which the applicants in the Commission sought to have declared wholly or partly void, or sought to have varied, was a "contract whereby a person performs work in any industry". In this and in the other appeals, other questions arise but before identifying those other questions, it is as well to begin by identifying what, uninstructed by any of the decisions on the construction of s 106 or its legislative predecessors, is the proper approach to determining its application to particular facts and circumstances.

[18] The Act is concerned with matters industrial. The power given to the Commission by s 106(1) to declare wholly or partly void or to vary certain contracts should be understood as hinged about the reference to performance of work in any industry. The first inquiry required by s 106(1) is whether a person "performs work in any industry". What may be declared wholly or partly void or varied is any "contract" whereby a person performs that work.

[19] Because "contract" is given the extended definition that has been noted earlier, it must be understood as extending to any arrangement or related condition or collateral arrangement of the requisite kind, namely, a contract or arrangement whereby a person performs work in any industry. But what must be identified is the set of arrangements (leaving aside, for the moment, whether those arrangements are or may be contractual or otherwise) according to which (that is, "whereby") a person performs the relevant work. What may be declared void or varied is any part of those arrangements: the arrangements in accordance with which a person performs work.

[20] It is to invite error to begin by identifying what contracts or arrangements are related one to another. It invites error because it suggests that it is appropriate then to ask whether any of that interlocking set of arrangements made provision for the performance of work in an industry, and to treat any and every aspect of the interlocking arrangements that have been identified as amenable to the powers given to the Commission under s 106. And that is the way in which much of the argument advanced on behalf of those parties who were applicants in the Commission proceeded. [31] What emerges from the above extract is that in considering whether a contract alleged to be unfair under s 106 is one whereby a person performs work in any industry, the first step is to enquire whether a person performs work in any industry. The second step is to identify the contract as understood in its extended sense under s 105 according to which a person performs work. The third step, provided the requisite preconditions are satisfied (that is the contract whereby work is performed is found to be unfair and is amenable to orders for relief), is to avoid or vary any part of the contract (or arrangements) in accordance with which a person performs work: see also Wirraway (NSW) Pty Ltd and Anor v Ultra Tune Australia Pty Ltd [2006] NSWIRComm 300 at [42]. 40 In Fish, two contracts were under consideration, the share purchase agreement and the employment contract entered into by Mr Fish. The original proceedings brought under s 106 in the Commission in Court Session (as it then was) sought orders only in relation to the Share Purchase Agreement, not in relation to the employment contract. The latter contract was a contract whereby work was performed. The former was held not to constitute either in whole or as to its particular provisions, a contract whereby work was performed: Fish at [43]. 41 Reference should also be made to certain observations in the majority judgment in Fish (Gleeson CJ, Gummow, Hayne, Callinan and Crennan JJ) concerning the use of the word "directly" as an adjunct to the requirement that an impugned contract must be one "whereby a person performs work in any industry". The word, described as a gloss on the section by the majority in Fish, was used as part of the description of a contract as one whereby work is performed by Mason and Jacobs JJ in Stevenson v Barham (1977) 136 CLR 190. On that issue, the majority in Fish said: [27] On the appeal to this Court in Stevenson v Barham , emphasis appears to have been placed in argument upon a notion of subversion of industrial regulation as marking the limit of the ambit of the Commission's powers to decide that a contract was unfair. The argument was rejected. Rather, the decision in Stevenson v Barham was taken, in subsequent cases, as holding that the relevant jurisdictional fact to be established in the Commission was that "if the contract is one which leads directly to a person working in any industry it has the requisite industrial character - it is a contract `whereby a person performs work in any industry'" (emphasis added). And reference was subsequently made, not infrequently, to the remark of Barwick CJ that "the language of s 88F ... is intractable and must be given effect according to its width and generality". [28] The description of a contract as "one which leads directly to a person working in any industry" is not without its difficulty. What is meant, in this context, by "directly"? As Lord Diplock, giving the advice of the Privy Council in Caltex Oil (Australia) Pty Ltd v Feenan , pointed out, this, and other glosses on the section, must not be permitted to divert argument away from the words of the statute in an attempt to "construe" the words in which judges express their reasons for reaching a conclusion in a particular case. To divert attention in that way is wrong. And even the gloss on the word "whereby" offered in the Caltex Case ("in consequence of which" or "in fulfilment of which"), like the gloss offered earlier in these reasons (according to which), must not be misunderstood as necessarily solving every difficulty that may be presented in seeking to apply the statutory language. [29] What emerges from Stevenson v Barham is the perception of a difficulty in reading the "intractable" language of s 88F in a way that did not give the Commission power to interfere with any and every kind of bargain. Barwick CJ, in Stevenson v Barham , said that: [t]he legislature has apparently left it to the good sense of the ... Commission not to use its extensive discretion to interfere with bargains freely made by a person who was under no constraint or (2006) 225 CLR 180 at 193 inequality, or whose labour was not being oppressively exploited. And the reference, by Mason and Jacobs JJ, to a transaction which "leads directly to a person working in any industry" was evidently intended to mark a limit upon the Commission's jurisdiction. 42 It may be noted that the jurisdiction under s 106 of the Act has never been confined to what may be described as the traditional employment contract. The unfair contract provisions are not specifically directed in terms to an employment relationship. The legislation was initially directed towards contract labourers. The unfair contract provisions when drafted were intended to provide additional protection to deal with certain abuses of the contract system in prescribed trades. A brief historical overview of the legislation serves to illustrate this point. 43 The jurisdiction in relation to unfair contracts was first conferred in 1959 by s 88F of the Industrial Arbitration Act 1940. In the second reading speech for the Industrial Arbitration (Amendment) Bill which introduced s 88F and other related provisions, a brief exchange between Mr Landa, the Minister moving the reading of the amendment bill, and another person (Mr Doig), suggests that taxi drivers, as transport contractors, were intended to fall within the new provisions. The exchange (at pp 2115 and 2116, Hansard, Second Reading Speech, 18 November 1959) was recorded as follows: Mr Landa: Clause 8 contains important amendments to section 88B, relating to the restriction of certain contracts. These provisions are not novel; attempts have been made to deal with this problem on several occasions under the Act. It is proposed to insert new sections to effect a new approach to the problem of contracts by bread vendors, milk vendors, certain transport contractors, painters, carpenters and bricklayers. Mr Doig: And taxi drivers. Mr Landa: They would come under transport contractors. 44 Later in the second reading speech, the new s 88F (and its relationship to s 88B) was specifically addressed (at pp 2129, 2130): New section 88F renders any contract relating to any work in any industry liable to be challenged before the industrial tribunals on the grounds that the contract is unfair; harsh or unconscionable; against the public interest; provides or has provided a total remuneration less than a person performing the work would have received as an employee performing such work; or was designed to or does avoid the provisions of an award or agreement. The opposite of each of those propositions would be a fair defence. These amendments have been found necessary because the restrictions imposed on the contract system in 1957 have not proved adequate to deal with the abuses in the trades already prescribed under section 88B and the additional trades have been prescribed because of the growth of abuse of the contract system, particularly in the building trades. Very many building projects are now constructed almost entirely under the contract system. This system could be tolerated only if award standards were constantly maintained. The abuse of the contract system would lower the standards of wages and working conditions built up over many years of intense union organisation and industrial action. In the event of a recession rival contractors are likely to indulge in cut-throat competition which might be expected quickly to lower existing standards. The Government will watch the operation of these amendments with great vigilance and if abuses continue despite the amendments, consideration will be given to further amending the legislation. Equally, the Government will be on the watch for any harsh or unconscionable effects of the operation of these amendments. 45 Agius v Arrow Freightways Pty Ltd [1965] AR (NSW) 77 was the first case brought under s 88F of the 1940 Act. It concerned the sale of a delivery run business and a Morris Messenger van that went with the business. Beattie J found that under the terms of the contract (which included both written and oral terms) the respondent provided work and the applicant carried out the work. His Honour said it was "immaterial" whether or not the applicant performed the work as an employee or as an independent contractor (at 86). 46 In Davies & Anor v General Transport Development Pty Ltd & Ors [1967] AR (NSW) 371 (which also involved a trucking contract) Sheldon J made the following remarks on the scope and purpose of s 88F (at 373): As this section has received some salutary publicity recently, it seems opportune to sound a cautionary note. It is, of course, obvious that s 88F is not a revolutionary measure in general law reform imposing, in (a), (b), and (c), a form of palm-tree control over the principles developed in the courts of common law and equity and the traditional statutes relating to contracts. If it were, it would be odd to find it hidden in the middle of an Act which is familiar only to a relatively few specialised lawyers. Nor would this Commission (and until recently, even more incongruously, conciliation committees) be appropriate as the sole repository of such sweeping powers. In fact, there is no general charter in s 88F to rescind or vary contracts because they are thought to be oppressive. Its place is in this Act because its basic purpose is industrial. The crucial, and restrictive, words are "whereby a person performs work in any industry". So read, the section is put into focus and is seen to be but one of several in the Act designed to protect the arbitration system against those who enter its allotted field unprepared to pay the standard price of admission - the regulation of wages and conditions of employment by award or industrial agreement. This includes not only those who directly avoid such regulation by chicanery but also some of those who get their work done for them in a way which gives them a business advantage over competitors so bound. Thus, the section invades only one bastion in the citadel of private contract and does so, primarily, not because certain contracts are unjust to individuals but because they are subversive of the orderly control of industry. 47 In Manni v Scully and Another [1967] AR (NSW) 606, it was contended that s 88F was meant to apply only to non-employees such as independent contractors, and that the rights of employees were protected by other provisions in the 1940 Act. Although the point was not decided, Sheehy J made a number of observations to the effect that employees could also avail themselves of the section (at 615): The section itself indicates that it is remedial in intent and if a person is oppressed by a contract coming within its scope it matters little whether he is an employee or not. There may even be a greater reason for the operation of such a law to assist an employee rather than an independent contractor but both classes would seem to me to be equally within the protection that the section affords. It is not to the point to say that an employee might invoke ss 92 and 93 to claim the benefit of an award, because such provisions do not deal with the same subject matter as s 88F, although they may cover the same field in some respects; for example, an employee might be receiving the award wage and yet might still justifiably claim relief under s 88F from some contract or arrangement which is unfair, harsh or unconscionable or against the public interest. 48 It appears it was until 1984 in Ronan v University of Wollongong (1984) 9 IR 1 that s 88F of the 1940 Act was held to apply to individual contracts of employment (at 5 and 8 per Glynn J). 49 The necessary focus under s 106 is whether the applicant performed work in any industry. The focus envisages a broader field of inquiry than one reserved or confined to the traditional contract of employment. According to the majority judgment in Fish, the first step in the inquiry is to ascertain whether the applicant performed work in any industry. The second step (assuming the answer leads to further inquiry) is to identify the contract or arrangement according to which the applicant performed work. 50 Mr Stewart, in his evidence, provided a brief description of how the respondent's business operated. According to him, the respondent owns the taxis and the licences for those taxis. It employs 13 persons and has 50 drivers contracted to it under a bailment agreement. The operation involves 19 taxis licensed within the Wingecarribee Shire, as well as two mini-coaches, one hire car, and a retail workshop. The business operates out of an office with a telephone number and a booking system. All taxi drivers sign a bailment agreement which is a standard agreement under which the bailee (the driver) is entitled to a rate of 40 per cent of chargeable fees. The respondent retains 60 per cent. The respondent works out the roster for the drivers and allocates the jobs to those drivers. Under the agreement the drivers are subject to a number of requirements which include the wearing of uniforms and presenting for work in accordance with the roster system. The allocator runs the radio room from which the jobs are dispatched and sets up the rosters for the shifts, as well as checking the drivers' "pay in" sheets (the daily work sheets). The daily work sheets are filled in by the drivers. In addition, the drivers retain 100 per cent of all tips. According to Mr Stewart, the applicant's roster changed from time to time by agreement between the applicant and the respondent's operations manager (Mr Turner). 51 The applicant worked in the respondent's business on a full-time basis as a taxi driver, operating principally in Moss Vale, Mittagong and Bowral. He worked six shifts per week in accordance with the roster system which he said was issued by the respondent seven days in advance. The applicant said he signed a contract of bailment when he commenced working for the respondent. Independent records disclose that the applicant submitted his own income tax returns in which he claimed deductions for a business which was in his own name. The business activity was described in his income tax returns as a taxi cab service. 52 These matters facilitate a conclusion that the applicant performed work in an industry. What was the contract or arrangement whereby the applicant performed the work? 53 The second step in the inquiry is to identify the contract whereby the applicant performed work as a taxi driver. The only contract under consideration in the present proceedings is the bailment agreement. According to the respondent, that agreement evidences a joint venture between the parties. It was said to follow from this that it was not an agreement whereby the applicant performed work for the respondent. 54 The proposition that the relationship between the parties was akin to a joint venture (and therefore outside the jurisdictional reach of s 106) was based primarily on the Full Federal Court judgment in De Luxe Red and Yellow Cabs. In issue in that judgment was whether the payments made to taxi drivers by the respondent taxi operators fell within the meaning of "salary or wages" under s 221C(1A) of the Income Tax Assessment Act 1936 (Cth) so that the respondents were bound to make a deduction as required by the PAYE provisions. The respondent taxi operators had contended that no relationship of employment existed with the drivers and therefore no liability arose to deduct PAYE tax. According to the respondents, their relationship with the drivers was one of bailment. 55 Before the Full Court, the argument was confined to the position in New South Wales. Three of the respondents operated in New South Wales however the Full Court found it necessary to consider only the position of the first respondent, De Luxe Red and Yellow Cabs (De Luxe). There was no written contract between De Luxe and the drivers. Instead, the position was said to be governed by Chapter 6 of the Industrial Relations Act and the Taxi Industry (Contract Drivers) Determination 1984, as amended, and in force at the time of the proceedings before the Full Court. Under that statutory framework there was a requirement that there be a bailment relationship between the owner of the taxi licence and the driver. 56 The Court's attention in these proceedings was not directed to any specific part of the Full Court judgment. The reliance placed on the judgment by the respondent was confined to a finding in the judgment that the relationship between the parties was in the nature of a joint venture. The analogy sought to be drawn between that finding and the present circumstances was that the relationship between the applicant and the respondent under the bailment agreement was also in the nature of a joint venture. It followed from this, it was said, that the applicant worked for himself, not for the respondent. 57 The bailment relationship in De Luxe Red and Yellow Cabs was governed by the statutory framework in New South Wales. It was characterised by the Full Court as a joint venture (at 522). The issue in the case as noted earlier was whether amounts paid to the taxi drivers by the taxi operator fell within the meaning of "salary or wages" under the Income Tax Assessment Act. The finding that the relationship was one of bailment and not one of employment released the taxi operators of any obligation to deduct payments in accordance with s 221C(1A) of that Act. 58 Under s 106 of the Act, the jurisdictional fact which must be established is that the contract or arrangement which the applicant seeks to void or vary is a "contract whereby (the applicant) performs work in any industry". It is not decisive to the determination of that issue whether the applicant was in an employment relationship or some other relationship such as that of bailment or independent contractor. 59 As to the significance of a joint venture, the term was not defined in De Luxe Red and Yellow Cabs and no definition of the term was forthcoming by the respondent in these proceedings. In Butterworth's Australian Legal Dictionary (Reprint 2003), the term is defined as follows: An association of persons for particular trading, commercial, mining, or other financial undertakings or endeavours with a view to mutual profit. Each participant usually, but not necessarily, contributes money, property or skill. It is not a technical legal term with a settled common law meaning: United Dominions Corp Ltd v Brian Pty Ltd (1985) 157 CLR 1; 60 ALR 741. The association is usually for the participation in a single project rather than a continuing business. Unincorporated joint ventures may be found to be partnerships: (NSW) Partnership Act 1892 s 1; United Dominions Corp Ltd v Brian Pty Ltd (1985) 157 CLR 1; 60 ALR 741. A joint venture may be carried out by way of a partnership, company, trust, agency, joint ownership, or other arrangement. It may include an activity carried on by a body corporate which was formed to carry on the activity by means of joint control or ownership of shares in the body corporate: (CTH) Trade Practices Act 1974 s 4J(a). Whether there is a fiduciary relationship between joint venturers is dependant upon the form which the joint venture takes and the content of the obligations of the parties: United Dominions Corp Ltd v Brian Pty Ltd , above. A fiduciary relationship can arise before the precise terms of any agreement have been settled. 60 In United Dominions Corporation Limited v Brian Proprietary Limited and Others (1985) 157 CLR 1, Dawson J adverted to a distinction in Australian law between a partnership and a joint venture. His Honour said (at 15-16): Perhaps in this country, the important distinction between a partnership and a joint venture is, for practical purposes, the distinction between an association of persons who engage in a common undertaking for profit and an association of those who do so in order to generate a product to be shared among the participants. Enterprises of the latter kind are common enough in the exploration for and exploitation of mineral resources and the feature which is most likely to distinguish them from partnerships is the sharing of product rather than profit. It is, however, unnecessary to pursue that matter here. 61 The definitions suggest an association of persons for the purposes of a particular undertaking or endeavour with a view to mutual profit or with a view to generating a product (such as a mineral resource) which is to be shared among the members of the joint venture. It is difficult to reconcile these definitions with the nature of the relationship between the applicant and the respondent in these proceedings. Under the agreement, the applicant was entitled to 40 per cent of his daily takings. The respondent retained the remaining 60 per cent. The applicant was a taxi driver. The respondent's operations were somewhat more extensive than the provision of licensed taxis, which it owned, to the drivers. It operated other vehicles as well as a retail motor workshop. The method of payment to the driver under the bailment has little in common with a mutual sharing of profits generated by the respondent's operations. The respondent's business did not generate any particular product. The finding in De Luxe Red and Yellow Cabs that the drivers were bailees in a joint venture distinguished the relationship in that case between the taxi operator and the drivers, from that of employment. A finding to that effect in the present proceedings (that is that the relationship was not one of employment) would not, of itself, preclude a finding that the impugned agreement was one whereby work was performed by the applicant in any industry. 62 The respondent also relied on the judgment of Yim v Industrial Relations Commission of NSW (2007) 162 IR 62 in support of this issue. The case is distinguishable on a number of bases. Under consideration in Yim was an agreement between a proprietor of a business and two fellow investors. No remuneration was payable under the contract until the business (which involved importing ginseng) became self-supporting. All profits earned from the import and sale of ginseng products were to be shared equally between the business proprietor and the other two investors. Spigelman CJ (with whom Mason P and Handley AJA agreed) found that the agreement was in the nature of a joint venture and did not deal with the performance of work (except insofar as it made reference to a "wage" which was not payable until the ginseng business was self-supporting): (at [58], [59]). 63 Reliance was also sought to be placed by the respondent on Angyal and Others v Industrial Relations Commission of New South Wales & Others (2005) 145 IR 56 for the proposition that the applicant did not perform work for the respondent at all. Again, this case is distinguishable from the present circumstances. It concerned a set of arrangements between a group of barristers for a company to be incorporated which would take a lease of premises which would then be licensed or sub-leased to the shareholders as chambers in which they could practise their profession. One of the arguments contending for jurisdiction under s 106 of the Act was that the applicant-barrister was performing work in an industry under one or more of the arrangements. The arrangements were documented in the Articles of Association, a shareholders agreement and a user argument. It was found by Handley JA (with whom Hodgson JA and McClellan AJA agreed) that the arrangements between the barristers and the company did not constitute contracts which led directly to the performance of work. Adopting the formulation of Jacobs JA in Ex parte V.G. Haulage Services Pty Ltd and Another; Re The Industrial Commission of New South Wales and Another [1972] 2 NSWLR 81 at 88, Handley JA found that the arrangements in the commercial sense involved the provision of goods and services with a consequent performance of work in an industry. 64 I turn now to consider the bailment agreement between the applicant and the respondent. 65 Clause 1 refers to the intention of the parties that the bailee hire the taxi cab and not acquire any proprietary interest in the vehicle. Clause 2 provides that the bailor "in his sole and absolute discretion" may make available to the bailee "from time to time" a duly registered and licensed taxi cab on the terms and conditions of the bailment agreement. Clause 3 provided for the method of payment. Under that clause, the bailee was entitled to 40 per cent of chargeable fares. Clauses 5 and 6 required the bailee to complete daily work sheets and running sheets at the end of each shift. The driver was required to maintain the taxi cars to a high level of presentation and to maintain a superior standard of customer service (Clause 11). Under Clause 12, the bailee agreed, upon the conclusion of any hiring, to proceed to the nearest designated taxi rank and stand for hire, "unless previously booked or hired or otherwise directed by the bailor or nominated representative". Under Clause 24, if the bailee failed to report for duty the respondent was relieved of its obligation to keep a taxi-cab available for the bailee for his or her rostered shift. If a bailee failed to attend "to take a taxi cab on bailment" for 24 hours then the bailee was taken to have abandoned the agreement with the consequence that the bailor could terminate the agreement without notice. 66 Clause 30 stated that there was no guarantee of work for the period covered by the agreement. The clause also required the bailor "as far as possible" to provide one week's notice of "work rosters". The drivers were to be allocated work on a daily basis "as required by the bailor" under the clause. 67 These provisions, when considered together, suggest that the applicant as a taxi driver constituted part of the respondent's workforce. They suggest that the applicant performed work for the respondent under the agreement and was remunerated for that work under the method of payment prescribed under the agreement. The terms and conditions of the agreement indicate that the applicant was not a free and independent agent plying a taxi for hire and making independent decisions about when and where the work would be performed. The applicant's work was subject to a roster system which was prepared by the respondent seven days in advance. It was not entirely accurate to suggest, as the respondent did, that the applicant determined his own hours, had complete control over how he worked and full discretion as to whether to accept a job. The conversation, as deposed to by Mr Turner, between the applicant and Mr Turner on 17 February 2006 dispels any notion that the applicant was free to choose what hours he worked. According to Mr Turner, he told the applicant, "I am going to have you start three shifts at 7am, rather than 3am or 5am, "choose a day where you will not come in at 5am". 68 The evidence provides numerous examples suggestive of a system between the applicant and the respondent whereby the applicant was subject to the direction of the respondent. The applicant was directed to travel to Figtree Private Hospital to collect a patient on 17 February 2006. On 27 January 2006, the applicant received instructions from Mr Turner to drive to Moss Vale railway station and remain on "stand-by" for a period of time. There was no suggestion on the evidence that the applicant understood he had a discretion as to whether or not he would take either or both jobs. While the applicant was at work he worked in accordance with the roster system prepared by the respondent, although according to Mr Stewart a driver could stipulate the hours in which they chose to perform the work. 69 Nor was there any evidence of a formal leasing arrangement between the parties, a further factor relied upon by the respondent. The agreement contains no reference to a lease or leasing arrangement. The agreement was not in the nature of a joint venture involving a sharing of the profits, for the reasons earlier set out in this judgment. 70 I find therefore that the applicant performed work for the respondent under the bailment agreement. Resignation or termination? 71 A further issue ventilated during the proceedings was whether the applicant resigned on 17 February 2006 following his conversations with Mr Turner and Mr Stewart or his engagement was terminated at some later stage by the respondent. 72 The respondent, in contending for the former, relied upon Mr Stewart's version of events which it was said was corroborated by Rebecca Anne Bradley, an accountant who was employed by the respondent on 17 February. 73 Mr Stewart's earliest account of the events of the day appears in a statement he made on 10 March 2006 which he provided to QBE, the workers compensation insurers. At the stage Mr Stewart provided his statement, the s 106 proceedings initiated by the applicant by way of a summons for relief had not been commenced. The respondent relied on this detail as further corroboration of Mr Stewart's account. 74 The account set out in Mr Stewart's statement of 10 March 2006 has been earlier set out in this judgment. According to Mr Stewart, the applicant entered his office about 11am, threw his pay onto the desk and informed Mr Stewart, "That's it, I am going", and, "I've had it". The reasons forthcoming from the applicant were that Mr Turner intended to prevent the applicant from working early morning starts. Mr Stewart said he told the applicant, "If you want to go, go". He said after saying this the applicant walked out. 75 It is of some significance to the resolution of this issue that nowhere in the statement did Mr Stewart indicate a view that the applicant had resigned as a result of these events. Rather, Mr Stewart said in the statement that he rang the applicant some two to three weeks after 17 February 2006 to ask him how he was and, "what was happening". 76 According to Ms Bradley at about 11am on 17 February 2006 she overhead the applicant shouting from the direction of Mr Stewart's office, "I have had enough, I'm out of here". She said she asked Mr Stewart about the incident shortly after and he told her, "Brian has just resigned". 77 Taking this evidence at its highest it suggests that Mr Stewart at least was under the impression that the applicant had resigned on 17 February 2006. This was not the applicant's intention however. His version of events has been earlier set out and need not be repeated. After leaving the respondent's premises he visited his local doctor and was placed on sick leave. He forwarded the WorkCover certificate to the respondent which was received by it sometime in the afternoon of 17 February 2006. 78 Following the exchange of 17 February 2006, a series of letters was sent by the respondent to the applicant. On 3 April 2006, the respondent wrote to the applicant to inform him that it had become aware that he had overcharged RailCorp on 27 January 2006. A refund of $61.60 was demanded by the respondent. According to the evidence of Mr Stewart, the respondent first became aware of this matter when Mr Stewart saw the television programme in which the allegation was made. He said he immediately instituted a search of the respondent's records and ascertained from the applicant's daily running sheet that the applicant had charged for three hours on "stand-by" while during the same period taking three jobs and charging for those jobs. Moreover, the records indicated that the applicant had been fully remunerated for the three hours on "stand-by", as well as for the three jobs. The point of this material for present purposes is that the respondent said it became aware of it at some undisclosed time after 27 February 2006. Notwithstanding this sequence of events, on 29 May 2006, in a further letter written to the applicant, the respondent wrote: "Actions by you with regard to overcharging RailCorp, together with malicious activity towards this company, leaves us with no alternative but not to consider the further leasing of taxis to you." 79 In my view, this suggests that the respondent did not consider that the applicant had resigned on 17 February 2006. Rather, the discovery that the applicant had overcharged RailCorp on 27 January 2006 (a matter which came to light after 17 February 2006), is what prompted the respondent to terminate the applicant's engagement. Such a step would hardly seem necessary if the respondent was of the view at that time, or at some earlier point in time, that the applicant had resigned. An alternative construction may be however that the respondent considered that the applicant had in fact resigned, but because of the discovery, it intended to convey to the applicant that it would not re-engage his services. 80 Accepting this alternative construction, and adopting the respondent's version of events on 17 February 2006, for the purposes of the argument, the question of whether the applicant did in fact resign remains to be determined. In order to assist in the resolution of this issue, resort may be had to some relevant authorities. 81 First, there was no unambiguous statement of resignation on the evidence. The words "That's it, I am going" and "I've had it" do not, of themselves, provide evidence of an unambiguous intention to resign. The applicant's act in throwing down his pay on Mr Stewart's desk does not give rise to a contrary indication. The applicant was required to hand over to the respondent 60 per cent of his daily takings. At the same time, the applicant, according to Mr Stewart, also threw the taxi keys onto the desk. This action cannot be accorded any particular significance in relation to whether the applicant resigned. The operative date, being 17 February 2006, was a Friday. The applicant said it was his usual practice to leave the keys at the respondent's office on Friday afternoon so that another driver could use the taxi cab on Friday nights and Saturday mornings. 82 In Sovereign House Security Services Ltd v Savage [1989] IRLR 115 (at [7]), the following observations were made on the issue of when resignation may be said to have occurred: […] generally speaking, where unambiguous words of resignation are used by an employee to the employer direct or by an intermediary, and are so understood by the employer, the proper conclusion of fact is that the employee has in truth resigned. In my view tribunals should not be astute to find otherwise. However, in some cases there may be something in the context of the exchange between the employer and the employee or, in the circumstances of the employee him or herself, to entitle the Tribunal of fact to conclude that notwithstanding the appearances there was no real resignation despite what it might appear to be at first sight. 83 In Cherry v Allied Express Transport (1997) 73 IR 305, Peterson J found that a heated exchange between an employee and a representative of the employer during which the employee told the representative he could "stick it" did not amount to a resignation or notice of termination of the relevant contract on the part of the employer. During the course of reasons, Peterson J referred to comments of Wood J in Kwik-Fit (G.B.) Ltd v Lineham [1992] ICR 183 at 188 where Wood J referred to a number of factors relevant to the assessment of whether or not a person's words or actions may be said to constitute a resignation: If words of resignation are unambiguous then prima facie an employer is entitled to treat them as such, but in the field of employment personalities constitute an important consideration. Words may be spoken or actions expressed in temper or in the heat of the moment or under extreme pressure ("being jostled into a decision") and indeed the intellectual make-up of an employee may be relevant: see Barclay v City of Glasgow District Council [1983] IRLR 313. These we refer to as "special circumstances". Where "special circumstances" arise it may be unreasonable for an employer to assume a resignation and to accept it forthwith. A reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further inquiry is desirable to see whether the resignation was really intended and can properly be assumed, then such inquiry is ignored at the employer's risk. He runs the risk that ultimately evidence may be forthcoming which indicates that in the "special circumstances" the intention to resign was not the correct interpretation when the facts are judged objectively. 84 In the present circumstances, the applicant, on 17 February 2006, was clearly upset at the prospect of his early morning shift work being cut off. The words attributed to him by Mr Stewart were therefore spoken at a time when the applicant was distressed. He was diagnosed later that day as suffering from depression and stress. The applicant provided a medical certificate which certified him as unfit for work for two weeks to the respondent that same afternoon. His action in providing the certificate does not suggest that the applicant had intended to resign. 85 The applicant continued to provide medical certificates to the respondent. During this same period the respondent wrote to the applicant on a number of occasions, yet in none of that correspondence did the respondent indicate that in its view the applicant had resigned. It was not until the letter of 29 May 2006 that this view was clearly exposed by the respondent, when it informed the applicant that, "you terminated all future work with this company on 17 February 2006". The actions of the respondent up until the letter of 29 May 2006 were therefore inconsistent with the contention that the applicant resigned on 17 February 2006. There can be little doubt based on the applicant's actions in providing a number of medical certificates to the respondent from 17 February 2006 that he did not consider he had resigned on that day. 86 These matters in combination compel the conclusion that the applicant did not resign on 17 February 2006. Equally, they facilitate the conclusion that the respondent terminated the applicant's engagement by letter of 29 May 2006.

Whether the bailment agreement was unfair 87 The applicant, in his amended summons, alleged that the bailment agreement was unfair, harsh, unconscionable and contrary to the public interest on a number of grounds principally directed to issues arising out of the circumstances of the applicant's termination including the failure of the agreement to contain reasonable provisions with respect to sufficient notice and the failure of the agreement to make provision for fair and appropriate procedures in the event of termination at the instigation of the respondent. In oral submissions the applicant relied in particular on what was said to be a failure of the agreement to provide any protection against arbitrary termination, instead conferring an absolute discretion on the respondent to cease to provide work at any time. In written submissions it was also contended that the contract may be unfair because it failed to ensure that a fair process was undertaken prior to an employee being dismissed on performance, conduct or redundancy grounds. It was further contended that because the bailment agreement could be cancelled at any time with no notice and for no reason, or the respondent could simply cease allocating work to the applicant at any time, that these matters also combined to make the agreement unfair. 88 The agreement was also said to be unfair because it was not entered in circumstances where it could be said to have been freely negotiated between the parties having a reasonable equality of bargaining power. The evidence in support of this contention was said to be that upon acquiring the business the respondent required all drivers it had decided to retain to sign the same contract. Drivers were required to sign the new contract as a condition of maintaining their prior work. It was fanciful to suggest, according to the applicant, that there was any opportunity for a person in the position of the applicant to freely negotiate the terms of the contract. 89 I propose to deal first with the last mentioned contention. Whether there was unequal bargaining power

90 The evidence with regard to the circumstances under which the applicant came to sign the agreement was inconclusive. According to the applicant he was required to enter into a new bailment agreement with the respondent. He did not recall the precise circumstances under which he signed the agreement. He said that to the best of his recollection the drivers were told to sign the agreement by the operations manager who was "probably" Tom Middlemass. He also said that he was not given a copy. He "believed" however that the terms and conditions of the agreement were similar to the terms and conditions he had with the previous owners of the respondent's business. After the business was taken over by the respondent the applicant said that his terms of work and remuneration remained the same. 91 This last statement was contradicted by the applicant in his affidavit in reply when he commented that his income in fact increased dramatically after the respondent took over the business and he attributed the increase in income to performing additional hours of work. The applicant also said in his affidavit in reply, contrary to his earlier evidence, that he did receive a copy of the agreement although it was an unsigned copy. 92 Mr Stewart, in his affidavit, said that there was no written agreement between the previous owners of the business and the drivers. Records were almost non-existent and the prior arrangements under which the drivers drove taxis were vague and uncertain. Upon acquiring the business Mr Stewart said the respondent offered new bailment agreements to most of the drivers who had "worked for" the previous owner. He denied that any driver was forced or coerced in any way to sign any document, including the bailment agreement. He doubted that the applicant was not given a copy of the agreement when it was executed. It was, he said, the practice of the respondent to ensure that each driver was given a copy of the agreement. If the applicant had lost his copy Mr Stewart said the respondent would have given him another copy immediately. 93 On this issue, I prefer the evidence of Mr Stewart. The applicant was clearly mistaken in his initial statement that his hours of work and remuneration remained the same while working for the respondent. The applicant's evidence as to the precise circumstances under which he came to sign the agreement was otherwise inconclusive. There was no evidence which might give rise to the contrary suggestion that the applicant was in some way precluded from obtaining a copy of the agreement at the time he signed it or at some later time. Although the applicant said in his first affidavit that he was not provided with a copy of the agreement, he contradicted that evidence in his affidavit in reply stating that he had been provided with a copy although it was unsigned. Mr Stewart also denied that the drivers were required to sign the agreements. The applicant provided no explanation for his assertion that he and other drivers were required to sign them or why they were required to sign them. This evidence, taken as a whole, is not sufficient to sustain an inference that at the time the applicant signed the bailment agreement he was in a position of unequal bargaining power such that the terms and conditions of the agreement could not be said to have been freely negotiated between the parties. Whether the applicant's termination was unfair 94 The applicant's principal complaint was that the bailment agreement was unfair because it did not provide protection against arbitrary termination and its provisions permitted the respondent to cancel it at any time, for any reason and without any notice. 95 I have found, for reasons earlier expressed, that the respondent terminated the applicant's engagements by letter of 29 May 2006. In that letter, the respondent wrote: I have received today by fax a note from Dr Flynn stating that you will not be fit for work until 1 July, 06 which does not concern us as clearly you terminated all future work with this company on 17 February, 06. I confirm that at approximately 11.00 am on 17 February, 06 you threw your "pay-in" & taxi keys on my desk with words to the effect "That's it, I am going". You then loudly verbalised over perceived wrong doings by Bill Turner at which time I said words to the effect "I have had enough of your continual complaining, if you wish to go then go" at which time you stormed out of my office. This clearly constitutes you terminating all future shifts. Actions by you with regard to overcharging RailCorp together with malicious activity towards this company leaves us with no alternative but not to consider the further leasing of taxis to you. 96 The letter followed earlier letters written by the respondent of 3, 13 and 26 April 2006, all of which dealt with the alleged overcharging of RailCorp by the applicant in the sum of $61.60. None of those earlier letters had mentioned the subject of termination, either by the applicant or by the respondent. The letter of 29 May relied on the alleged overcharging as the ground upon which the respondent notified the applicant of its decision "not to consider the further leasing of taxis to you". 97 If the respondent relied on this ground as constituting misconduct on the applicant's part justifying his termination (which was not expressly stated) it was not in my view sufficiently supported by the evidence. 98 Proper consideration of this issue requires the Court to deal first, in brief, with the applicant's allegation that the respondent overcharged its clients. 99 The evidence indicated that the relationship between the applicant and Mr Turner had been difficult for a lengthy period of time. According to Mr Stewart, the applicant had frequently made complaints to him about Mr Turner over a period of several years. Mr Stewart regarded the complaints as either "trivial in the extreme" or "bordering on the bizarre". 100 The applicant in his first affidavit said that he highlighted certain jobs on the running sheets because he wished to bring to the respondent's attention matters that concerned him, "such as when the customer had been overcharged by the respondent". According to Mr Turner the applicant was highlighting the jobs for an entirely different purpose indicative of an intention to bring to the respondent's attention that he was earning very little on morning shifts (3am to 5am). Some of the applicant's original running sheets for the period between 11 January and 10 February 2006 were tendered by the respondent in order to illustrate this point. Some of the documents in turn contained highlighting. The applicant in his evidence did not identify any particular running sheets which contained highlighted jobs, except for the running sheet dated 27 January 2006. He conceded in his affidavit in reply however that he wrote comments on some of the sheets such as "no work" and "one job". He said he also highlighted other jobs such as jobs out of town or when he had had a good morning. With regard to the running sheets for 27 January 2006 he said he highlighted entries because he believed that there had been an overcharging. 101 The applicant did not tender any original running sheets. Those original running sheets tendered by the respondent confirmed Mr Turner's account (later conceded by the applicant) that the applicant highlighted jobs in order to illustrate that on some mornings he earned little or negligible earnings. The applicant's allegation that the respondent was overcharging was therefore supported by only one running sheet, which was a copy of the running sheet completed by him on 27 January 2006. 102 I should add for completeness that at the end of the proceedings the applicant tendered two volumes of work sheets and running sheets all of which were copies. My attention was not directed to any particular running sheet (or work sheet) except, of course, the running sheet dated 27 January 2006 of which there appear to be at least three copies included in the volumes. The remaining running sheets do not appear for the most part to contain any highlighting although it is a little difficult to tell given that they are copies. Perhaps half a dozen of those sheets appear to contain some highlighting although the entries without further explanation do not of themselves suggest that the purpose of the highlighting was to provide some evidence that the respondent had indulged in overcharging its clients. The applicant's allegation of overcharging by the respondent by reference to running sheets, other than the running sheet of 27 January 2006, therefore lacked foundation. 103 With regard to the running sheet of 27 January 2006, it does not, in my view, provide sufficient evidence upon which to sustain a reasonable inference that the respondent on that day overcharged RailCorp. It was the responsibility of the applicant to fill out the relevant details on the running sheet. He submitted the document, said nothing to Mr Turner and retained 40 per cent of his total takings for that day. This was in accordance with the usual arrangement between the drivers and the respondent. The applicant's actions on the one hand in making the allegation against the respondent, but on the other hand retaining for himself a percentage of the proceeds said to have been obtained through overcharging, presents a difficulty in establishing the allegation. Mr Turner, who described the radio room from where he operated as "bedlam", said he relied on the drivers to call in their hours. He could not have known how long the applicant had taken to complete the three jobs taken by the applicant while he was on "stand-by" at the railway station. 104 Returning to the respondent's allegation that the applicant overcharged RailCorp on 27 January 2006, I have earlier indicated that the respondent's allegation is not sufficiently supported by the evidence. According to the applicant he was directed to charge the full amount by the respondent while on "stand-by". He did not respond to the respondent's series of letters in April 2006 in which the respondent demanded a refund of $61.60 however he said he was unfit for work and suffering from stress and depression. There can be little doubt that the applicant was suffering from stress and depression during this period. The WorkCover certificates confirm this to have been the case. On 30 June 2006 the applicant did forward a cheque in the sum of $61.60 to the respondent for the purpose of reimbursing RailCorp. 105 The applicant's actions in forwarding the refund did not, in my view, amount to an admission by him that he overcharged RailCorp. As the running sheet of 27 January 2006 demonstrates there was no attempt by the applicant to conceal the fact that RailCorp had been overcharged. Instead the applicant appeared to believe, without any reasonable basis for the belief, that the respondent was responsible for the overcharging. That was why the applicant took the step of highlighting the subject entries. Moreover, it was Mr Turner's responsibility to check the daily work sheets as well as the running sheets, according to Mr Stewart. This in turn suggests that the applicant had no intention of concealing the fact that he had charged RailCorp for the three hours on "stand by" while at the same time charging for three other jobs. In addition, the applicant was never asked by the respondent for an explanation for his alleged overcharging. The respondent simply demanded a receipt. This evidence provides no sufficient foundation upon which it may be concluded that the applicant overcharged RailCorp on 27 January 2006. The respondent's allegation therefore could not have provided any reasonable justification for terminating the applicant's engagement. 106 The letter of 29 May 2006 does not in terms refer to any of the provisions of the bailment agreement dealing with termination. The applicant relied on Clauses 29 and 30 of the bailment agreement as conferring an absolute discretion upon the respondent to terminate the agreement. The clauses were said to be unfair on their face, as well as unfair in the manner in which they operated in practice. 107 Clauses 29 and 30 of the bailment agreement provided: 29 CANCELLATION BY BAILOR OR BAILEE The bailee or bailor reserves the right to cancel the bailment contract at any time without notice or giving any reason. 30 GUARANTEE OF WORK During the period covered by this bailment agreement there is no guarantee of work. Bailee drivers shall be allocated work on a daily basis as required by the bailor. The bailor shall, as far as possible, provide one week's notice of work rosters, however, in exceptional circumstances, less notice of work may be necessary. 108 Clause 30 is not in its terms unfair in my view. There is nothing inherently unfair about a term of a contract that provides there is no guarantee of work. The term simply recognises commercial realities. According to the applicant, Clause 30 is capable of visiting unfairness on a bailee because it is open, on its face, for the bailor to simply cease providing work. This is not how I construe the provision. It provides for the allocation of work under the roster system subject to "exceptional circumstances" where less notice of work may be necessary. For the clause to operate properly, or as it is intended, "exceptional circumstances" must be present in order to justify a lesser period of notice, with regard to the hours to be worked, at any particular time. Whatever exceptional circumstances might be (perhaps a temporary downturn in the work is an example of what is contemplated) the provision does not "on its face" permit a bailor to cease providing work on some arbitrary basis or for no adequate reason. 109 This leaves Clause 29, which reserves to a bailor (and a bailee) the right to cancel the agreement "at any time without notice or giving any reason". 110 In Lavings v Barclay Mowlem Construction (NSW) Ltd (1994) 99 IR 247, one of the cases relied upon by the applicant to support the proposition, the impugned contract provided for termination of employment, "effected by either party on the basis of one month's notice in writing of the intended termination". Hill J made no finding that this term was unfair at the time it was made. Rather, his Honour found, having regard to its operation in practice and the manner in which the term was applied, that it was unfair (at 235, 254). The circumstances under which Mr Lavings's employment came to be terminated were that his position was made redundant without notice. The only explanation given for the redundancy was that the respondent was experiencing "some problems" which necessitated "some changes in the staff". 111 In Ross v GN Comtext (Australia) Pty Limited (2000) 107 IR 1, a further authority relied upon by the applicant, Mr Ross was transferred from a related overseas corporate entity to work for the respondent as its Business Development Manager. After working in that capacity for several months, Mr Ross was informed by letter that he had been made redundant, effective immediately. The explanation provided to Mr Ross in the letter was the respondent's "poor financial position". Mr Ross received one month's basis salary and an ex gratia payment of an extra month's base salary. Walton J, Vice-President, found the payment inadequate when tested against standards of fairness (at 12). His Honour, in making the finding, took into account the period of time during which Mr Ross had been employed by other corporate entities related to the respondent, referred to collectively as the "Comtext Group". 112 In Sheffield v Brambles Australia Limited and Another (2002) 112 IR 369, which was also relied upon by the applicant in support of the proposition, Mr Sheffield's employment was terminated following his refusal to accept redeployment "to any position" within the respondent's corporate structure. Peterson J found that the contract operated unfairly in the circumstances of the applicant's termination in that Mr Sheffield had worked for the respondent for 12 years in a managerial role and the parties were unable to agree on a reasonable period of notice with the result that Mr Sheffield was left with only minimal benefits on termination (at [45]). 113 The applicant also relied on Vincenzo Paparo v Moree Plains Shire Council [2005] NSWIRComm 4. Mr Paparo's employment with the respondent was terminated following a resolution initiated by the respondent as a result of workplace reforms proposed by Mr Paparo which a number of councillors had regarded as controversial. Mr Paparo was paid three months salary in lieu of notice in accordance with the provisions of his contract. The issue before Haylen J was whether Mr Paparo's termination under the contract "for any reason" was unfair because the contract provided for the payment of a maximum of three months' salary (at [95]). 114 Bowman v Ricegrowers Ltd (formerly Ricegrowers' Co-operative Ltd) (2007) 167 IR 325 was also relied upon by the applicant. Mr Bowman's employment was terminated. The contract provided that it was of indefinite duration terminable on the giving of one month's notice. The Full Bench found that one month's notice was unfair in the circumstances. 115 The effect of the foregoing authorities is that terms and conditions of contracts of employment have been found to be unfair, or to have operated unfairly in the circumstances of termination, by reason of the failure of the contracts to make provision for notice, or adequate notice. 116 Returning to the present circumstances, the applicant's engagement was terminated by the respondent in circumstances where the allegation of overcharging made against him by the respondent was not made out on the evidence. There was therefore, no reasonable basis, nor any proper explanation forthcoming, for the termination of his engagement by the respondent. His engagement was also terminated in circumstances where the applicant had been on sick leave for some months suffering from stress and depression. The applicant had worked for the respondent for over six years. There were no performance issues with respect to the standard of his work. If anything, the respondent regarded the applicant as working excessive hours. There was no impediment to the applicant's returning to work on 1 July 2006 apart from the difficult relationship with Mr Turner which had been ongoing for some years. In evidence, Mr Stewart said he regarded the applicant as a friend, but that on 17 February 2006 he felt relieved and pleased to be rid of the tension between the applicant and Mr Turner. He also said in his evidence, "I must admit I had a sigh of relief when it was all over because I thought this continual nonsense is finished, because it was also getting me down". Mr Stewart's sense of relief at what he thought was the applicant's departure cannot have provided a sufficient justification for the respondent's later conduct in terminating the applicant's engagement without cause, without any proper explanation, and without notice. 117 Section 106(2) of the Act provides that the Court may find the impugned contract was unfair at the time it was entered into or that it subsequently became unfair because of any conduct of the parties, any variation of the contract or any other reason. In commenting on the provision Mason P (Hodgson and McColl JJA concurring) in Sydney Water Corporation Ltd and Another v Industrial Relations Commission of NSW and Another (2004) 61 NSWLR 66 said (formal parts omitted): [25] Section 106(2) states in the plainest of terms that a contract may become unfair, so as to attract the jurisdiction of the Commission, because of post-contract conduct of the parties. But it is the "contract" that is to be held unfair, and not the conduct, in the final analysis. Unfairness may of course stem from what the contract fails to provide, for example as regards termination procedures. [26] The Commission may examine not merely the terms of the contract (or arrangement) as originally negotiated, but also the manner in which it has ultimately "worked out and operates as between the parties to it". 118 Adopting this approach in the present proceedings I find that Clause 29 of the bailment agreement was unfair in its terms and was utilised unfairly by the respondent against the applicant at the time it terminated his engagement. Clause 29 failed to make proper provision for notice of termination. It also failed to make proper provision for fair and appropriate procedures in the event of termination. In the result the applicant's termination was effected without cause, without any proper explanation and without notice. 119 Before leaving the issue I should deal with one further matter raised by the respondent. It was contended by the respondent that the amended summons did not specifically address Clauses 29 and 30 of the bailment agreement. It was also said that Clause 30 would not be voided by the Court, "having regard to the nature of the bailment agreement and the taxi industry generally". With regard to this latter point the respondent did not adduce any evidence or provide any relevant material dealing with the nature of the taxi industry. Without such material the Court is unable to consider the issue and any possible impact it may have had on findings made in these proceedings. With regard to the former point it is only necessary to consider Clause 29. The clause was not expressly referred to in the amended summons however the provisions in the bailment agreement with regard to termination were the subject of numerous references in the amended summons. The applicant alleged in the amended summons that the bailment agreement was unfair because it failed to contain any reasonable provisions allowing for a severance payment on termination and it failed to ensure that sufficient notice was provided to him in the event of termination. The agreement was also alleged to be unfair on the ground that it failed to make provision for fair and appropriate procedures in the event that the respondent proposed to terminate the agreement. These allegations, on any reasonable analysis, can only have been directed to Clause 29 which purported to give to the bailor the right to cancel the agreement, "at any time without notice or by giving any reason". Given these matters, the fact that the applicant did not, in his amended summons, expressly refer to the operative provision on termination (being Clause 29) would not preclude the Court from directing its attention to that provision. TARA payments

120 The applicant contended in written submissions that the contract was unfair to the extent that it failed to ensure that the applicant was provided with benefits promised by the respondent and that in the result he was treated differently from other drivers with respect to TARA payments. The applicant estimated that the amount of lost payments was approximately $9,900. According to the applicant the contract should be varied to include an entitlement to TARA payments and an order made for the payment of the amount sought, by way of compensation in connection with the unfairness. 121 "TARA" stands for "Taxi and Radio Assimilation". It was a system initiated by the respondent as an incentive payment to drivers for their benefit. It was a device used when the respondent's office was unattended for facilitating telephone calls to be diverted to the radio of one particular driver known as the "TARA captain". This occurred during morning shifts generally from about 3am until 7am. On 11 July 2000, the respondent sent a letter to all its drivers and radio operators informing them of the method of payment under the system. It advised: As the payment we make to drivers of $10.00 for a TARA shift is actually payment for a service it is necessary that you add GST to it in the future. Accordingly, please submit with your pay in a Tax Invoice for $11.00 made out on the tax Invoice business card which is available in each taxi & be sure that you include your ABN number. The payment of the $11.00 should be deducted from you pay in & retained by you together with your normal 40% retention. Please also note on your Work Sheet the payment to you of $11.00. 122 The applicant claimed that he regularly performed the role of TARA Captain. He said he submitted invoices to the respondent in accordance with its directions but that the respondent refused to pay him his TARA expenses, although other drivers were paid. 123 Mr Stewart disputed the applicant's account. He said that the applicant received every TARA payment to which he was entitled. In oral evidence Mr Stewart said the driver had to claim the payment on his work sheet in order to receive it. According to Mr Turner the drivers wrote down the amount but paid themselves. He denied telling the applicant that he was not entitled to the payments. 124 The applicant's claim with regard to TARA payments, in my view, suffers from a number deficiencies. 125 First it was not part of his bailment agreement. It was a system initiated by the respondent for the benefit of drivers at some stage after the applicant had signed the agreement. Secondly, the amended summons does not allege either specifically or generally that "the contract" (either the bailment agreement or some wider unidentified arrangement) was unfair because it failed to ensure that the applicant was provided with the benefit when other drivers (also unidentified) obtained the benefit. Thirdly the applicant in oral evidence said that he went to "great lengths to go through my running sheets to get that figure", (a reference to the $9,900 claimed by him for unpaid TARA payments). The applicant, however, failed to produce any documents to substantiate his claim. After the applicant's cross-examination an application was made on his behalf for the "running sheets" to be produced by the respondent. The respondent produced a number of work sheets and running sheets. Upon receipt of the documents, the applicant did not direct the Court to any particular work sheet or running sheet which might have tended to confirm his evidence that the records would show, because he had checked them, his entitlement to $9,900 in TARA payments. I perused the records produced by the respondent and can see no evidence of any such entitlement. Most of the records between 2002 and 2005 were missing. According to Mr Stewart, the respondent sold a taxi plate to Bill Bunt who then chose to do the early morning shift during 2002 until 2005, that is Mr Bunt was the nominated TARA Captain for that period. Mr Stewart also said that the applicant worked "virtually no early morning starts" during that same period. Although most of the remaining records which were produced might suggest that the applicant commenced work at 3am, many of them have not recorded the applicant's actual commencement time. The state of these records is such that the Court is unable to achieve any reliable estimate of TARA payments, or of the applicant's entitlement (if any) to those payments. 126 In my view, the respondent's evidence on the issue must be preferred. The system was set up for the benefit of drivers. Given that circumstance, no reasonable explanation has been advanced by the applicant as to why he would be told he was not entitled to claim the payment if in fact he had been the nominated TARA Captain for the period he claimed. Mr Stewart said that for a period of three years, Bill Bunt was the nominated TARA captain, and the applicant worked "virtually" no early morning shifts during that period. For reasons not explained the applicant did not produce records for the period although he claimed to have checked all the records. Moreover the applicant submitted a tax invoice and claimed a TARA payment on a work sheet for 3 January 2005. This was in accordance with the system for claiming TARA payments set out in the respondent's letter of 11 July 2000. The applicant in his affidavit said that he submitted tax invoices for the TARA payments in accordance with the respondent's direction, but payment was refused. None of those invoices which might have confirmed that evidence were produced by the applicant. It was also not explained why the applicant was successfully able to claim a TARA payment in January 2005 but had been refused payments on earlier occasions. These matters, in particular the absence of records to which the applicant said he had access at some stage, preclude the Court from making any finding that "the contract" visited any unfairness upon the applicant by failing to ensure he received TARA payments to which he was otherwise entitled. Uniforms

127 In the amended summons the applicant alleged that "the contract" was unfair because: It failed to make provision for an effective mechanism to ensure that the respondent complied with its obligations under the contract and clause 28 of the Passenger Transport (Taxi-cab Services) Regulation 2001 to provide uniforms for the applicant to use in the course of his work. 128 Clause 14 of the agreement dealt with the provision and wearing of a uniform by drivers working for the respondent. It provided: The bailor shall provide and the bailee shall wear at all times when driving the taxi-cab an approved uniform. The bailee shall not vary the uniform by the addition or deletion of any item. 129 Clause 28 of the Passenger Transport (Taxi-cab Services) Regulation 2001 (the 2001 Regulation) (which both parties agreed was the relevant provision) provided: The operator of a taxi-cab that is connected to a taxi-cab network must provide approved network uniforms for the use of the persons who drive the taxi-cab for hire. Maximum penalty: 10 penalty units. 130 According to the applicant the respondent refused to provide him or other drivers with a uniform. He was required to purchase his own uniform. He said he incurred expenses of $1996.00 between the years 2000 and 2006 purchasing components of the uniform. The amended summons claimed a reimbursement for uniform expenses in that amount. Mr Stewart, in his affidavit, said that the respondent was never required to provide uniforms free of charge to any drivers. He said the respondent referred the drivers to its suppliers of uniforms but that the terms of the agreement did not require it to meet the cost of the uniforms. The respondent, Mr Stewart said, provided the colours for the epaulettes and the logo for the jacket free of charge and its supplier provided the uniforms to the drivers at a discount price. 131 Shortly after the respondent acquired the business it sent a memorandum dated 11 January 2000 to all drivers and radio operators with regard to uniform requirements and their supply. In the memorandum the drivers and radio operators were informed: The new uniform which must be worn at all times by drivers & radio/base operators whilst working is listed below & the prices shown are those required to be paid by you. These prices are subsidised & are very keen & when compared with prices charged by Sydney Taxi Networks they are significantly less. Drivers who have been with the business for some time & who have the old Berrima District Cabs shirts will receive an initial supply of the new Southern Highlands Taxi shirts & epaulettes free of charge. Future replacement shirts, pullovers, jackets, trousers, epaulettes, caps & ties are at your cost. The peak cap & epaulettes are available from this office & all other items from Workwear in Moss Vale where you will be required to pay direct. The initial supply of shirts will be made from this office. To further assist drivers who have been with the business for some time we will subsidise the cost of the pullover for six weeks from today only & the subsidy is $20.00 per pullover. Shoes are to be supplied by you & must be of full upper construction in either black or brown (preferably black) & definitely not sandshoes or runners. No variation to this uniform will be permitted, i.e. jackets & hats which are not part of the uniform must not be worn. This is a Department of Transport policy requirement. New drivers commencing after todays date will not be subsidised & they will be required to provide their uniform within one month of commencement. 132 In cross-examination, the applicant conceded that when the respondent took over the business, existing drivers, including himself, were given (free of charge) two shirts. He also conceded that he was given epaulettes for his shoulders. He also said in cross-examination that he received the respondent's memorandum of 11 January 2000 and accepted the arrangement. He said that he never made a complaint to the respondent about the non-provision of uniforms and he did not form the view that the respondent's conduct was unfair in not paying for his uniform until after he "left them". 133 In my view, the applicant's claim concerning the non-provision of a uniform suffers from a number of difficulties. According to the 2001 Regulation, the respondent's obligation towards the applicant with respect to uniforms extended to providing them. The Macquarie Dictionary, 2nd Edition, defines the word "provide" as "to furnish or supply", "to afford or yield", "to make arrangements for supplying means of support, money, etc ...". None of these definitions envisages a component of monetary payment for what is being furnished or supplied (in this case uniforms). Neither party expressly submitted that the definition of "to provide" incorporated payment, although it was implicit in the applicant's account. In Stocks & Parkes Investments Pty Ltd v The Minister [1971] 1 NSWLR 932, the verb "provide" was said to mean, "to give or to make available in fact". This definition is consistent with the Macquarie Dictionary definition. The memorandum of 11 January 2000 provided information to all drivers about the uniforms, where they could be purchased, and the prices. Some of the items of uniform were subsidised by the respondent. The Ministry of Transport, when conducting its preliminary investigation into the respondent's operations in July 2005, specifically addressed the issue of the supply of uniforms by the respondent to drivers. It found that the drivers purchased their own trousers and shirts and the respondent provided insignias, epaulettes and badges free of charge. Significantly, no criticism was made of this arrangement, the Ministry of Transport concluding that the respondent was generally complying with its network accreditation standards. 134 There was no evidence, therefore, upon which it may be concluded that the respondent unfairly refused to provide the applicant with a uniform. No attendant unfairness in the relevant provision of the bailment agreement can be said to arise, or in the respondent's conduct in not paying for the applicant's uniform. The respondent's obligation extended only to providing or supplying the uniform which it did by making part of the uniform available free of charge, subsidising other items and directing the applicant to where he could purchase the remaining items. 135 It also emerged in the evidence that the figure of $1,996.00 sought by the applicant from the respondent as compensation for the alleged unfairness was derived by him from his income tax returns. The income tax returns were tendered into evidence. They revealed that during the period of his engagement with the respondent, the applicant had successfully claimed as a deduction every financial year, the costs associated with the purchase of his uniform. When this state of affairs was put to the applicant he said he did not see anything wrong in seeking an amount equal to the deductions from the respondent. He suggested that his accountant, "would automatically fix the taxation commission (sic) up with the payments that are made to me". In this regard, the Court agrees with the respondent that it could not countenance making an order for monetary relief in respect of an item that has already been claimed and accepted as a legitimate deduction by the Australian Taxation Office. 136 For the foregoing reasons, the court rejects the applicant's claim of unfairness with regard to the provision of uniforms. Damage to taxi vehicles 137 The amended summons also alleged that the bailment agreement was unfair because: It permitted the respondent to require the applicant to pay for costs associated with damage to taxi vehicles operated by the respondent contrary to clause 32 of the Passenger Transport (Taxi-Cab Services) Regulation 2001. 138 The relevant clause in the bailment agreement on this issue is Clause 12, which provides: The bailee shall exercise proper control of the taxi-cab. The bailee shall exercise due care of the taxi-cab then the subject of this agreement and shall be liable for the cost of making good any damage to the taxi-cab occasioned during the bailment caused by, or attributable to, the neglect, negligence or misconduct of the bailee. In this regard, in the advent of any damage being sustained to the taxi-cab then the subject of this agreement, the bailee agrees that he/she shall lodge with the bailor within 24 hours the sum of $200. Should the cost of repair to the taxi-cab be less than $200 then the cost of repair shall be paid directly from the bailee's deposit. If the cost of repair exceeds the amount lodged, the bailee shall forfeit this amount and remain liable for the balance of the cost of making good the damage as agreed in this clause. Should the cost of repairs subsequently be recovered from another party the bailor shall repay to the bailee any moneys lodged by the bailee for that purpose. At the conclusion of each shift, or upon the earlier termination of the bailment, the bailee shall return the taxi-cab to the garage or depot then used by the bailor or other place nominated by the bailor. The bailee further agrees upon the conclusion of any hiring to proceed to the nearest designated taxi rank within the approved area of operations where the bailee shall stand for hire unless previously booked or hired or otherwise directed by the bailor or nominated representative. 139 At some stage, it appears that the amount of $200.00 required to be lodged by the bailee with the bailor under the clause was increased to $500.00. 140 Clause 32 of the 2001 Regulation provided: (1) The operator of a taxi-cab must maintain insurance policies, and provide evidence of their currency, in accordance with this clause. Maximum penalty: 10 penalty units. (2) The operator must maintain one or more policies that: (a) provide cover of at least $5,000,000 against liability for damage to property caused by or arising out of the use of the taxi-cab, and (b) indemnify the driver for the time being of a taxi-cab in relation to any damage (including any excess payable on a claim) arising out of the use of the taxi-cab. (3) The policies must be maintained with a corporation authorised under the Insurance Act 1973 of the Commonwealth to carry on insurance business. (4) The operator must provide an authorised officer, on request, with evidence that the policies are current. (5) The operator must ensure that evidence that the policy referred to in subclause (2)(b) is current and is carried in the taxi-cab at all times. 141 On 12 August 2002, the respondent sent a memorandum to "all drivers and operators". The first part of the memorandum was headed "Damage to Taxis". It stated: We remind all drivers that any accidental damage to a taxi caused by the driver is payable to a maximum of $500.00 by the driver. Should another party cause the damage then our driver is obviously not at fault & is not required to pay any amount. Please ensure that with all pre shift inspections you note all & any body damage prior to your start as damage not noted could well be charged to you. Of interest, over the last four weeks car 8 has had the front bumper damaged on four separate occasions at a total cost of over $600.00. In all cases the damage was caused by negligent driving over gutters or spoon drains. 142 The memorandum was followed by a second memorandum dated 12 August 2004 in which drivers were reminded "that our bailment agreement requires payment of up to $500.00 by the driver should any damage be occasioned to a taxi whilst under the care and control of the driver unless another person is held responsible for the damage". 143 Mr Stewart, in his affidavit, confirmed that the $500.00 the drivers were required to pay under their agreements arose only when damage was sustained to a taxi as a result of the drivers' negligence. Mr Stewart emphasised that drivers were never required to contribute money for damages to other vehicles or property. All payments made by the applicant between 2000 and 2006 were as a consequence of the applicant's negligence. 144 The applicant conceded in oral evidence that he had been involved in accidents occasioned by his own negligence when driving one of the respondent's taxis. He said in his affidavit that between 2000 and 2006, he was required by the respondent to pay it $3,747.00 for damage to taxis driven by him. The amount was sought by the applicant in the amended summons as a re-imbursement of costs paid by him to the respondent for damage caused by him to the taxis. 145 According to the applicant, the unfairness with regard to this aspect of his claim arises because of the perceived inconsistency between Clause 32(2)(b) of the 2001 Regulation and Clause 12 of the bailment agreement. Clause 12 in its terms was said to be contrary to law (and therefore unfair) because Clause 32(2)(b) of the 2001 Regulation required the taxi-cab operator (the respondent) to indemnify the driver for any damage including any excess payable on a claim arising out of the use of the taxi-cab. 146 According to the respondent, the applicant has misconstrued the 2001 Regulation, which merely requires the respondent to hold a third party insurance policy in relation to each vehicle. This protects the drivers from liability for loss of property or injury to third parties. It is a protective provision directed towards both the bailee and the bailor and is conducive to the good regulation of the taxi industry. 147 In my view, the respondent's construction of Clause 32 of the 2001 Regulation is to be preferred. The clause does not specifically address driver liability in respect of accidents and consequential damage to the taxi-cab caused as a result of the driver's negligence. In its terms, it relates to liability for damage, "to property caused by or arising out of the use of the taxi-cabs", and indemnification of the driver, "in relation to damage ... arising out of the use of the taxi cab". Clause 12 of the bailment agreement is limited in its terms to damage sustained to a taxi driven by the applicant as a result of his "neglect, negligence or misconduct". The clause does not extend, either expressly or impliedly, to damage caused to other vehicles or property as a result of the applicant's negligence. 148 Even if I were to come to a contrary view and find that Clause 12 was unfair in its terms (because it was contrary to the provisions of Clause 32 of the 2001 Regulation), the applicant's claim suffers from the same difficulty as the claim for uniforms. In cross-examination, the applicant revealed that the figure of $3,747.00 was derived by him from his income tax returns. The applicant had successfully claimed from the Australian Taxation Office yearly deductions for amounts paid by him to the respondent under Clause 12 of the bailment agreement, arising from accidents caused by him as a result of his negligent conduct while driving a taxi for the respondent. The Court could not countenance making an order for monetary relief in respect of an item that has been claimed and accepted as a deduction by the Australian Taxation Office. An additional difficulty with this claim was that the amount of $3,747.00 was unable to be verified by the applicant by reference to his income tax returns. The applicant produced no other documentation which might have assisted in the method of calculation of moneys paid to the respondent by reason of damage sustained by him to the respondent's taxi-cabs. For these reasons, the claim of unfairness based on the requirement to pay the costs of damage to taxis occasioned by the applicant's negligence is rejected. Relief 149 It is appropriate for reasons earlier expressed to make compensatory orders based on my finding that Clause 29 of the bailment agreement was unfair in its terms and in its operation in the circumstances of the termination of the applicant's engagement by letter of 29 May 2006. 150 According to the applicant, the agreement should be varied to provide for a reasonable period of notice of termination. In this regard, it was said to be appropriate to consider the entire period of the applicant's service, where that service was performed under a number of different contracts or for "related entities". Payne v Foxboro L&N Pty Ltd and Another (1998) 81 IR 404 and Ross v GN Comtext were two authorities relied upon in support of the proposition. 151 According to the applicant, the Court in assessing a reasonable period of notice in the context of his engagement, will have regard to the entire period of the applicant's employment, including his engagement with the former owner of the respondent's business. The applicant was engaged full-time by the former owner, Wingecarribee and Berrima Cabs, between the period 1993 and 1999. Thereafter, he was engaged by the respondent from 5 November 1999, (the date the impugned agreement was signed) until 29 May 2006. Based on the applicant's calculation, this gives rise to a total of approximately 13 and one half (13.5) years. 152 It is unnecessary for the Court to attempt to determine a more precise period. I am unable to agree that the Court should take into account in assessing a period of reasonable notice, the applicant's engagement with Wingecarribee and Berrima Cabs. That business bore no relationship whatsoever to the respondent's business. Payne v Foxboro is of no assistance to the applicant. Under consideration in that case was the question of notice or payment in lieu of notice based on the applicant's employment with two respondents, both of whom were related corporate entities. Ross v GN Comtext is also of no assistance. Walton J, Vice-President, in that judgment, took into account, when assessing a reasonable period of notice, the applicant's former employment with other overseas corporate entities on the basis that those entities, referred to collectively by his Honour as the "Comtext Group", were all related to the respondent. 153 Any reasonable period of notice in the present proceedings falls to be assessed therefore in accordance with the applicant's period of engagement with the respondent, namely, the period between 5 November 1999 and 29 May 2006, an approximate period of six and one half (6.5) years. 154 The applicant's termination was effected for no good reason by the respondent. The reliance by it on the allegation of overcharging with regard to the Moss Vale railway episode on 27 February 2006 was misplaced. The applicant was on sick leave at the time his engagement was terminated, suffering from stress and depression. Dr Flynn had notified the respondent by facsimile on 29 May that the applicant would be fit to return to work on 1 July 2006. This appears to have been what prompted the respondent to draft its letter of 29 May terminating the applicant's engagement. The applicant would have been 66 years of age at the time, with diminished prospects of obtaining work in any other field of industry. As earlier mentioned, at the time of his termination, there were no performance issues with respect to the applicant's standard of work, although the respondent had a concern about what it regarded as excessive hours worked by the applicant. There was also the difficult relationship with Mr Turner which had been ongoing for a number of years. Mr Stewart said however, that he regarded the applicant as a friend and his reaction to the tension does not suggest any serious disruption to the workplace caused by the interaction between the applicant and Mr Turner. There was on the evidence, therefore, no impediment identified to the applicant's return to work. In addition, no reasonable explanation was given to the applicant for the termination of his engagement. The applicant had about four weeks notice of his termination, that is, until 1 July 2006 which was his planned date for return to work. 155 The applicant remained on workers compensation until 11 July 2006, which means he continued to receive payments (approximately $1,000.00 per week) for an additional six weeks. This period of time should be taken into account when assessing a reasonable period of notice. With regard to other work performed by the applicant after his termination, the evidence was that he undertook two shifts per week as a driver for another company from around November 2006 and April 2007 and then attempted to set up his own business. While working for the other company, the applicant said he earned an average of $250.00 per week. According to a Notice of Assessment for the period ending 30 June 2007, the applicant had a taxable income of $24,141.00. No details were provided as to the source of that income. 156 In the amended summons, the applicant sought $50,000.00 representing a payment of 12 months in lieu of notice. The amount was sought taking into account the applicant's period of service with the former owner of the respondent's business. For reasons earlier stated, I decline to take this earlier period into account. Based, therefore, on a period of engagement spanning 6.5 years and taking into account the matters earlier considered relevant to the applicant's termination, I assess a reasonable period of notice to be five months. The fact that the applicant continued to receive workers compensation payments at about $1,000.00 per week until 11 July 2006 following his termination, will be taken into account in reducing the period to four months representing an amount of $16,670.00 (rounded out to the nearest ten dollars). Interest should be payable on that amount from the date the amended summons was filed, that is, 20 August 2007. I decline to take into account other work performed by the applicant. According to the available evidence, the applicant did not commence that other work until some time in November 2006. 157 The applicant was only successful on one of his claims that the bailment agreement was unfair, although the claim of unfairness upon which he succeeded with regard to the circumstances of his termination was undoubtedly his principal claim. Nevertheless, I propose, at this stage, not to make an order for costs, but to hear the parties on the issue at a later stage. Orders

158 The Court makes the following orders consequent upon the finding of unfairness which has been made:

1. The bailment agreement signed by the applicant on 5 November 1999 as to Clause 29 thereof is declared void as from 28 May 2009 (except as to monies already paid);

2. The respondent shall pay the applicant $16,670.00 representing four months gross salary based on an annual income of $50,000;

3. The respondent shall pay interest on the amount specified in Order 2 above in accordance with Schedule 5 of the Uniform Civil Procedure Rules 2005. The interest shall be payable from the date of filing of the amended summons for relief on 20 August 2007 until the date of judgment;

4. The proceedings are set down for a directions hearing at 9.45am on Thursday, 29 April 2010 in relation to the issue of costs.

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