10 Mr Ryan has estimated the potential severance pay of the nine contract carriers who are the subject of the TWU claim in this hearing if the TWU claim is successful. Mr Bull has not had the opportunity to check those figures but I have no reason to doubt Mr Ryan's calculations and I believe I am entitled to rely on them in this hearing. I summarise the position with each of the contract carriers as follows:
(i) Mr Kulibab trades as A S and E A Kulibab Pty Limited. He was engaged on the SWADS contract and refused to convert to the Post Logistics contract in the middle of 2009. He declined to accept the offer to work with Messenger Post. If he is entitled to severance pay, it has been estimated at $29,741.99.
(ii) Mr Walsh trades as Gazmac Transport Pty Limited. He was also engaged on the SWADS contract. He refused to convert to the Post Logistics contract in the middle of 2009 and declined to accept work with Messenger Post. If he is entitled to severance pay, it has been estimated at $23,183.77.
(iii) Mr Kostrubiec is a sole trader who refuses to form his business as a corporate entity. He was originally engaged under the SWADS contract and in 2009 refused to convert it to the Post Logistics contract. He declined to accept work with Messenger Post. His severance pay has been estimated as $33,630.27.
(iv) Mr Murphy trades as Jacklin Consulting Pty Limited. He was engaged under the SWADS contract and refused to convert to the Post Logistics contract in the middle of 2009. He accepted work with Messenger Post and is working for it performing the work he originally carried out for Post Logistics. His severance pay has been estimated at $26,741.63.
(v) Mr Paulis trades as Pony Transport Pty Limited. He accepted work under the Post Logistics contract from the middle of 2009 and accepted work with Messenger Post. His severance pay has been estimated at $13,951.26.
(vi) Mr Kim trades as Quang Thanh Transport Pty Limited. He also agreed to work under the Post Logistics contract when it was given to him in the middle of 2009. He accepted work with Messenger Post. His severance pay entitlements have been estimated as $22,581.61.
(vii) Mr Santos trades as S G Santos Pty Limited. He was engaged under the SWADS contract and refused to work under the Post Logistics contract when it was offered to him in the middle of 2009. He subsequently accepted work with Messenger Post. His severance pay has been estimated as $30,808.06.
(viii) Mr Nguyen trades as Tan Transport and Removal Pty Limited. He was also engaged under the SWADS contract and refused to work under the Post Logistics contract. He declined work with Messenger Post. His severance pay has been estimated as $28,537.58.
(ix) Mr Bosevski trades as VAS Transport Pty Limited. He worked under the Post Logistics contract and accepted work with Messenger Post. His severance pay was estimated as $19,080.80.
12 After setting out the above factual matrix, about which there is no controversy, the Commissioner went on to consider the questions posed for determination and in so doing, made the following observation about the operation of cl 6(iii) of the Transport Industry - Redundancy (State) Contract Determination:
12 An employer or principal contractor who arranges for suitable alternative employment is released from the obligation to pay any severance pay.
13 We accept, as Mr A Hatcher SC for the TWU submitted, without demur, that the provisions of cl 6(iii) required the Commissioner to determine whether Post Logistics had obtained acceptable alternative work for each of the nine retrenched carriers. Only in the event of a positive finding in that regard, could the Commissioner then determine whether the amount of severance pay for each carrier should be reduced and if so, to what extent.
14 It was further submitted by senior counsel for the TWU that the Commissioner, in stating the proposition set out above (assuming that the word "suitable" is used as a synonym for "acceptable") fundamentally misdirected himself and, in so doing, acted "upon a wrong principle" (see House v The King (1936) 55 CLR 499 at 505) such as to require leave to appeal being granted and the appeal being upheld. We agree with that submission and in so doing, reject the conclusion for which counsel for Post Logistics contended (among others) to the effect that the deficiency in the proposition stated by the Commissioner could be somehow cured if the word "not" is read between the word "is" and the word "released". We do not accept and, with respect, there are no grounds upon which it could be accepted as counsel for Post Logistics submitted, that the error of principle is founded in a typographical error. On the basis of this error alone there are sufficient grounds upon which to grant leave to appeal and to uphold the appeal and we intend to do so.
15 Before doing so, however, it is appropriate to recite another basis upon which the impugned decision is criticised by the appellant and that basis is to be found in the following passage from the decision:
13 There is no doubt that Post Logistics have made efforts to arrange for alternative engagements for its retrenched contract carriers - and five of them actually took up the offer made to them in that respect. I would not wish to in any way suggest in this decision that it should be in the same position as a principal contractor who made no efforts at all in that respect. To do so would discourage a principal contractor from making any efforts to find its retrenched contract drivers alternative work, which is clearly a desirable thing for him to do and something that it would be appropriate for me to have regard. Consequently, I reject Mr Bull's primary submission that the retrenched contract carriers should receive the redundancy pay prescribed in Clause 6(i) without any discounting at all.
16 We consider there is substance in the TWU contention that the proposition stated by the Commissioner appears to be intended to apply irrespective of whether the alternative work obtained by Post Logistics was "acceptable" work within the meaning of cl 6(iii). This would mean that contract carriers can have their severance entitlements reduced, even though the alternative work obtained for them is not "acceptable alternative work". We consider this is something which is simply not authorised by cl 6(iii).
17 In the case of the three carriers whose claims were rejected by the Commissioner, we accept and it is not contended otherwise, that the Commissioner found that the alternative work obtained for them with an entity known as Messenger Post was "acceptable alternative work" within the meaning of the clause. We also consider, on a review of the material before us, that there is substance in the TWU complaint that the Commissioner having so found, did not then proceed to consider whether he should exercise his discretion under cl 6(iii) to reduce or not reduce the amount of severance payment because he applied the proposition stated at [12] of his decision in a way which automatically disqualified them from severance payments.
18 Finally, as to other matters complained of by the TWU, and without determining the matter, we consider it is tolerably clear that the Commissioner failed to reach a conclusion as to whether Post Logistics had obtained or failed to obtain acceptable alternative work for the remaining six claimant contract carriers and yet proceeded nonetheless to reduce severance payments that would otherwise be due and payable to them. If established this would constitute further appellable error on the long established principle that it is essential that decisions of the Commission contain express findings upon which to ground the exercise of discretion: Busways v Johnson (1994) 55 IR 255 at 257. It will not be sufficient for such findings to be left, as a matter of inference, from the fact that the Commission decided to grant or decline to grant relief: Entertainment Distributors Company Pty Limited v Burnard (1993) 49 IR 446 at 453.
19 Further, on the question of leave, and notwithstanding the submission of counsel for Post Logistics to the contrary, we consider that there are questions raised by the appellant which are of general importance or more particularly, which have wider implications for the jurisdiction of the Commission in this area. In that regard, we were taken by senior counsel for the TWU to an earlier decision of McKenna C where on the face of the record, there were similar errors of principle. In Notification under s 332 by Transport Workers' Union of New South Wales of a dispute with Toll North Pty Ltd re Contract of Carriage and other matters [2008] NSWIRComm1107 at [26] the Commissioner said this:
In these circumstances, I do not consider the respondent could be regarded as having obtained "acceptable alternate work for the carrier" as contemplated in cl 6(iii) of the Determination, such as would wholly displace Mr Bailey's entitlement to scale severance payments . While the work of itself may have been acceptable there was simply not enough of it to be regarded as acceptable alternative work (emphasis added).
20 The Commissioner went on at [28] to then say this:
I have given consideration to whether Toll should be allowed some reduction in the amount of 20 weeks severance pay on the basis it arranged at least some alternative work for Mr Bailey.
21 It was submitted with some persuasive force that those observations of McKenna C demonstrate errors of the same nature as in the instant case in as much as they demonstrate a belief on the part of McKenna C that there was some residual discretion to reduce severance pay, even though the alternative work found by the principal contractor in that case was not "acceptable alternative work".
CONCLUSION