Crowther Logistics Pty Ltd v Staples Australia Pty Ltd

The Evidence

1. Hugh Crowther provided a statement in which he advised that he was an owner driver operating Crowther Logistics Pty Ltd as a sole director. He commenced a contractual engagement with the respondent's predecessor, Corporate Express, on 1 September 2009 to perform delivery work. His contract was terminated on 22 April 2016.
2. Mr Crowther's route covered the area from Crows Nest to Chatswood down to Castlecrag, Castle Cove and Artarmon. It was bordered by the Highway - his route was a mixture of businesses and residential addresses.
3. In practice, contracts were collectively negotiated between the Drivers' Committee and the respondent. Mr Manning, another of the drivers on the Committee gave evidence that all the drivers were on contracts that commenced and expired on the same dates, at least in relation to the last two contracts that he was aware of. Nevertheless, the drivers signed the contract individually between their firm and the respondent. All contracts were the same as that negotiated by the Drivers' Committee except approximately five that had a variation in rates, generally due to a specific issue to do with the geographic area of their run.
4. Mr Darren Barlow has been Transport Manager, NSW and ACT at the Erskine Park site since 6 October 2009. He participated in the negotiations which led to agreements on the terms and conditions of the Independent Contractor agreements for drivers, including participation in conciliation conferences before the Industrial Relations Commission. He confirmed that the agreement entered into with Crowther Logistics Pty Ltd was consistent with the standard agreement negotiated with all the drivers at that plant.
5. Mr Manning recalled that, in or about 2011, there was a strike by the drivers as the negotiations for a new agreement with Corporate Express had become quite personal. The dispute was eventually resolved and new agreement was negotiated which expired in May 2014.
6. Mr Crowther joined the Drivers' Committee for the first time during the last round of negotiations which led to the current agreement. Negotiations had already commenced in 2014 when he took the place of the former union representative and committee member, Greg Edwards. The other four members of the Committee were Richard Manning, Michael Nobbs, Kassem Jaafar and Mark Harris. The Committee met with management once a month to discuss general operating issues.
7. Members of the Drivers' Committee also acted as support persons for other drivers during disciplinary meetings conducted by the respondent. Mr Manning stated that it was the role he played following his election to that committee.
8. Mr Manning recalled that the 2014 negotiations were difficult, and at times emotional, but there was no industrial action. On 23 May 2014, the drivers signed agreements with the respondent which had an expiry date of 1 May 2017.
9. Mr Manning agreed that one of the outcomes of the May 2014 agreement was an agreed flat rate for the delivery of all parcels or cartons below a certain number. He also agreed that the flat rate was subject to CPI indexing.
10. Mr Crowther agreed that the term of the agreement he signed was for 36 months to terminate on 1 May 2017 unless terminated by either party prior to the expiry date. He had signed three of those acknowledgements over the years with this respondent and its predecessor and each contract had a fixed term.
11. Mr Crowther confirmed that when he joined the Committee he was already on notice from the drivers regarding their concerns about home deliveries. Mr Manning recalled that one of the first chores of the Drivers' Committee following his election was to write to the respondent on 29 January 2015 to raise a number of important issues confronting drivers in practical ways. Despite meeting with management on multiple occasions, those issues - increase in home deliveries, the capacity to sell their runs, change to start times and freight being incorrectly sorted - were not satisfactorily resolved: BROWN: … And part of your role on the committee was to gather up the ideas and the concerns, and do I take it that one of the concerns that would've been live at that time was the fact that from December 2012 there was the issue of home deliveries? MANNING: Yes. Q: So when you entered into these negotiations for the May 2014 agreement A: Uh-huh. Q: …. You were on notice of the concerns with respect to the drivers in relation to what is referred to as home deliveries, do you agree with that proposition? A: Yes. Q: And it's true, isn't it, that some of the drivers had some issues with the home deliveries, and in particular how much they were getting paid for the home deliveries? A: At that time that was not a big issue. Q: It was not a big issue, why was it not a big issue, sir? A: Because the frequency wasn't there, it was very rare….. Q: And the intent of the drivers' committee, and I'm only asking you this from the perspective of the drivers' committee, is that you wanted a degree of certainty as to the rates for the three year term, correct? A: Yes. Q: And therefore you locked in those rates knowing that they would be the rates for the three years of the term, correct? A: Yes. Q: And putting back your own hat on, you were happy enough to provide services under those rates? A: At the time of signing this, absolutely. Q: Yes, and do I take it, sir, from that comment, that at some stage you decided that you were not happy to provide services applying those rates? A: That's correct. Q: And do you want to tell this Commission when that occurred in your own mind, sir? A: With the increased frequency of home deliveries, for one, so once upon a time maybe done one or two a week, that's fine, but when it become four or five a day, or 15 a week, it become a real issue. I was also happy to provide those services at that cost while the boxes were at the size they were at the time I signed the contract. The boxes were increased in size, the boxes were increased in weight after that. That's another issue that wasn't brought up but we still provided that service. They also changed start times after this contract was signed, which also added cost to my business, so I've not got larger boxes, heavier boxes, later start times and an increased frequency in home single drop deliveries which were not there at the time of signing this contract…. COMMISSIONER: Was it gradual, was there a certain date when this happened? A: Okay, yes it was gradual. The first time home deliveries were raised as a concern, along with some of the other issues, was in a formal meeting in January 2015.
12. In about February 2016, the Drivers' Committee prepared and distributed to the drivers and management a discussion paper titled "Staples Transport Contractors Discussion Paper". About 25 drivers met on Saturday morning, 27 February 2016, to discuss its contents in addition to those who gave telephone feedback. It was resolved that the Drivers' Committee obtain advice from the TWU prior to addressing the contents of the paper with management.
13. Mr Manning stated that Mr Sherwood, TWU Organiser, advised them to select the two most important issues to the drivers and focus on them in discussions with management. The two issues selected were home deliveries and wrong routes.

Home Deliveries

1. For the three-year period prior to the meeting, home deliveries were being performed and compensated in accordance with the Schedule of Rates in the Agreement. There was no suggestion that Staples was not complying with the agreement as the number of home deliveries increased.
2. Mr Barlow pointed out that since 2013 home deliveries were being performed and compensated without any suggestion that Staples was not complying with the Schedule of Rates in the agreement.
3. The issue of home deliveries affected some drivers more than others. It particularly impacted those drivers working in the suburbs. In the main, a home delivery was a one box delivery for which the driver was paid $2.08. Mr Manning estimated that if four deliveries were done in an hour, it would mean that the driver was working for $8.32 per hour. Mr Crowther estimated that if a driver had to attend at a residential address, he would have a 20-minute round trip, off the standard run, which would result in receipt of an unsustainable payment of $2.08 for that delivery.
4. Under re-examination, Mr Crowther explained that three new size boxes were introduced after the 2014 agreement was signed off on - two of which were larger than the existing ones. The previous C4 became known as the M4 and the new boxes were known as an A5, A6 and the maxi. That obviously reduced the box count and it also introduced some weight issues to the boxes.
5. In relation to corporate clients or commercial buildings, they have loading docks or facilities that made it more convenient or expedited the delivery. The ability to use such loading docks to do a home delivery depended on the distance between that loading dock and the residential address. It also depended on the relationship the driver had with the particular commercial premises.
6. Messrs Manning and Crowther conceded that, in the 3-year period prior to the meeting on 7 April 2016, home deliveries were being performed and compensated in accordance with the Schedule of Rates in the agreement. There was no suggestion that the respondent was not complying with the agreement. The drivers considered it to be a growth industry for the respondent as they were getting an increasing number of home deliveries and were seeking money for such deliveries. A demand was made for an increase in the payment in circumstances where a driver was asked to perform a home delivery as those types of deliveries were taking longer to complete and the best the drivers could do was about four deliveries per hour.
7. In re-examination Mr Crowther agreed that the delivery to residential addresses was built into the rate they received but pointed out that it was not at the frequency it had become. It became multiples of deliveries instead of one or two boxes a day thereby shifting the business model.

Wrong Routes

1. Drivers were required to pick up their own freight and load it on their vehicles at the start of the shift. There was a problem with the information technology system that resulted in, from time to time, inaccurate information being included on the labels for the delivery of freight resulting in freight being allocated to the wrong geographical run and placed on the wrong freight pick up bay. When scanning and sorting their freight at the commencement of the shift, the drivers were required to identify "wrong routes" and ensure that the freight was given to the driver completing the appropriate run thereby adding time to the driver's day, particularly when there were large amounts of improperly allocated freight. That issue was an ongoing problem at the Erskine Park depot.
2. It was time consuming and time wasting as drivers, it was estimated, can spend from between 45 minutes to an hour sorting out freight and getting it to the correct driver. It was a huge issue for drivers. Mr Crowther recalled that the issue of wrong routes had been raised in 2015 at which time Mr Barlow advised that the respondent was working on fixing the software so routes stay assigned as per the master data list. Mr Crowther also recalled that he had responded at that time, "we first raised this more than 12 months ago, we know it has been a long outstanding issue….".

7 April 2016 Meeting

1. Mr Barlow met with the Drivers' Committee from time to time to discuss issues of concern to the drivers. He could not recall any meeting in 2016 prior to 7 April 2016.
2. A meeting was held on 7 April 2016 at which the following were in attendance: Mr Darren Barlow (Transport Manager-NSW & ACT), Stephen Holmes (Transport Supervisor), Cecilia Wang (legal representative of Staples), and the following members of the Drivers Committee - Hugh Crowther, Kassem Jaafar, Mark Harris, Richard Manning and Michael Nobbs. Mr Sherwood, TWU Official was also in attendance at the invitation of the Drivers' Committee.
3. Mr Manning opined that Mr Joe Taylor (Manager) declined to attend when management was advised that Mr Sherwood would be attending the meeting.
4. Mr Barlow recalled that the meeting proceeded on an informal basis. Mr Manning recalled that it was a cordial meeting. It was not disputed that two items were discussed at that meeting - home deliveries and wrong routes.
5. Under cross-examination, Mr Manning agreed with the minutes of that meeting as produced by Mr Barlow in relation to the subject of home deliveries. The Drivers' Committee raised the following issues:

• Home deliveries take longer to complete;
• The best they can do is 4 per hour;
• It takes time to look up the delivery address;
• The deliveries normally have special instructions to call customers before making the delivery;
• These deliveries were previously done by StarTrack prior to the new agreement being signed in 2013; and
• Need this addressed ASAP

1. Mr Barlow stated that he was advised, at that meeting that the drivers wanted a minimum payment of $8 for each delivery to a residential address which would impact significantly on the respondent as it was a substantial change to the existing arrangements. He said that he undertook to consider and respond to their request.
2. Mr Crowther gave evidence that, in his case, he averaged between 10-15 home deliveries a week which impacted on him because of the time it took to make such a delivery.
3. In that regard, the respondent's representatives undertook to meet with the Drivers' Committee by the end of the following week to provide a response.
4. Messrs Manning and Crowther also agreed with the contents of Mr Barlow's minutes of that meeting that, in relation to wrong routes:

• Mr Barlow had responded that the respondent as investing money to update the software so routes stay assigned as per the master data list and that software would be installed by the fourth quarter 2016; and
• The committee had asked the respondent to address the matter of wrong routes as soon as possible. They advised that, as a committee, they were prepared to wait till the fourth quarter 2016 (November 2016) otherwise if it was not fixed, compensation would be sought.

1. Mr Crowther confirmed that there was no reference, at the meeting on 7 April 2016, of a threat of withdrawal of services.
2. Mr Crowther also agreed that they asked for the issue to be addressed as soon as possible.
3. Mr Manning recalled that, at the conclusion of that meeting, the respondent advised that it would consider the matters raised and respond in due course.

19 April 2016

1. The Drivers' Committee (with the exception of Mr Harris) met with Messrs Barlow and Holmes at 4 am on Tuesday, 19 April 2016. Mr Barlow kept minutes of that meeting. Mr Barlow estimated that the meeting went for about 15 minutes during which he addressed the meeting on both issues. Mr Barlow's recollection of the following conversation was confirmed by Mr Manning, under cross-examination: Barlow: With respect to the wrong routes, we have invested over $400,000 fixing this but it's an IT fix and it will not be completely implemented and running until at least quarter four… But you've been paid (for home deliveries) under the rates schedule. You were doing home deliveries for six months before we negotiated the last agreement so I'm not in a position to now increase the minimum payment to $8.00 for any home delivery. If that's something that needs to be discussed in the future, then that's fine but I won't be increasing the minimum rate now. Manning: Well, could we then start contract negotiations as of now? Barlow: More than happy to sit down and negotiate new contracts if that's what you want but we would have to start afresh with a new contract and, if we both agreed, we could rip up the old ones.
2. Mr Barlow believed that he was entitled to consider the subject as closed following his consideration and rejection of the rate increase and in the absence of any further communications, emails or telephone calls from any of the drivers or their union.
3. Mr Crowther recollected that Mr Barlow advised the meeting words to the effect, "I have legal advice following our last meeting" before proceeding to read from a piece of paper he was holding in his hand words to the effect, "Wrong routes are built in to your rate, and once fixed, we should adjust the rate accordingly. As for home deliveries, they are built in to your rate. We were honest and open at the time of negotiation of the new contract that there would be home deliveries".
4. Mr Crowther also recollected commenting in an aside to Mr Nobbs, "I don't know about you, but that sounded like 'fuck you'" prior to addressing Mr Barlow, "I'll go let the drivers know, but they won't like this". The meeting concluded on that note.
5. Under cross-examination, Messrs Manning and Crowther agreed with the minutes produced by Mr Barlow as to statements that were made at the meeting on 19 April 2016 in relation to wrong routes:

• The company was working towards improving that issue by quarter 4 of 2016;
• The problem had been occurring for the past decade and would be equal to 30 minutes per day per driver;
• The company was investing over $400,000 to fix that issue and to improve the drivers lead times;
• Legally, given that it was a long-term inefficiency, technically the parties could solve that issue and negotiate a lower carton rate; and
• Staples management advised against that approach.

1. Messrs Crowther and Manning also agreed with the contents of the minutes kept by Mr Barlow in relation to home deliveries:

• Staples contractors commencing delivering the .com orders in December 2012;
• The company was open and honest about the fact that it was moving the home deliveries into its own fleet in an effort to increase the earnings of the contractors;
• Legally, that service was built into the carton rate as per the schedule;
• If the company paid a higher carton rate for staples.com, it would need to lower the normal carton rate; and
• If any individual contractor wished to negotiate a higher or lower rate for home deliveries, the company would consider such request depending upon the volumes on each run.

1. The drivers were seeking to quadruple the rate negotiated in the 3-year agreement for a home delivery. Mr Manning explained that the respondent was charging the client $5.50 freight and paying the driver $2.08 plus GST. He noted that the staples.com orders were a fast-growing area of the business. The orders relating to deliveries to commercial addresses were not an issue. It was the small amount of orders relating to delivery to residential addresses that caused the problem. Mr Manning said that he was amazed that they could not arrive at an accommodation given the small amount of work involved in the dispute. He personally did not expect the respondent to accede to the $8 per delivery demand but the four deliveries per hour was used as a benchmark for negotiations as some drivers took longer than others and some drivers were affected more than others.
2. Mr Crowther confirmed that it was Mr Manning who had suggested a quadruple increase in the rate for a home delivery. He conceded that sometimes he did not have to go out of his way to deliver a parcel to a residential address and sometimes he had only one box to deliver to a corporate client. Nevertheless, the problem existed where the residential address was, say, 15 minutes away from the last drop and another 15 minutes away from the next drop: …. Corporate addresses tend to have loading docks, loading zones, that type of thing. Most of the guys drive around four and half, six and a half tonne trucks. These are not easy things to manoeuvre down residential streets where you can't even get a car up beside a car. And they've become more frequent. Not every driver was affected, right. City drivers, not so much, because you're right; you park in one location and you can walk most places. As you got further out into the suburbs, and not my run, some of the other guys, were really spending a lot of time delivering those things.
3. Mr Manning, under cross-examination, confirmed the following conversation with Mr Barlow as recounted in the latter's statement in the proceedings: BARLOW: But you've been paid (for home deliveries) under the rates schedule. You were doing home deliveries for six months before we negotiated the last agreement, so I'm not in a position to now increase the minimum payment to $8 for any home delivery. If that's something that needs to be discussed in the future, then that's fine, but I won't be increasing the minimum rate now. MANNING: Well, could we then start contract negotiations as of now? BARLOW: More than happy to sit down and negotiate new contracts if that's what you want but we'd have to start afresh with a new contract and, if we agree, we can then rip up the old ones.
4. Mr Manning recalled that the Drivers' Committee was advised that the present agreement rate for home deliveries would not alter. He confirmed that he personally was happy to re-negotiate the agreement but pointed out that he was one voice amongst the collective.
5. Mr Manning recalled that the Drivers' Committee was advised that the rate for home deliveries would not alter.
6. Mr Crowther agreed that Mr Manning had suggested that the parties commence negotiations immediately and that Mr Barlow had agreed to commence negotiations for a new agreement to replace the 2014-2017 agreement. Mr Crowther recalled that he responded that the Drivers' Committee would take that offer back to the drivers.

20 April 2016 stop work

1. Mr Manning and some other drivers usually arrived at work at about 2 am. On 20 April 2016, they waited outside the gate to the depot until all drivers (about 40 in number) arrived to hold a meeting to discuss the issues affecting them. Mr Manning recalled that a supervisor and Mr Holmes both came out to the gate to ask what was going on. He recalled a member of the Drivers' Committee saying words to the effect, "we're having a stop work meeting".
2. Mr Crowther confirmed that a meeting of drivers was held at 2.30 am to report on, and discuss, the outcome of the meeting with Mr Barlow the previous day.
3. Mr Crowther gave evidence that his briefing to the drivers, which was fairly emotional, started a conversation going amongst the drivers during which he put a proposition to the drivers: I can't remember the exact words but I spoke a fair bit over those three days. It would've been along the lines of "We're banging our heads up against a brick wall here. We've been trying to change, get a fairer deal on these issues, even though there's a lot more. They've come back with a nil response again after at least 12 months in meetings and talking about these things. So we just go in and be happy that that's the way it's going to be or do we try to change it?"
4. Under cross-examination, Mr Crowther confirmed that a decision was made at approximately 2.45 am, about 15 minutes after he arrived and briefed the drivers: As I've mentioned before, I told them I'd had enough, and that, I fed back the information from the meeting on the 19th, said, "We are hitting our head up against a brick wall here, we're getting nowhere, they don't care about the fact that all these changes cost us money and not them, and they're just putting us off again". So, I said, "That's it for me. I've been trying as a committee member to try to represent you guys; I've had enough; I'm going.
5. Mr Crowther stated that the drivers resolved that they would wait at the gate until 10 am until someone from management came and spoke to them and tried to fix it up. By 10 am, no other members of management had come out to talk to them.
6. Mr Crowther recalled that, at approximately 2.45 am, a supervisor (Patrick (Terry) Daley) came out to the gate and asked what was going on and asked if the drivers were going in as he had to let management know. He said he replied that he did not know and told the supervisor to do what he had to do. The drivers resolved to wait at the gate for the other drivers who were scheduled to commence later.
7. Mr Crowther gave evidence that when the rest of the drivers arrived at about 4 am, they resolved to stay at the gate. He said Mr Daley returned with Mr Holmes. He recalled the following conversation taking place: Holmes: Is this about our meeting yesterday? Crowther: Yes. Holmes: Are you coming in? Crowther: Probably not. At that point both men addressed all the drivers saying: Holmes: Anyone who wants to go in is able to go in. Crowther: You are free to go in, but you won't be represented by the union if you do.
8. Mr Crowther gave evidence that Mr Holmes walked away without asking them to return to work.
9. Mr Crowther insisted that no coercion was exerted nor industrial action incited by any member of the Drivers' Committee. He opined that the action taken by the drivers was a result of the drivers' frustration hitting boiling point. The last of the drivers arrived at about 5 am. They had taken 4-5 votes to ensure that the drivers wanted to continue to wait until management spoke to them. Mr Manning said, under cross-examination, that he made it clear that the strike action was not compulsory and that no-one was being stopped from going in to work if they wished to do so.
10. The last two drivers to arrive were relief drivers. They drove in to the site to undertake work. Mr Crowther said he was aware that they had been called by Mr Holmes. The drivers made a decision, as a collective, not to stop them or block traffic entering or leaving the yard.
11. Mr Manning, under cross-examination, stated that he had not spoken at the meeting of the drivers. He admitted that he had not disclosed Mr Barlow's offer (to re-negotiate the agreements) to the other drivers. He was not aware if any other member of the Drivers' Committee had disclosed it as the drivers were spread out over a fairly large area. He was preoccupied with a number of things going on in his personal life at the time. In any event, he did not think that it needed to be disclosed.
12. Under cross-examination, Mr Manning admitted that he did not consider Mr Barlow's offer of possible renegotiation of agreements to be important: Brown: Given the situation that you were in and given that one of the potential outcomes of the meeting was that people would not provide services that day, do you not think it would've been important or vital to have conveyed to the drivers what Mr Barlow had said to you in response to your question? Manning: Yeah, no I don't think it was important. We - could I add to that? Will I answer, do you want a yes or no? …. Q: Do you think that if some of the drivers had been given that information they may have possibly acted differently? A: Well if he had come and spoken to them yes. Q: No sir I think you're misunderstanding my question. I'm suggesting - you've given evidence that you made, presumably, a conscious decision not to tell the drivers what Mr Barlow said in response to your question - A: The answer is no. I don't think it would've made any difference at all. Q: And why do you say that sir. A: Well that's my opinion. That's my opinion. …. Q: You in your capacity as a member of the Drivers Committee decided, consciously or unconsciously that you wouldn't disclose this comment of Mr Barlow to the drivers. A: That morning, no. Q: But you can't explain why you did not do that? A: The answer is just no. I didn't think it was needed to be said. If it goes onto the - if we go further down the one - anyway, the answer is no and it was no.
13. He was hoping that Mr Barlow would come to the gate and speak to the drivers as a collective. Mr Manning agreed that no indication had been given to management at the previous day's meeting of the drivers' intention to withdraw their services the following day explaining that strike action had not been contemplated at that time.
14. Mr Barlow stated that he arrived at the depot at approximately 6.40 am having received a telephone call at 6 am advising him that no drivers had entered the site. When he arrived, he saw a small number of driver vans parked outside. He noted that no member of the Drivers' Committee nor any individual driver had contacted him to provide an explanation for their non-attendance for work.
15. Mr Barlow said that he made arrangements for relief drivers to be called in to perform the transportation services. He then agreed with David Neaves that a text message be sent to the 42 drivers who withheld services that morning. He was aware that four drivers were on leave and were not involved in the dispute.
16. Mr Manning agreed that no indication had been given to management at the previous day's meeting of the drivers' intention to withdraw their services the following day as strike action had not been contemplated at that time.

1st text message dated 20 April 2016

1. Mr Crowther gave evidence that the respondent's usual mode of communication with its drivers was by text messages. Under cross-examination, he agreed that it was very common for the respondent and its drivers to use text messages to communicate with one another. Both Mr Crowther and Mr Manning confirmed receipt of the first text message from Mr David Neaves, National Transport Manager, at 6.41 am. It read: To all drivers. I've been made aware that you have withdrawn your services this morning. Staples values its relationship with our drivers and customers, and will always discuss issues affecting either. However, you must follow the disputes procedure in our contract which dictates escalating to myself at the first instance. I will not enter into any discussion under these circumstances. You are now in breach of your contract with Staples and, as such, I would encourage any driver to return to work immediately. Non-provision of services may jeopardise the continuity of your contract with Staples.
2. Mr Barlow stated that he did not receive a single response to that text message.
3. Mr Manning confirmed that, with respect to his own contract, he consciously: 1. chose to withdraw his services that morning; 2. ignored the message contained in the text; 3. chose to ignore the call to return to work immediately; and 4. chose to ignore that his behaviour was putting at risk his on-going commercial relationship with Staples.
4. With respect to the collective, Mr Crowther gave evidence that the drivers voted to stay out in front of the yard.

2nd text message dated 20 April 2016

1. At 1.17 am on 20 April 2016, Darren Barlow sent a second text message to the drivers. Both Messrs Manning and Crowther confirmed receipt of the second text message which alluded to a more formal message that was to follow. It read: A further formal message will be sent later today. The events of today by some drivers and the unreasonable disruption to our customers will be addressed in a more formal way, but for those drivers who did not present to supply services today, these actions constitute a material breach of your independent Contractor Agreement, which must be rectified. As of tomorrow, please regard this text as formal confirmation from Staples Australia Pty Limited that your company is required to provide transportation services in accordance with the Agreement tomorrow. Whilst reserving our legal position with respect to today, any failure on your part to present for transportation services tomorrow will be: (a) a further material breach of the Independent Contractor Agreement; and (b) a deemed event of unsatisfactory level of services. Please, by return txt confirm by 2.00 pm today, that you will perform services as required on Thursday, 21 April 2016. If you have any genuine concerns about entry or exit to the premises, you are to contact Darren Barlow immediately. Please be assured that we have taken steps to ensure that the entry and exit to the site will be uninterrupted.
2. Mr Barlow stated that, once again, he had not received any response to any aspect of that text message.
3. Mr Manning, under cross-examination, confirmed that he had read the text, clearly understood what it meant and chose to promptly ignore its message, including the second direction to return to work and the opportunity to respond to the message.
4. Mr Barlow stated that, once again, he had not received any response to any aspect of that text message.

3rd text message dated 20 April 2016

1. Mr Manning confirmed that he had understood the contents of the third text message from Mr David Neaves sent at 1.47 pm on the same day and marked as a "formal" notification. He agreed that he had ignored the message in the text regarding breaches of the agreement and the fact that the drivers' failure to provide services was unsatisfactory in accordance with clause 5.1 of the agreement. The text message read: FORMAL NOTIFICATION On 20 April 2016, your company refused to provide transportation services in accordance with the Agreement with Staples Australia Pty Ltd. This message serves as formal notification of a material breach of the Agreement. In addition, your failure to provide services is deemed unsatisfactory to Staples in accordance with clause 5.1 of the Agreement. We are currently reviewing the legal position of Staples in relation to the breach of the Agreement. However, this message serves as an opportunity for you to rectify our concerns by confirming that your company will immediately take steps to comply with the Agreement by resuming transportation services tomorrow at your normal start time (without any modification, ban or limitation). In an earlier message, we have already requested that you confirm the resumption of services by 4.00 pm today. If you fail to confirm that your company will resume services for tomorrow, unfortunately the company may have little alternative than to consider the ongoing contractual arrangements. It has also been brought to our attention that some individual drivers may have engaged in activities designed to prevent other drivers from the provision of services in accordance with their respective Agreements. Please note that any such behaviour may be illegal and expose the driver to penalties under the federal legislation. We would also regard such behaviour as a material breach of the Agreement. If you have any questions about this message or what is or may be required of you and your company on 21 April and beyond, please contact Darren Barlow directly.
2. Mr Barlow gave evidence that yet again, he had not received any communication in response to the above - either from the individual drivers, or from the Drivers' Committee or from Mr Sherwood.
3. Mr Crowther stated that, at that point in time, he considered himself to be a representative of the drivers and was concerned that things were getting very serious following receipt of the three text messages. He agreed that some drivers indicated to him their willingness to engage in discussions with Mr Barlow yet none provided transportation services the following day. He was not aware whether they had been prevented in any way from engaging in those discussions with Mr Barlow.
4. Mr Crowther agreed that the third text message suggested that he was in breach of the agreement he had with the respondent. He stated that he knew he was in breach of the agreement and was prepared to continue to be in breach. He made no response to the request to return to work the following day although he was fully aware of the potential consequences of his behaviour, one of which was the possibility of termination of his contract. He refused to take the opportunity offered to return to work and discuss matters including, if necessary, ripping up the old contract in return for a new contract because the respondent "can't be trusted".
5. Mr Crowther said he personally did not want to negotiate with Mr Barlow because he did not trust him albeit he agreed that he did not know Mr Barlow personally. He wanted Mr Barlow to show them respect by coming out to meet with them at the gate because that would have been a sign that he was prepared to talk to them.

Wednesday, 20April 2016 stop work

1. Mr Barlow stated that he arrived at the site shortly after midnight and was present at the time when the drivers would normally arrive to load their vehicles. None of those drivers drove into the depot to commence loading nor was there any contact made with him either by the drivers or members of the Drivers' Committee. He noted that a number of the drivers' vans were parked outside the site.
2. Mr Manning stated that all drivers, with the exception of the two relief drivers, once again stayed outside the gate on 21 April 2016 albeit they were dressed for work. Two of the drivers stayed at the front gate to advise other drivers, as they arrived, that they would be waiting outside for someone from management to address them. He recalled that members of management drove past them and through the gates. Mr Holmes stopped and asked, "what are you doing today guys?" Mr Manning said he replied: "We're waiting for you to come to talk to us." He said Mr Holmes replied "I'm not allowed to" before driving off into the depot. Mr Manning recalled that Mr Barlow would have driven in and out of the gates and past them at least four times that morning without saying a word.
3. Mr Crowther stated that the drivers held several votes during the morning. They elected on each occasion to wait outside the gate prior to dispersing at about 10.30 am.
4. Mr Manning stated that whilst at the gate, the opportunity was taken to elect two Health and Safety representatives. He and Mr Paul Druce were elected. Mr Ian Sherwood communicated the results to the respondent.
5. At 2.04 pm on Thursday, 21 April, David Neaves, in consultation with Mr Barlow, sent a further text message to the drivers which read: MESSAGE FROM STAPLES Yesterday three text messages were sent to you in your capacity as a director regarding a material breach of your Independent Contractor Agreement that occurred on 20 April 2016. The text messages provided you with an opportunity to rectify the breach. You were requested to confirm by return text message your intentions to provide transportation services today. Unfortunately and disappointingly, you did not respond to me and did not again present at the site to provide the transportation services this morning. Accordingly, Staples must again regard your conduct as both unsatisfactory and a second material breach of the Agreement. This text message constitutes a final warning in relation to your conduct. Please be advised that you now have a final opportunity to rectify the ongoing breaches of your Agreement by not later than 3.30 pm today: (a) ringing Darren Barlow directly to discuss the concerns; and (b) confirming by text message to this number that your company will present at the Erskine Park site on Friday 22 April 2016 to provide your usual transportation services in accordance with the Agreement. If you do not contact Darren and confirm that your company will resume transportation services, Friday 22 April 2016, unfortunately and regrettably your actions may result in the termination of your Independent Contractor Agreement. Finally, as Staples is current making arrangements to source alternative suppliers, if you fail to advise us by 3.30 pm today of your intentions you will not be allocated transportation services if you then choose to arrive at the site tomorrow.
6. Mr Barlow, yet again, did not receive any communication from any of the drivers in response to that communication.
7. Messrs Manning and Crowther, under cross-examination, confirmed the following its receipt and the fact that they understood the impact of its contents.
8. Mr Manning confirmed that:

• He read and understood the meaning of the words used in that text;
• He understood the words "final warning" to be very serious and the situation could not get more serious than that;
• There was an opportunity provided to speak with Mr Barlow but he chose to ignore that request; and
• He chose to ignore the direction to send a text message to confirm whether he will resume transportation services knowing full well the potential consequences that may flow from his conduct.

1. Mr Crowther acknowledged that text message and said that he chose to ignore it despite the fact that he had consulted the TWU and was advised by Ian Sherwood that there was a possibility that their contracts might be terminated. He stated that his mobile telephone was turned on all of the time and he expected Mr Barlow to either ring him direct or come out to the gate to talk to them. Although he agreed that the text message indicated that it was highly likely that their contracts would be terminated, he did not think the action would be taken before the parties had a chance to air their grievance in the Commission.
2. Mr Manning said he accompanied his wife to consult a specialist that afternoon and she was advised to have major emergency surgery the following day.

Thursday, 21 April 2016 Stop Work

1. Mr Barlow stated that he arrived at the site shortly after midnight and was present at the time when the owner drivers would normally arrive to load their vehicles. None of those drivers drove into the depot to commence loading nor was there any contact made with him either by the drivers or members of the drivers' committee. He noted that a number of the drivers' vans were parked outside the site.

4th text message dated 21 April 2016

1. At 2.04 pm on Thursday, 21 April, a further text message was sent by Mr Barlow (in consultation with Mr Neave). It read: MESSAGE FROM STAPLES Yesterday three text messages were sent to you in your capacity as a director regarding a material breach of your Independent Contractor Agreement that occurred on 20 April 2016. The text messages provided you with an opportunity to rectify the breach. You were requested to confirm, by return text message your intentions to provide transportation services today. Unfortunately and disappointingly, you did not respond to me and did not again present at the site to provide the transportation services this morning. Accordingly, Staples must again regard your conduct as both unsatisfactory and a second material breach of the Agreement. The text message constitutes a final warning in relation to your conduct. Please be advised that you now have a final opportunity to rectify the ongoing breaches of your Agreement by not later than 3.30 pm today: (a) ringing Darren Barlow directly to discuss the concerns; and (b) confirming by text message to this number that your company will present at the Erskine Park site on Friday 22 April 2016 to provide your usual transportation services in accordance with the Agreement. If you do not contact Darren and confirm that your company will resume transportation services, on Friday 22 April 2016, unfortunately and regrettably your actions may result in the termination of your Independent Contractor Agreement. Finally, as Staples is currently making arrangements to source alternative suppliers, if you fail to advise us by 3.30 pm today of your intentions you will not be allocated transportation services if you then choose to arrive at the site tomorrow.
2. Mr Barlow gave evidence that, yet again, he did not receive a single response - either to discuss concerns or to advise of resumption of transportation services. Once again, there was no contact made by Mr Sherwood.
3. Mr Manning, under cross-examination, confirmed the following:

• He read and understood the meaning of the words used in that text;
• He understood the words "final warning" to be very serious and could not get more serious than that;
• There was an opportunity provided to speak with Mr Barlow but he chose to ignore that request;
• He chose to ignore the direction to send a text message to confirm whether he will resume transportation services knowing full well the potential consequences that may flow from his conduct;

1. Mr Crowther acknowledged that text message and said that he chose to ignore it despite the fact that he had consulted the TWU and was advised by Ian Sherwood that it was a possibility that their contracts might be terminated. He stated that his mobile telephone was on all of the time and he expected Mr Barlow to either ring him direct or come out to the gate to talk to them. Although he agreed that the text message indicated that it was highly likely that their contracts would be terminated, he did not think the action would be taken before the parties had a chance to air their grievance in the Commission.
2. Mr Manning stated that whilst at the gate, the opportunity was taken to elect two Health and Safety representatives. Mr Manning and Mr Paul Druce were elected. Mr Ian Sherwood communicated the election to the respondent.

Termination of agreements - Friday, 22 April 2016

1. Mr Barlow arrived at the site at approximately 1.30 am on Friday, 22 April 2016. None of the striking drivers entered the site to undertake transportation services.
2. Mr Barlow was involved in a number of telephone discussions with the management of Staples. At approximately 8.30 am, he and Mr Neaves decided to terminate the Independent Contractor Agreements of the drivers involved in withholding transportation services. By 11 am, the termination letter had been prepared and 42 copies had been signed by Mr Neaves. Couriers were despatched at about the same time to deliver those letters to the registered business addresses of the companies who supplied the drivers. He was emphatic that the agreements were not terminated by text message.
3. The letter forwarded to each of the registered businesses read as follows: Termination of Independent Contractor Agreement Over the past three days you have been given multiple directions with respect to the provision of services by your company to Staples Australia Pty Limited ("Staples") under the terms of your Independent Contractor Agreement. Regrettably for both parties, and despite several opportunities to rectify the situation you have not responded to the reasonable directions contained in the messages to you. In addition, your company did not present to provide services on 20 April 2016, 21 April 2016 or 22 April 2016. In your capacity as director you were advised of the potential consequences of your actions. Whilst it is open for Staples to regard your actions as a repudiation of your Independent Contractor Agreement, please be advised that Staples regards your actions as misconduct in that you have not complied with the reasonable requests of Staples in relation to the provision of the transportation services. Accordingly, and again regrettably, the Independent Contractor Agreement is now terminated effective Friday, 22 April 2016. We take this opportunity to remind you of the ongoing obligations that are set out at Schedule 1 of your Contract. Arrangements will be made with you separately regarding the removal of the Staples signage from your vehicle. If you have any questions with respect to this letter of termination, please contact Darren Barlow on ….
4. Mr Crowther stated that all the drivers met outside the gate again. He said he held several conversations with Mr Sherwood that morning during which it was agreed that the TWU lawyers would be asked to notify an urgent dispute to the Commission. Just prior to leaving at 10.30 am, the drivers held another vote and elected to return to work on the following Tuesday on the basis that the dispute had been escalated by the TWU to the Industrial Relations Commission.
5. Mr Barlow denied the allegation that the termination notices were sent out in response to advice from the TWU that the dispute had been notified to the Commission. He pointed out that the only communication received from the TWU prior to the termination letters being sent out was an email from Mr Sherwood at 11.49 am on that day advising of the election of the two Health and Safety representatives. The email read: I am writing to inform you that the following have been elected HSRs for Staples; Richard Manning and paul Druce. Regards….
6. Under cross-examination, Mr Crowther agreed that the said email had made no reference to any approach to the Industrial Relations Commission of NSW.
7. The TWU filed a dispute notification in the Commission at approximately 12.27 pm and allegedly served a copy on the respondent at about the same time. Mr Crowther contended that Mr Nobbs sent a text message to Mr Barlow at about 1.51 pm on behalf of the drivers' committee advising that the drivers would resume work on Tuesday, 26 April 2016 commencing from 2.30 am.
8. Mr Barlow stated that a copy of the dispute notification, contained in an email on TWU letterhead, was not received by the respondent until 2.44 pm on that day.
9. Mr Barlow was aware that Troy Swan, Corporate Counsel, at 3 pm that day instructed the respondent's solicitors to file a Notice of Appearance in the matter immediately after receiving a call from the Registry advising of a listing at 2 pm on Tuesday, 26 April 2016.
10. Both Messrs Manning and Crowther confirmed that the drivers received another text message at 3.41 pm from David Neaves, National Transport Manager, which read as follows: As you know your contract has been terminated due to breach of contract. Just to set the record straight staples held meetings with the Union and drivers committee on Wed 7th April 2016 and the drivers committee on Tuesday 19th April 2016. I believed that the discussion would continue and was shocked to see the drivers not present for loading. Staples was never contacted by the committee, yourself or even the union while you did not present for loading. I think it would be within your best interest to call me today or tomorrow to discuss.
11. Mr Crowther said he, personally, had not received that message. He said members of the committee started to receive telephone calls from many drivers advising that Mr Barlow and Mr Holmes were calling to tell them that formal advice of the termination was being couriered to them; advising them of a new fleet the respondent was putting together; and inviting them to sign an identical agreement by 4 pm on the following Monday. He said he rang and advised Mr Sherwood of that development.
12. Mr Crowther stated that he had several conversations with Mr Sherwood on the morning of Friday, 22 April 2016 during which they discussed the matter being referred to the Commission. In his statement, he advised that they had one conversation at around 2 pm when Mr Sherwood asked him to contact the respondent to advise that the Union was attempting to have the matter listed urgently before the Commission. Mr Crowther said he called Mr Neaves and left a voice mail to the effect, "the matter has been lodged in the Commission, you need to contact the Commission, and we will be back at work on Tuesday". Despite that message, a text message was received confirming that a termination letter had been forwarded earlier that day to the registered address of each company and seeking to be provided with a nominated email address if the drivers wished for it to be forwarded through that medium. Drivers were encouraged to direct any enquiries to Mr Barlow.
13. Mr Manning stated that he did not attend the work site on 22 April 2016 as he was at the hospital at his wife's side. He did, however, receive a number of text messages advising of the termination of his agreement and that he would be receiving formal written notification delivered to his home address. He was aware that in excess of 40 drivers had received notices of the termination of their agreements. Mr Manning contended that he never received such written notification.
14. Mr Manning stated that he did not have any personal contact with the respondent over the ANZAC long weekend of 23-25 April 2016. As a member of the drivers' committee, however, he was aware that other drivers were contacted by the respondent to discuss their agreements.
15. Mr Barlow stated that after the termination notices were issued, a number of drivers approached the respondent to discuss the possibility of the drivers and their companies entering into new Independent Contractor Agreement. By the time the conciliation conference was held on 26 April, four drivers had negotiated new agreements and commenced providing transportation services.
16. Under cross-examination, Mr Crowther agreed that the email that Mr Sherwood sent to Mr Barlow at 11.49 am that day had made no reference to any approach to the Industrial Relations Commission of NSW.
17. Mr Manning stated that he did not attend the work site on 22 April 2016 as he was at the hospital at his wife's side. He did, however, receive a number of text messages advising of the termination of his contract and that he would be receiving formal written notification delivered to his home address. In excess of 40 drivers had received notices of the termination of their contracts. Mr Manning contended that he never received such formal notification.
18. Mr Manning stated that he did not have any personal contact with the respondent over the ANZAC long weekend of 23-25 April 2016. As a member of the Drivers' Committee, however, he was aware that other drivers were contacted by the respondent to discuss their contracts.

Removal of decals

1. Mr Crowther was aware that another text message was sent to the drivers at 2.39 pm on Saturday, 27 April 2016 from David Neaves which read: As your contract has been terminated please remove your signage from your vehicle and return your MDT, uniform and access pass to Staples within the next 30 days.

Tuesday, 26 January 2016

1. Almost all drivers attended the depot - those who could not attend for personal reasons called Mr Crowther to advise him. The drivers arrived at varying times commencing from 2.30 am but there was a van blocking access to the depot as it was parked at the gate.
2. Mr Crowther stated that his inquiries revealed that no contact had been made over the previous weekend by the respondent to offer a new contract to the following drivers: Hugh Crowther (committee member) Michael Nobbs (committee member) Richard Manning (committee member) Mark Harris (committee member) Richard Payne Ronald Bennett

Compulsory Conferences

1. Both Messrs Manning and Crowther were in attendance at the compulsory conferences held before Newall C at the Industrial Relations Commission on 26 and 29 April 2016 as a result of which they were aware that an opportunity was extended to all drivers to contact Mr Barlow about the possibility of re-joining the fleet. Some drivers took up the opportunity and met with Mr Barlow. Others chose not to. Mr Crowther confirmed that he decided not to take up the offer because he did not believe that anything would change.
2. At the conclusion of yet another compulsory conference on 3 May 2016, it was agreed that Mr Manning could return to work under the same pay structure and with a shorter term contract but not prior to an interview with Mr Barlow. Mr Manning said he contacted Mr Barlow the following day and arranged to meet with him and Mr Holmes on 5 May 2016. Mr Holmes took notes at that meeting. Mr Manning stated that he was slower than others in contacting Mr Barlow but when he did, it did not result in him rejoining the fleet. He was quick to point out that he had known Mr Barlow for a number of years and his refusal to contact him did not arise out of any interpersonal conflict with Mr Barlow.
3. Mr Manning recalled the following relevant conversations: Barlow: I'm surprised that of all issues you have, that it came to a head over home deliveries. Manning: You know we had more, because you had a copy of the drivers discussion paper, but we agreed to deal with two at a time. ….. Barlow: It's only individual contracts now. Manning: I know. Barlow: I'm offering you a fourteen month contract. Manning; As long as the money is the same, because you know I am a 65 hour a week man. Barlow: There is no committee anymore and we will be dealing with contractors individually. Also, there is no more introduction to work of drivers.

The Respondent's Evidence

1. Mr Darren Barlow has been Transport Manager, NSW and ACT at the Erskine Park site since 6 October 2009.
2. Mr Barlow participated in the negotiations which led to agreements on the terms and conditions of the Independent Contractor agreements for drivers, including participation in conciliation conferences before the Industrial Relations Commission. He confirmed that the agreement entered into with RFM Logistics Pty Ltd was consistent with the standard agreement negotiated with all the drivers at that plant.
3. Mr Barlow met with the Drivers' Committee from time to time to discuss issues of concern to the drivers. He could not recall any meeting in 2016 prior to 7 April 2016.
4. Mr Barlow pointed out that since 2013 home deliveries were being performed and compensated without any suggestion that the reimbursement was not in accordance with the Schedule of Rates in the Agreement.
5. Mr Barlow stated that he was advised, at the meeting on 7 April 2016, that the drivers wanted $8 for each delivery to a residential address which would impact significantly on the respondent as it was a substantial change to the existing arrangements. He said that he undertook to consider and respond to their request.

submissions

1. The TWU relied on the following decisions in support of its proposition that the Commission has a very open discretion in the context of an application under s 314.
2. The decision of Peterson J in Cherry v Allied Express Transport 73 IR 305 at p307. Mr Gibian noted that s 314 does not refer in express terms to unfairness or harshness, unjustness or unreasonableness in the same way as set out in section 84, Unfair Dismissal of the Act does with respect to employees. It leaves the discretion open as to the circumstances in which the Commission might make an Order under ss (1) or (4) of s. 314.
3. Peterson J went on, on page 308, to refer to the decision of the Full Bench in Greyhound Australia v TWU which referred to an earlier provision of the 1940. At p 309 his honour noted that the power to make a contract determination with respect to reinstatement of a contract of bailment but the Commission lacked the power in relation to a contract of carriage. An amending piece of legislation was put before Parliament to remedy that deficiency. Peterson J then opined that it was appropriate to interpret the power as one which was to be applied at least, if not solely, in circumstances where there has been an unfair termination of a contract of carriage. In other words, it would apply in the same way as it would apply to employees in considering resignation, constructive dismissal, reinstatement and compensation.
4. The TWU also relied on the decision of Kite, then Acting Justice, in TWU v Toll Transport 253 IR 262 at 265 - parag 6 - the principles to be applied in case of such an application.
5. The TWU members submit that the termination of their contracts by the respondent was an unnecessary and unwarranted harsh approach having regard to the circumstances that existed at that time and having regard to the personal consequences of each driver - they invested heavily by buying into the business that was now lost and/or by purchasing a vehicle to use in this business.
6. It was pointed out on behalf of the drivers that the respondent terminated all the drivers despite the fact that it did not wish to permanently sever its relationship with all of them.
7. Mr Crowther was an owner driver operating Crowther Logistics Pty Ltd as a sole director. He commenced a contractual engagement with Corporate Express on 1 September 2009.
8. He joined the Drivers' Committee for the first time during the last round of negotiations which led to the current agreement. Negotiations had already commenced in 2014 when he took the place of the former union representative and committee member, Greg Edwards.
9. Mr Crowther agreed that the term of the agreement he signed was for a fixed 36 months term with an agreed termination date of 1 May 2017 unless terminated by either party prior to the expiry date. The agreement was consistent with the standard Independent Contractor Agreement that was negotiated between Staples and the Drivers Committee in 2014.
10. On 22 May 2014, Mr Crowther also signed an acknowledgement which the respondent all owner drivers to sign as part of the negotiation or renegotiation of any agreement for transportation services at the Erskine Park depot. Mr Crowther said he had signed three of those acknowledgements over the years with this Respondent and its predecessor.
11. Mr Crowther's route covered the area from Crows Nest to Chatswood down to Castlecrag, Castle Cove and Artarmon. It was bordered by the Highway - his route was a mixture of businesses and residential addresses. The complaint was how long it took to deliver the goods to the residential addresses.
12. Mr Crowther agreed that he advertised his truck for sale in Gumtree in the first week of April 2016 because he wanted to leave the firm. It was still on Gumtree as at 13 April 2016. He had not disclosed it to the other drivers because he thought the advertisement had come off Gumtree by that time.
13. Mr Crowther gave evidence that in his instance, he averaged between 10-15 home deliveries a week which impacted on him because of the time it took to make such a delivery.
14. Mr Crowther agreed that sometimes he did not have to go out of his way to deliver a parcel to a residential address and sometimes he had only one box to deliver to a corporate client. Nevertheless, the problem existed where the residential address was, say, 15 minutes away from the last drop and another, say, 15 minutes away from the next drop: …. Corporate addresses tend to have loading docks, loading zones, that type of thing. Most of the guys drive around four and a half, six and a half tonne trucks. These are not easy things to manoeuvre down residential streets where you can't even get a car up beside a car. And they've become more frequent. Not every driver was affected, right. City drivers, not so much, because you're right; you park in one location and you can walk most places. As you got further out into the suburbs, and not my run, some of the other guys, were really spending a lot of time delivering those things.
15. Mr Crowther gave evidence that he did not advertise his truck on Gumtree because of home deliveries.
16. Mr Crowther attended compulsory conferences before Newall C on 26 and 29 April 2016 as a result of which he was aware that an opportunity was extended to all drivers to contact Mr Barlow about the possibility of rejoining the fleet. He confirmed that he decided not to take up the offer because he did not believe that anything would change.
17. Mr Crowther confirmed that he put his truck up for sale on Gumtree during the first week of April 2016 but did not sell it until mid-May 2016. He was not seeking reinstatement. He was seeking compensation. He was drawing a wage from his company of $692 per week ($36,000 per annum) as part of the outgoings of that business. In the six months prior to the termination of his agreement, he had rendered invoices approximating $47,568.40 in total.
18. He also confirmed that in the period of time he worked as a doorhanger he received an income broadly comparable with the sort and income and return that he was receiving while engaged by the respondent.
19. During re-examination, Mr Crowther explained that three new size boxes were introduced after the 2014 agreement was signed off on - two of which were larger than the existing ones. The previous C4 became known as the M4 and the new boxes were known as an A5, A6 and the maxi. That obviously reduced the box count and it also introduced some weight issues to the boxes.
20. Apart from the advertisement on 13 April 2016, he had attempted twice before, once in each of the preceding years, to sell his business providing he received some return on his investment. He had not been successful on each occasion.
21. In re-examination he pointed out that the delivery to residential addresses was built into the rate they receive but not at the frequency it had become. It became multiples of deliveries instead of one or two boxes a day thereby shifting the business model.
22. In relation to corporate clients or commercial buildings, they have loading docks or facilities that made it more convenient or expedited the delivery. The ability to use such loading dock to do a home delivery depended on the distance between that loading dock and the residential address and also depended on the relationship the driver had with the particular commercial premises.

Legislative Framework

1. The TWU made an application pursuant to section 314 of the Act on behalf of eight members seeking a determination in relation to compensation on the ground that their termination was unfair. The section provides:

SECTION 314 JURISDICTION WITH RESPECT TO REINSTATEMENT OF CONTRACTS

314 (1) [Contract determination] The Commission may, after inquiry, make a contract determination with respect to the reinstatement of a contract of bailment or contract of carriage that has terminated.

314 (2) [Re-engagement under similar contract] Reinstatement of a contract includes re-engagement under a similar contract.

314 (3) [Terms and conditions of contract determination] A contract determination under this section may be made on such terms and conditions as the Commission thinks fit, including provision for any period after the termination of the contract to be treated as a period of engagement under relevant contracts.

314 (4) [Reinstatement impracticable] If the Commission considers that it would be impracticable to make a determination for reinstatement, the Commission may order the bailor to pay to the driver, or the principal contractor to pay to the carrier, an amount of compensation not exceeding the amount of remuneration of the driver or carrier under relevant contracts during the period of 6 months immediately before the termination of the contract.

314 (5) [Assessment of compensation] When assessing any compensation payable, the Commission is to take into account whether the driver or carrier made a reasonable attempt to find alternative engagements and the remuneration received in alternative engagements, or that would have been payable if the driver or carrier had succeeded in obtaining alternative engagements.

314 (6) [Effect of contract determination] A contract determination under this section takes effect when it is made, and is not required to have a specified term or to be published in the Industrial Gazette.

Contractual Requirements

1. It is noted that Mr Crowther signed a document titled "Acknowledgement" on 23 May 2014 in which he acknowledged three pre-conditions attached to the agreement he had signed with the respondent:

• that the Independent Contractor Agreement attached and marked Annexure A to the Release and Acknowledgement is for an agreed term and may be terminated prior to the expiry date of the agreed term in accordance with its terms without compensation. [emphasis added]
• that there is no representation of, any further opportunity to provide transport services to or on behalf of Staples Australia beyond the expiry of the agreed term or any prior date of termination in accordance with the Independent Contract Agreement.
• that the Independent Contract Agreement may not be assigned to any other party without the prior written consent of Staples Australia and that such assignment is subject to any terms and conditions determined by Staples Australia.

1. The agreement which was current at the time of the termination of the contractual relationship contained the following relevant clauses:

2.5: The Contractor and the Director acknowledge that in circumstances where pursuant to clause 2.4 Services are not provided by the Director pursuant to this Agreement; (a) … (b) … (c) failure to advise Staples of any period of non-engagement will be a material breach of this agreement. …. 2.7: In allocating deliveries to the Contractor, the Contractor acknowledges and accepts that: (a) The parties have not set any minimum level of Services; (b) the allocation of Services will change in accordance with the needs of Staples including the balancing of individual runs, reallocation of work and geographical boundaries; and (c) the contractor will not acquire a right to any minimum level of Services or preservation of any designated run, route or geographical area or client list. 4: Termination by either party prior to Expiry Date 4.1 This Agreement will terminate prior to the Expiry Date where: (a) …. (b) Staples terminates the Agreement with 2 weeks' notice for a material breach of this Agreement and only after providing the Contractor with an opportunity to rectify the breach pursuant to clause 5; or (c) Staples terminates the Agreement without notice in circumstances of misconduct by the Contractor and/or the Director. Misconduct includes but is not limited to:

• ….
• Non-compliance of a reasonable request by Staples;… 11: ….. 11.2 In addition to the acknowledgement referred in recital D the contractor and the director acknowledge that Corporate Express does not directly or indirectly require the payment of any fee for goodwill as a pre-condition for the provision of the services or the entering into of this or any other agreement for the provision of the services (including any assignment). 12: Resolution of Disputes 12.1 This procedure will apply to any dispute or grievance with respect to the interpretation of this Agreement. Step 1 The grievance must be raised with the NSW. State Transport Manager/ Supervisor. Step 2 If the matter is unresolved, the grievance will be referred to the National Transport Manager. Step 3 If the matter is unresolved, the grievance may be referred to the Vice President, Supply Chain, Australia and New Zealand. Step 4 If the matter remains unresolved, the Contractor may either: (a) request non-binding mediation. Where the parties agree on a mediator, the cost of the mediator will be paid by Staples Australia. All other costs will be borne by the respective parties; and/or (b) seek the assistance of the Transport Workers Union, any trade union or legal counsel to notify the New South Wales Industrial Relations Commission of this matter. In the event of the matter being notified to the New South Wales Industrial Relations Commission the parties to the notification will participate in the conciliation of the matter. Subject to the Industrial Relations Act 1996 the NSW IRC may exercise its powers in relation to assisting the parties to resolve the matter….

1. In Cherry, Peterson J, having considered the history of the s314 provision, stated: … In the light of this history, it seems to me appropriate to interpret the power as one which is to be applied, at least if not solely, in circumstances where there has been an "unfair" termination of a contract of carriage. This means that it may be applied in the same circumstances as apply to employees. Here that involves considerations of resignation or constructive dismissal, reinstatement and compensation.
2. I accept the submission of Mr Gibian that the Commission is not limited to a circumstance (as is the case with s84 matters) where the termination is harsh, unjust or unreasonable.
3. It is not disputed that a number of contracts of carriage were terminated which therefore enliven that provision.
4. I refer now to the authorities cited by the parties. Unlike the facts in Smartskip, the drivers in this instance advised that they were withholding transportation services until management spoke to them about their issues. In fact, management had spoken to them about both issues at the meetings on 7 and 19 April 2016. The drivers had accommodated one issue - wrong routes - and given management until November 2016 to introduce the new technology to address that problem. The only outstanding issue - that of home deliveries - was the subject of an offer by Mr Barlow to renegotiate the contracts. Irrespective of the respondent's alleged motives or intentions, no response was provided to Mr Barlow's offer and, indeed, there was conflicting evidence that the offer was even relayed to the drivers on 20 April 2016.
5. Unlike Smartskip, the letters of termination were not instantaneous - there were a series of four text messages which have been described in detail above. They provided each driver with warnings as to the possible outcome of their actions and provided opportunities for the matter to be resolved without termination of the agreement; and finally, there was no evidence of the respondent denying the drivers their legitimate and legal right to have the union involved in resolving the present issue nor was there any evidence before the Commission that the drivers were not allowed to have the union involved when negotiating new individual agreements.
6. The following matters were not in dispute:

• The Drivers' Committee negotiated with the respondent on behalf of all drivers a standard agreement which was then entered into individually between the drivers and management;
• Only one of the eight drivers who are the subject of these proceedings had terms and conditions that were different in any material way. It was not Mr Crowther;
• Only one of the eight drivers had a different rate for the per parcel delivery. It was not Mr Crowther;
• The last agreement negotiated was in May 2014 and was for a term of three years to expire in 2017;
• Each driver also signed an acknowledgement, as described in paragraph 182 above as a pre-condition to the execution of the agreement. The said acknowledgement addressed the agreed term of the agreement and the ability to terminate prior to the expiry date without compensation under certain conditions.
• The respondent terminated the agreements of the drivers, including Mr Crowther's agreement, on Friday 22 April 2016;
• At the time of the termination of the driver agreements, all eight drivers were participating in an ongoing refusal to supply transportation services in accordance with their commercial agreements;
• The terminations were lawful; and
• The TWU case was predicated on the issue of the alleged "harshness" of the decision to terminate the agreements.

1. At the conclusion of yet another compulsory conference on 3 May 2016, it was understood by Mr Crowther that he could return to work under the same pay structure and with a shorter-term contract but not prior to an interview with Mr Barlow. Mr Barlow denied that the respondent agreed that the drivers "could return under the same pay structure".
2. Mr Crowther made a deliberate and conscious decision not to mitigate his losses by attending an interview with a view to re-negotiating his agreement.
3. Mr Crowther confirmed that, with respect to his own contract, he consciously:

• chose to withdraw his services;
• ignored the messages contained in the text messages;
• chose to ignore the call to return to work immediately; and
• chose to ignore that his behaviour was putting at risk his on-going commercial relationship with Staples.

1. Mr Crowther discussed the effects of the termination on himself and his family. Mr Crowther stated that it was a very difficult, dreadful and stressful time for him as he was not only paying off a mortgage, but was providing for his 14-year old son and fielding calls from drivers and their wives who called him in tears.
2. He said he earned approximately $50,000 (exclusive of GST) in the six months prior to the termination of his contract. Mr Crowther distinguished between the financial stresses on employees and those who run small businesses such as owner drivers. The latter have the financial burden of running a company and a vehicle and buying into a fleet. In his case, he was still paying off $105,000 to an outgoing contractor for assignment of the contract and $30,000 for the vehicle. He was aware that other owner drivers were in a more precarious situation than his.
3. At the time of giving evidence, he had spent six weeks, albeit sporadic hours, doing on the job training on construction sites with a professional door toolmaker retraining as a door fitter in order to fit fire doors and internal doors to factory units. He did not have a contract and had no guarantee of permanent work. Up until 3 August 2016, he had outlaid approximately $4000 for the purchase of tools to set up that business. He sold his truck for $5000 and purchased a Ute which was more suitable for the door fitting business for $9000. He also spent around $1500 on tools, trolleys and other equipment for that business.
4. To date he had earned $31,165 gross inclusive of GST of which $12,500 was yet to be paid to him. Mr Crowther stated that he has not had any surplus cash flow, which was important to small business owners, since his contract was terminated by the respondent. He has had to defer lodging his BAS and has been using his savings to finance everyday purchases. The family has been reliant on his wife's income to assist in meeting their financial commitments.
5. Nevertheless, Mr Crowther confirmed that he made a conscious decision not to reapply for a contract with Staples and to pursue a different career.
6. It was not disputed, as confirmed by Mr Manning, under cross-examination, that home deliveries had been undertaken throughout his engagement with the respondent, a fact that was known to the members of the Drivers' Committee who were entrusted to negotiate the 2014 three-year agreement to which he became a party.
7. Mr Manning gave evidence that he quite deliberately did not disclose to the other drivers, who were not members of the Drivers' Committee, what response Mr Barlow' had given on behalf of the respondent in relation to the two issues in contention.
8. I accept that there is a history of runs being traded over the previous 17 years and, in response to an attempt by the drivers to formalise the matter, in about July 2014, drivers were permitted to introduce a new driver to the company, subject to the respondent accepting that the person was an appropriate person to take up the job (annexure HC-3 to G1).

• Firstly, they concluded a 3-year agreement in 2014 on behalf of all the drivers in the knowledge that wrong routes and home deliveries were very much live issues to some of the drivers, depending on their run. It is noted that it was not an issue for Mr Manning personally.
• Secondly, at the meetings on 7 and 19 April 2016, the Drivers' Committee agreed, on behalf of all drivers, to stand the matter over to do with the wrong routes until November 2016 to give the respondent an opportunity to introduce new technology it had invested in to fix the problem. Given that response by the Drivers' Committee on behalf of all the drivers, it is not an issue that can seriously be pursued in these proceedings;
• Thirdly, the criticism has been made that management did not come out to the gate to talk to the drivers instead of texting them. There is no written rule in relation to who makes such an approach. Mr Barlow gave answers at the meeting on 19 April and left it open that he was willing to re-negotiate the agreement. Setting aside whether his response was reasonable or otherwise, he was entitled to believe that it was up to the Drivers' Committee to respond to him if that offer was going to be taken up. If it was rejected following the meeting of the drivers that morning, then one would expect that, given the TWU Organiser was present at the gate with the drivers all that morning, he, accompanied by the members of the Drivers' Committee, would have gone into the site to discuss Mr Barlow's response with him and other senior management, or at the very least, formally communicated the drivers' response to management. That had not occurred and the respondent was left to presume what the stoppage was about.
• Fourthly, there was no instruction from the drivers to do so most probably because there was no evidence that the offer to re-negotiate was relayed on to the drivers. Mr Manning had not, as a member of the Drivers' Committee, communicated Mr Barlow's offer to the other drivers. His action, as already conceded, was deliberate;
• Fifthly, each of the agreements contained a dispute resolution clause which was not complied with by the drivers prior to industrial action being taken;
• Sixthly, whilst Mr Barlow had, on two previous occasions, gone out to the gate and spoken to the drivers in relation to other matters in dispute, there was also a practice, and it was not unusual, for the parties to communicate by electronic means;
• Seventhly, members of the Drivers' Committee had discussed the text messages with the TWU Organiser and were made aware that, given the tone of the text messages, there was a strong likelihood that their agreements would be terminated. Yet, there was no movement by the Union official and the members of the Drivers' Committee, on whom all the drivers were relying for industrial representation, to approach management for further discussions.
• Eighthly, there was much talk about distrust of Mr Barlow, yet there was no evidence before the Commission to justify those personal views. Indeed, the evidence demonstrated that the drivers did not have any personal knowledge of Mr Barlow and could not provide any logical reason for harbouring those feelings;

1. Mr Crowther confirmed, under cross-examination, that when he joined the Committee he was already on notice from the drivers regarding their concerns about home deliveries. Nevertheless, the parties reached agreement on the per parcel rates which were fixed for the 3-year term of the agreement, subject to annual CPI increases: BROWN: … And part of your role on the committee was to gather up the ideas and the concerns, and do I take it that one of the concerns that would've been live at that time was the fact that from December 2012 there was the issue of home deliveries? A: Yes. Q: So when you entered into these negotiations for the May 2014 agreement A: Uh-huh. Q: …. You were on notice of the concerns with respect to the drivers in relation to what is referred to as home deliveries, do you agree with that proposition? A: Yes. Q: And it's true, isn't it, that some of the drivers had some issues with the home deliveries, and in particular how much they were getting paid for the home deliveries? A: At that time that was not a big issue. Q: It was not a big issue, why was it not a big issue, sir? A: Because the frequency wasn't there, it was very rare….. Q: And the intent of the drivers' committee, and I'm only asking you this from the perspective of the drivers' committee, is that you wanted a degree of certainty as to the rates for the three year term, correct? A: Yes. Q: And therefore you locked in those rates knowing that they would be the rates for the three years of the term, correct? A: Yes. Q: And putting back your own hat on, you were happy enough to provide services under those rates? A: At the time of signing this, absolutely. Q: Yes, and do I take it, sir, from that comment, that at some stage you decided that you were not happy to provide services applying those rates? A: That's correct. Q: And do you want to tell this Commission when that occurred in your own mind, sir? A: With the increased frequency of home deliveries, for one, so once upon a time maybe done one or two a week, that's fine, but when it become four or five a day, or 15 a week, it become a real issue. I was also happy to provide those services at that cost while the boxes were at the size they were at the time I signed the contract. The boxes were increased in size, the boxes were increased in weight after that. That's another issue that wasn't brought up but we still provided that service. They also changed start times after this contract was signed, which also added cost to my business, so I've not got larger boxes, heavier boxes, later start times and an increased frequency in home single drop deliveries which were not there at the time of signing this contract…. COMMISSIONER: Was it gradual, was there a certain date when this happened? A: Okay, yes it was gradual. The first time home deliveries were raised as a concern, along with some of the other issues, was in a formal meeting in January 2015.
2. The text messages from Mr Barlow had three themes - firstly, the drivers were in breach of their agreements; secondly, there was an invitation to return to work; and, thirdly, there was an offer to confer with any of the drivers if they wished to talk to him.

• the fact that he was aware of the offer by the respondent to renegotiate;
• he decided to pointedly ignore the text messages;
• he did not contact the respondent for an interview, at least to determine for himself what terms were on offer;
• he clearly understood the consequences of his actions; and
• as a member of the Drivers' Committee he failed to comply with the Resolution of Disputes Clause.

1. On that basis, the amount that I would award, in my discretion, would be the two weeks' pay in lieu of notice required by the Agreement.

ORDER

1. Staples Australia Pty Ltd shall pay to Mr Hugh Crowther a sum equivalent to two weeks' pay calculated on the basis of the weekly wage allocated to him by Crowther Logistics Pty Ltd.
2. The payment is to be made within 14 days of today's date.
3. Matter No 2015/128989 is hereby concluded. I Tabbaa AM COMMISSIONER DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 May 2018