Gregory Cartaar v Australia Post [2009] NSWIRComm 186 | Case summary

Gregory Cartaar v Australia Post [2009] NSWIRComm 186 | Case summary | Zoe

1 In an amended application filed under s 106 of the Industrial Relations Act 1996 (the Act), Gregory John Cartaar (the applicant) seeks orders declaring his contracts for the pick up and delivery of mail with Australia Post be void or varied as unfair, harsh or unconscionable or contrary to the public interest. The application asks for orders of just compensation under relevant award provisions or, alternatively, compensation just in the circumstance. Such orders, the applicant asserts, should reflect a fair rate of pay for hours worked; goodwill payments; reimbursement for expenses and overheads incurred; a termination notice payment; payment of accrued benefits of annual leave; and superannuation. 2 Mr A. Searle of Counsel appeared for the applicant and Mr R.S. Warren of Counsel appeared for the respondent. The hearing proceeded over four days and judgment was reserved after submissions were received. 3 At issue is whether the applicant was provided with less remuneration (as contended for the applicant) or that he has been overpaid (as the respondent contends) compared to an employee of Australia Post performing the same work as the applicant performed under the contracts, the subject of the proceedings. 4 Section 106 relevantly states: 106 Power of Commission to declare contracts void or varied (1) The Commission may make an order declaring wholly or partly void, or varying, any contract whereby a person performs work in any industry if the Commission finds that the contract is an unfair contract. (2) The Commission may find that it was an unfair contract at the time it was entered into or that it subsequently became an unfair contract because of any conduct of the parties, any variation of the contract or any other reason. (2A) ... (3) A contract may be declared wholly or partly void, or varied, either from the commencement of the contract or from some other time. (4) In considering whether a contract is unfair because it is against the public interest, the matters to which the Commission is to have regard must include the effect that the contract, or a series of such contracts, has had, or may have, on any system of apprenticeship and other methods of providing a sufficient and trained labour force. 5 The applicant's Amended Summons for Relief under s 106 detailed the asserted unfairness as follows: 46. The contract(s)... between the applicant and the respondent under which the applicant performs work in an industry was unfair, harsh and unconscionable and contrary to the public interest in that: (a) it provides a total remuneration that is less than a person performing the work would receive as an employee performing the work; (b) it failed to contain any reasonable provision to protect the applicant against conduct by the respondent that was itself unfair, harsh and unconscionable and against the public interest; (c) it operated in practice so as not to prevent the respondent from treating the applicant in a manner that could damage the relationship of trust and confidence between the parties; (d) at all material times the applicant was, in his dealings with the respondent, in a position of inferior and unequal bargaining power and the Contract failed to contain provisions that would correct this imbalance; (e) it operated in a manner to affect the applicant's legitimate expectations to be involved in deliberations about the future of the Contract and the Contract failed to contain provisions that would ensure the applicant was directly involved in deliberations about the future of the Contract in a timely way; (f) it operated in a manner that rendered any good will associated with the performance of the Contract nugatory and failed to contain provisions that ensured the applicant would be able to a(sic) least recover the payment in respect to goodwill that he made in order to acquire the work; (g) it vested in the respondent significant discretionary powers which were used to the substantial disadvantage of the applicant, particularly in the circumstances relating to the payment of the applicant under the Contract and the circumstances relating to the termination of the Contract and the Contract failed to contain provisions that would correct this imbalance; (h) it failed to contain provisions that would prevent the respondent from unilaterally varying or terminating the contract of employment without any or sufficient notice of the variation or termination of the Contract, or payment in lieu of notice.

History 6 The respondent is a body corporate constituted by the Australian Postal Corporation Act 1989 (Cth). It has responsibility for the supply of postal services within Australia and the carrying out of incidental business activities. The respondent engaged the applicant as a contractor to provide various delivery services in the regional district near and in Ballina. Under the contracts he was required to deliver parcels and depot bags, clear street post boxes and shuttle mail in the Ballina district. 7 The respondent called tenderers for three contracts to cover its pick-up and delivery service in the Ballina district. Applicants were supplied with standard Australia Post documents including a Tender Sheet, Conditions of Tender, Particulars of Service and a draft Mail Contractor Agreement to be executed between the respondent and the appointed contractor. The particulars of service document described the services to be performed under each contract, the estimated hours of work, the estimated distance to be travelled and the estimated workload. Prospective tenderers also submitted a tender price for the performance of the services. After assessing the tenders received, the respondent set a rate for remuneration and awarded the delivery of a parcels service contract, Contract 1116, for the clearance of street post boxes to a Ms Lynette Jarrett; Contract 1088, a shuttle of mail service contract, was also awarded to Ms Jarrett; Contract 1129, for shuttling mail between towns, went to a Mr Charles White. Agreements were subsequently executed between the respondent and these successful tenderers in May 2001. Each of these contracts were in the same standard form, differing only as to their Service Requirements. The contracts stated the remuneration under the contracts. Each of the successful tenderers commenced work under the contracts in July 2001. The contracts were for the period to end June 2006, that is, they were five year contracts. 8 In or around February 2002, the applicant saw an advertisement in a local newspaper, advertising two Australia Post delivery contracts for sale. These were Contracts 1116 and 1088 (the parcel delivery run and the post boxes delivery run) held by a Ms Lyn Jarrett. They were advertised for a cost to be paid to Ms Jarrett, the person who held the contracts with Australia Post, of $16,000. The applicant telephoned the advertised number and spoke with a Gary Michael (the partner of Ms Jarrett). Mr Michael was the person who was performing the contracts for Ms Jarrett. The applicant organised and went on trial runs with Mr Michael for two or three days. The applicant then expressed an interest in purchasing both Contracts 1116 and 1088. 9 On 14 February 2002, the applicant paid Mr Michael a $100 deposit and was provided with Ms Jarrett's copy of the contracts with Australia Post. On the same day, the applicant attended a meeting with Gary Eslick at the Australia Post Depot in Ballina. Mr Eslick is, and was then, the Manager of the North Coast Network of the respondent. Contracts 1116 and 1088 were, with the approval of the respondent, assigned to the applicant by Ms Jarrett. The applicant was given an "Assignment of Mail Approval Advice" document signed by the respondent (Mr Eslick) and Ms Jarrett for each contract. He had to begin performing the duties outlined in the contracts on 1 March 2002. The contracts were, therefore, for the remainder four and a quarter years of the term of each contract, assigned to the applicant to perform the duties required therein for the specified remuneration.

Timetable Monday - Friday Depart Ballina Post Office 2.48pm Arrive Ballina Post Office (unload) 3.58pm Arrive Ballina Post Office (unload) 4.18pm Estimated Hours: 7'30" weekly 390'00" yearly Estimated Distance: 45km daily 11,250km yearly Loadings: 4 - 5 No 2 Mail Bags daily from SPD's plus similar combined Loading from Lennox Head/East Ballina LPO; (1.5m3). Can increase to 2.5m2 pre Christmas. Vehicle: Light Commercial Van Note: Quays Drive not to be cleared prior to 3.00pm. 11 It was, therefore, represented to the applicant by the respondent through the assignment of the contract that the estimated hours for Contract 1088 would be seven and a half hours per week (7.5 hours). That is, the contract had an estimated 390 hours per year. The estimated distance to be travelled daily was 45 kilometres or 11,250 kilometres per year. The respondent, under the contract Assignment Approval criteria, agreed to pay the applicant $6,331.68 per annum for seven and a half hours work each week. 12 On 1 March 2002, the applicant was informed of the following adjustment to the contract which was called a "Per Annum Variation": ( i ) Depreciation/leasing - $958.32; ( ii) Other costs - $132.00; (iii) Total - $6,331.68 13 On 1 December 2002, the respondent varied the payments under Contract 1088, with a CPI increase. The $6,432.81 per annum yearly contract, he was informed, was based on the following criteria: ( i ) Depreciation/leasing - $958.32; ( ii) Fuel - $982.50; (iii) Other vehicle operating - $584.41; (iv) Labour - $3,775.58; ( v) Other costs of $132.00. 14 In the Christmas period of late December 2002 through to mid January 2003, the volume of work dramatically increased, with the applicant required to perform an extra 12 trips under the Contract 1088, travelling an additional 355 kilometres taking 14.5 hours of his time. On 14 April 2003, the applicant made a written submission for payment of an additional $4.84 an hour for this work. This request was denied by the respondent. 15 On 26 May 2004, there was a further CPI price adjustment of $204.49 making an annual package of $6,637.30: ( i ) Depreciation/leasing - $958.32; ( ii) Fuel - $1,049.54; (iii) Other Vehicle operation - $599.95; (iv) Labour - $3,897.49; ( v) Other costs - $132.00

Timetable Monday Tues-Fri Clear Mail/Load Delivery Centre 6.45 7.30 8.30 9.15 7.05 7.40 8.45 Arrive Ballina Retail Shop 7.00 7.45 8.45 9.30 7.20 7.55 8.45 Arrive Delivery Centre 7.15 8.00 9.00 ------ 7.35 8.10 ----- Estimated Hours: 6'45" weekly 351'00" yearly Estimated Distance: 22.4km Monday 16.0km Tuesday-Friday 4320.0km Yearly Vehicle: Light Van Note: Approved Fire extinguisher required. Timetable does not allow for paid breaks. Contract commences at Ballina Delivery Centre and terminates at Ballina Post Office. All categories of mail to be conveyed including the return of tubs/bags. Monday timetable applicable on Tuesday following a public holiday. 25 The applicant's remuneration under this contract was calculated on an annual basis at $6670.68 per annum. 26 On 1 August 2002, the applicant began his work for the respondent under Contract 1129. This contract required the applicant to collect mail and parcels from the respondent's Ballina delivery centre and shuttle these to the Ballina retail shop. This occurred four times on Mondays and three times on Tuesdays to Fridays. 27 The applicant again contends the amount of mail and parcels for delivery fluctuated greatly depending on the season. The applicant asserts that in order to perform the duties under the contract he had to work approximately 10.5 hours (on average) per week (not 6.75 hours estimated) and to travel an average of 93 kilometres (not 22.4 kms). 28 As at 1 August 2002, the applicant was notified of the following variations to Contract 1129: (i) Depreciation/leasing - $1,149.98; (ii) Other costs - $132.00. 29 On 17 December 2002, a variation was made to the contract by the respondent for a CPI adjustment. Payment was increased by $85.84 effective 1 December 2002, taking the annual remuneration to $6,756.54: (i) Depreciation/leasing - $1,149.98; (ii) Fuel - $1,176.45; (iii) Other vehicle operating - $700.21; (iv) Labour - $3,597.90; (v) Other costs - $132.00 30 On 1 April 2003, a further CPI adjustment was made by the respondent. Taking the annual remuneration to $6,971.59, comprising the following components: (i) Depreciation/leasing - $1,149.98; (ii) Fuel - $1,256.72; (iii) Other vehicle operation - $718.82; (iv) Labour - $3,714.07; (v) Other costs - $132.00. 31 On 25 November 2004, the respondent advised the applicant of an increase to the fuel component payment for Contract 1129 on account of a CPI adjustment effective from 1 October 2004, taking the annual remuneration to $7,108.55, based on the following components: (i) Depreciation/leasing - $1,149.98; (ii) Fuel - $1,393.68; (iii) Other vehicle operating - $718.82; (iv) Labour - $3,714.07; (v) Other costs - $132.00.

Dispute Between the Parties 35 During early November 2002, the applicant read an article in the newspaper which lead him to believe he may have been paid below any Award that may otherwise apply to a person performing the same work but as an employee of the respondent. Later, on 26 November 2002, the applicant approached Mr Eslick. The applicant suggests a conversation took place between the two men with words to the effect of: The rate that I am being paid by Australia Post for contracts 1129 and contract 1088 are not acceptable to me. I should be paid under the State Award and if you are not going to pay me correctly I am not going to pick up any extra bags and I will be sticking to exactly what was said in the contract. 36 On 27 November 2002, the applicant was called into the office by "Kelvin", a Manager in the Coffs Harbour area, to discuss what the respondent asserts was the applicant's "ultimatum". The applicant asserts he made notes of the conversation (it is noted the document is not signed by either party). The notes record as follows: About 8.10am. I was called into the office by Kelvin (one of the Coffs Harbour managers). He asked me to come into the office and discuss the ultimatum I gave them. I was then introduced to another manager called Greg. When I first walked in and was in the presence of Kelvin and Greg I asked them if I could have someone in with me so it wasn't two against one. Then Greg said "Yeah go right ahead ,(sic) go and get somebody". I asked them "who was the union rep?" Greg then pointed his finger at me and raised his voice and said "You are not in a union and could not be represented by a union person." Greg said "We can give you 90 days now or you can give us 90 days". He asked me "What was my problem?" I said "I want to be paid the award rate for the morning and afternoon runs I do". Greg said "You are not entitled to the award rate as you are not an employee". I then said "Well how do you interpret an employee? I work under your roof, I have the code to the depot, I use your equipment, I work under your rules and regulations and work under your guidelines". I said "Why don't you just pay me the award rate and be done with it". Greg replied "We do not have to pay the award rate- you knew what the contract was when you took it on - it stipulated that you work for yourself" Kelvin then said "It wouldn't matter if you loaded up here or down the road to us". Greg said they would not pay the award rate but they would get Garry to log the run as soon as possible and would pay me any extra that would incur on it. 37 I accept these notes reflect the conversation as Mr Eslick was then given responsibility for the re-logging of both Contracts 1088 and 1116 (Contract 1129 was at this stage, not in dispute). 38 In December 2002, Mr Eslick sat in with the applicant while he performed his runs for Contract 1088. This was a "re-logging". This resulted in the respondent offering to increase the payment to the applicant under Contract 1088 by a total of $1,425.46. The offer was rejected by the applicant. As to this Contract, Mr Eslick agreed: 76. Since the time Mr Cartaar was assigned Contract 1088, there were various changes which affected the mail run under this contract. This included increased mail volumes despatched from the East Ballina and Lennox Head Post Offices, increased traffic congestion on certain parts of the road, changed to motor vehicle laws which now required vehicles to be locked when parked, and new occupational health and safety requirements which restricted the weight of containers that may be carried (potentially necessitating more trips). These factors slightly increased the amount of time required to perform the services and the distance required to be travelled under Contract 1088. 39 In February 2003, Mr Eslick checked the run on Contract 1129 and an offer was made to increase the payment to the applicant for this run. Mr Eslick said: 79. Since the time Mr Cartaar was assigned Contract 1129, the Ballina Post Office began to sell more products. This resulted in an increased volume of mail and parcels needing to be shuttled approximately once every 4 to 6 weeks when the post office restocks its inventory, and consequently a greater amount of time to load and unload the items. 40 Around late 2002 or early 2003, the applicant also complained as to his workload under Contract 1116 but this contract was not re-logged. 41 After these re-loggings, around April 2003, the respondent sent correspondence to the applicant requesting a written response regarding the re-logging of Contracts 1088 and 1129 and their offers to increase his payments. The applicant's response reads as follows: Dear Sir

Applicant's Submissions 53 Generally the applicant submits the contracts were against the public interest and he should be perceived as an employee when finding appropriate remuneration. The applicant contends the contracts contained terms and conditions less favourable to the applicant than those which applied to employees under the relevant award, be it the Transport Industry (State) Award (for delivery drivers) or an Australia Post Enterprise Agreement (Commonwealth) (for driver/sorter). 54 The applicant in submitting there was an unfairness because he received less remuneration than he would have received as an employee performing the same work distinguishes this case from Autobake Pty Ltd v Budd (1986) 19 IR 18 noting in the circumstance this was a contract, in the nature of which, there could be no generated profit. The applicant therefore relies upon both s 105(c) and (d) to assert these contracts should be perceived as vehicles for avoiding provisions (just payment) under the relevant award(s) for an employee of Australia Post. 55 Alternatively, the applicant claims unfairness in the performance of the contracts given the estimates as to workload within each contract via the particulars of service. The particulars of service documents indicated an incorrect and consequently, unfair workload. The applicant was therefore underpaid. He should be awarded just compensation calculated using the relevant award(s) as a guide. The applicant recited a number of heads of claim to give foundation to his assertion he should be paid as an employee. 56 The applicant asserts a number of elements in the performance of the contracts established not only the unfairness contended but that he should be perceived as an employee which declaration would thereby attract employee benefits for him in accordance with award/enterprise agreement provisions. The unfair conduct asserted was: the contracts were not bargains freely entered into; the contracts failed to provide adequate remuneration for hours worked; there was a failure to adjust the contracts fairly for the known increase in the hours worked; there was a failure to provide an effective dispute resolution procedure; the contracts offered no profit for expenditure; access to a payment for goodwill on assignment of the contracts was withdrawn; there was a failure to allow re-assignment.

The applicant particularly presses his claim under s105(c) and (d). 65 The applicant firstly contends he was in effect a full-time employee of the respondent and given the hours he worked and the fact he worked for no other organisation, he should be paid the relevant statutory rate and all award conditions including overtime rates, and accrued benefits for his four and a half years of service with the respondent as its mail/parcel delivery employee. The applicant relies upon either the rates in an Australia Post Award (Commonwealth) or a Transport Award (State) on which to base his remuneration claim. 66 In Stewart v All-Fect Distributors Limited and Ors [2006] NSWIRComm 195 at [81] Boland J, President, in considering whether the applicant was a contractor or employee, adopted the criteria recited in Abdalla v Viewdaze Pty Ltd (2003) 122 IR 215 where the Full Bench of the Australian Industrial Relations Commission considered the indicia applicable to the determination as to whether a worker was an employee (for the purpose of applying the termination of employment provisions). The Full Bench adopted the view expressed in Hollis v Vabu (2001) 207 CLR 21 and stated at [34]: ... (1) Whether a worker is an employee or an independent contractor turns on whether the relationship to which the contract between the worker and the putative employer gives rise is a relationship where the contract between the parties is to be characterised as a contract of service or a contract for the provision of services. The ultimate question will always be whether the worker is the servant of another in that other's business, or whether the worker carries on a trade or business on his or her own behalf: Marshall v Whittaker's Building Supply Co (1963) 109 CLR 210 at 217 per Windeyer J approved by the majority in Hollis v Vabu (2001) 207 CLR 21 at 39; 106 IR 80 at 92; see also Brodribb per Wilson and Dawson JJ at 37. That is, whether, viewed as a practical matter, the putative worker could be said to be conducting a business of his or her own: Hollis v Vabu (2001) 207 CLR 21 at 41-42, and 45; 106 IR 80 at 93-94, and 97. This question is answered by considering the totality of the relationship: Brodribb esp Mason J at 29. 67 In Stevens v Brodribb Sawmilling Company Pty Ltd (1985) 160 CLR 16, consideration was given to the various "indicia" which indicia would assist in determining the nature of the relationship of the worker and principal "bearing in mind that no list of indicia is to be regarded as comprehensive and the weight to be given to particular indicia will vary according to the circumstances." Those indicia were then posed in Abdalla v Viewdaze Pty Ltd in the form of the following questions which questions guide the Court in its consideration as to whether an individual is an employee or an independent contractor: · Whether the putative employer exercises, or has the right to exercise, control over the manner in which work is performed, place of work, hours of work and the like: · Whether the worker performs work for others (or has a genuine and practical entitlement to do so); · Whether the worker has a separate place of work (Brodribb per Wilson and Dawson JJ at 37) and/or advertises his or her services to the world at large; · Whether the worker provides and maintains significant tools or equipment (Brodribb per Mason J at 24); · Whether the work can be delegated or subcontracted: (Brodribb per Mason J at 24); · Whether the putative employer has the right to suspend or dismiss the person engaged: (Brodribb per Wilson and Dawson JJ at 36); · Whether the putative employer presents the worker to the world at large as an emanation of the business: Hollis at [50]; · Whether income tax is deducted from remuneration paid to the worker: (Brodribb per Mason J at 24; Wilson and Dawson JJ at 37); · Whether the worker is remunerated by periodic wage or salary or by reference to completion of tasks: (Brodribb per Mason J at 24); · Whether the worker is provided with paid holidays or sick leave as to paid holidays: (Brodribb per Mason J at 24);· · Whether the work involves a profession, trade or distinct calling on the part of the person engaged: (Brodribb per Wilson and Dawson JJ at 37); · Whether the worker creates goodwill or saleable assets in the course of his or her work: (Brodribb per Wilson and Dawson JJ at 37); · Whether the worker spends a significant portion of his remuneration on business expenses: (Brodribb per Wilson and Dawson JJ at 37). 68 In its consideration as to the status of the applicant, the Court gives consideration to the facts as established on the evidence. The applicant signed three separate contracts for the provision of a delivery service. The work of the applicant was supervised by Mr Eslick although Mr Eslick did not always have ultimate control, demonstrated when the applicant felt able to refuse to perform some tasks. However, from the particulars of service under each contract, there was some control over the hours of work in which he performed each service. The applicant also performed some taxi driving work. The hours he performed the taxi work are unclear. He declared his income from that work. The applicant, after being re-assigned Contract 1129, spent all his working day performing the delivery service for Australia Post. Until Contract 1129 was re-assigned, the evidence persuades the applicant was looking for more delivery work. He saw himself as an independent contractor able to bid for more work. The applicant maintained his own vehicle and organised his own sub-contractors. There was no evidence he was required to carry an Australia Post logo on (for example) his vehicle. He managed all his own financial affairs (tax, holiday time off, expenses, roster of back-up driver). There were no benefits paid to him (sick leave, superannuation). 69 The applicant bases his claim that he was an employee of Australia Post on his own evidence with the supporting evidence of Peter Chaloner, an organiser with the CEPU/Postal and Telecommunications Branch from 2002. The applicant said: With respect to the work that I performed for the respondent under contract 1088 and 1129, I would see employees of Australia Post performing the same or similar work. For instance, in Ballina during the period of March 2002 onwards, I observed two Australia Post employees, whose first names are "Bill" and "Glenda" performing a shuttle service between Ballina, Lismore and Casino. Also, I regularly saw Australia Post employees who worked out of the Ballina Delivery Centre have Express Post, small satchels and parcels placed in their area for delivery along with the normal post. On another occasion, in October 2005 I saw an Australia Post employee, driving an Australia Post vehicle who was emptying boxes in the Sydney, CBD. I approached this person and a conversation in words to the following effect took place:

Mr Chaloner also provided for the Court, the various rates for a sorter/driver under Australia Post Enterprise Agreement. 71 Mr Richards, on behalf of the respondent, replied to the applicant's and Mr Chaloner's assertions the work the applicant was performing was performed by employees of Australia Post: 19. There is no single Australia Post employee working anywhere in NSW who performs the same work performed by the applicant between March 2002 to July 2002. That is, no employee shuttles mail, delivers parcels and depot bags and also collects mail from street post boxes and post offices. 20. There is also no single Australia Post employee working anywhere in NSW who performs the same work performed by the Applicant between August 2002 to June 2006. That is, no employee shuttles mail, delivers parcels and depot bags, and also collects mail from street post boxes and post offices. 21. There are important operational reasons why Australia Post does not and would not employ an employee to perform the work performed by the Applicant. I shall explain each of the reasons below. ... 25. ... (a) With respect to the alleged delivery and pick up of parcels and bulky packages from business customers in metropolitan Sydney, I say that this only occurs as part of a service provided by Australia Post to high volume commercial customers to pick up mail items in bulk from the customers' premises (which may include letters, express post packages, and parcels) and then to transport the items to relevant Australia Post facilities for processing; (b) Australia Post employees do not deliver parcels in the manner required of the Applicant under Contract 1116; and (c) the Applicant did not collect parcels from any customers under Contract 1116 in the manner described by Mr Chaloner. 72 Mr Eslick the Australia Post supervisor who oversaw the delivery performance of the applicant says of the work Mr Cartaar performed: 98. From my knowledge of the work performed by Mr Cartaar under his contracts, I can say that Mr Cartaar did not perform the following tasks which form part of the driver/sorter position as part of his work under his contracts: (a) Undertake manual sorting of postal articles at a mail processing facility using geographical knowledge, postcode and other sorting cues of mail for intrastate, interstate and in some cases, overseas destinations or private boxes, private bags and postal delivery officer rounds. (b) Operate mail processing equipment, eg post marking machines, OCR, LPL etc. (c) Operate mail handling equipment, including conveyor, loading and lifting devices and upon successful completion of specified training, fork lift trucks. (d) Prepare and assemble mail for despatch, including the tie-off of mail and provide assistance in despatching mails. (e) Assist in specialist procedural work associated with unpaid mail, special services, bulk mail lodgements, Mail Redistribution Office, bag room (including ULDs etc) activities etc. (f) Face up, both manual and mechanised mail preparation distribution to processing points. (g) Assist in the provision of on the job training for trainee mail officers. (h) Assist in the provision of customer service. (i) Undertake general duties such as the preparation of ULDs, bag racks, labels, stores and document distribution etc. (j) Maintain related records and documentation. (k) Assist in the performance of specialist functions, eg rosters, timekeeping, statistics projects etc. 73 The applicant pressed a claim under s 105(c) and (d): that is, he asserted the contracts were unfair as they each provided a total remuneration less than that of a delivery driver employed by Australia Post or alternatively that his contracts avoid the provision of the relevant industrial instrument (be it a State or Commonwealth award/instrument). The purpose of s 105 of the Industrial Relations Act, has been given much legal analysis. 74 In Spicer v Clifford [1969] AR (NSW) 273 (at 279) the section (or similar sections under the 1940 Act) has been held to be indicative of "a legislative policy of preventing the by-passing of industrial awards." Further, Mozzoni v Dean [1970] AR (NSW) 1 when considering a similar provision in the 1940 Act, it was held (at 6): and ... there was no chance of his receiving remuneration equal to what an employee in the industry would have been entitled by law, by the award, to have received.

Hours of Work 78 The respondent submits the applicant did not plead as to unfairness in respect to hours worked, therefore, there should be no consideration as to unfairness under this concept. The respondent also contends there could be no finding of unfairness in relation to time in each contract as the applicant was informed the "time" under each contract was susceptible to changes, that is, when a time was stated in the contract it was stated generally to be an "estimate". The respondent further asserts there is no right for the applicant to rely upon the total number of hours worked as he was performing delivery services under three separate contracts, each contract with differing duties and each of which was a fair contract. The fact that together the applicant chose to work long hours is not a relevant issue the respondent asserts. 79 However, the respondent also acknowledged a significant part of the evidence from the applicant, not objected to during the hearing, was advanced on this issue. I note the respondent addressed this evidence by the calling of expert evidence to rebut the applicant's contentions. I accept the failure to pay proper remuneration for the hours worked was a pleaded unfairness in the litigation and not one which takes the respondent by surprise. An examination of the original correspondence from Mr Cartaar reveals he was claiming, in a letter dated 14 April 2003, an hourly rate of $18.70 for his service and Australia Post offered an hourly rate increase to him. 80 Mr Eslick agreed he set the particulars of service document which outlined the estimate of the hours worked and the distance to be travelled under Contracts 1088 and 1129 which particulars he verified by travelling the delivery runs. Under Contract 1116, he used information supplied to him by another contractor rather than his own personal assessment. He acknowledged since the contracts were issued, there had been a new sub-division added to the Ballina area and therefore Contract 1129 had been affected (in the area to be covered) by the redrawing of a prior mail contract. He conceded the workloads had increased in all contracts and did require longer hours of work to perform the duties under each contract by the applicant. 81 Mr Eslick noted he did not, however, set the payment rates for any contract. The rates were set in the respondent's office at Coffs Harbour. 82 I am satisfied, through the pleading in the Amended Summons for Relief, which pleading asserted an unfairness in the payment for work performed that the respondent was on notice the remuneration the applicant received for his hours of work was an issue between the parties. Further, under [3] of the Amended Summons for Relief, the applicant clearly sought the following orders: An order varying the written contracts between the applicant and the respondent whereby the applicant performed work in an industry to include the following terms: (a) In consideration of the contractor performing services under this Agreement, Australia Post must pay the contractor the Contract Fee provided that the Contract Fee in any month must include a component for labour that is no less than the amount of total remuneration that Australia Post would have paid to an employee performing the same or similar work as the contractor in addition to the other components and amounts provided for the Contract. (b) An order that the respondent pays the applicant for all hours actually worked and kilometres actually driven in connection with the performance of the contract. 83 Therefore, I am satisfied the respondent was on notice the hours worked were integral to the applicant's claim for fair remuneration/just compensation. 84 Under the three contracts the applicant, by June 2002, had applied for and was contracted by the respondent to perform three different types of pickup and deliveries of parcels and mail, which deliveries, on the respondent's initial estimate, would take, under Contract 1008 - 7.5 hours, under Contract 1129 - 6.75 hours and under Contract 1116 - 17 hours. Therefore, by June 2002 the respondent expected the applicant to perform his duties with the continuation of the contracts for some 31.25 hours. That was before the respondent varied or added any further duties. 85 The respondent has conceded in evidence new sub-divisions were added to the applicant's runs; that the respondent expanded its business division which expansion required a greater volume of pickup and deliveries; and that the standard rules for safe working added to his work time. 86 In November 2002, the applicant lodged a complaint as to his increased workload which led to an increased number of hours required to perform his duties under Contracts 1088 and 1129. He complained about his remuneration under each of the contracts. At the time (at least by February 2003) Mr Eslick, the respondent's officer, aware of the applicant's complaint, re-logged two contracts. He confirmed Contract 1088 was not taking 7.5 hours but 7 hours and 53 minutes. As to Contract 1129, not 6.75 hours but 9 hours and 53 minutes. As to Contract 1116, there was no re-recording of the hours required to perform this contract at this time but I am satisfied a complaint had been lodged to Mr Eslick about the conduct of that contract by February 2003. 87 After the re-logging, Mr Cartaar continued to complain. The respondent offered some increase in payment but the applicant did not agree to the increase offered. Mr Cartaar was then advised (in accordance with the contract) to notify a dispute. 88 A dispute was notified by the applicant at the end of 2002 related to Contracts 1088 and 1129 and later in Contract 1116, which dispute continued and evidence revealed some animosity developed between the parties (for example, Mr Cartaar refused some pickups and the respondent wrote letters reprimanding him as to his chosen vehicle). Mr Cartaar, over a one week period in August 2005, re-logged and kept a record of all his runs including the time taken, the hours of work and the distance travelled. 89 The Log of Run for Contract 1088 (August 2005) reads: Date Start Finish Hours Kms Mon 15.08.05 2.45pm 4.40pm 2 45 Tues 16.08.05 2.45pm 4.40pm 2 45 Wed 17.08.05 2.45pm 4.40pm 2 45 Thurs 18.08.05 2.45pm 4.40pm 2 45 Fri 19.08.05 2.45pm 4.40pm 2 45 Total 10 225

Remuneration 98 The respondent asserts it varied the contracts for the purpose of fairness. It increased the rate of pay under Contract 1129 by approximately 24.5 percent and Contract 1088 by 13 percent. It made further offers to increase payments to the applicant for the above two contracts, which offers were rejected. Further, it took away the section of deliveries from Lennox Head to East Ballina under Contract 1088, without a reduction in the contractual price. It also increased the parcel rate under Contract 1116 from 70.31c to 78.68c over the life of the contract. In all, the respondent contends, the contracts were fair from the applicant's assignment and continued to be fair throughout their lifespan (especially in a circumstance where the applicant offered fair remuneration even if that remuneration was not accepted). 99 From November 2002, the applicant complained to the respondent regarding the workloads under Contracts 1088 and 1129, stating that the estimates of hours to be worked to perform the contracts (as contained in the particulars of service) were inaccurate and he was, therefore, not being properly remunerated. Mr Eslick re-logged the duties under Contracts 1088 in November 2002 and Contract 1129 in February 2003. These re-loggings provided evidence the workloads under each contract had increased and therefore, there was an increase in the hours worked. 100 In accepting the workloads under Contracts 1088 and 1129 were increased, the respondent asserts both contracts were for part-time work and the monies paid were increased in accordance with CPI adjustments. The respondent after the re-logging the contracts, made further offers to the applicant, which offers, the applicant did not accept. The respondent asserts the applicant's conduct was unfair in not accepting the offers to increase his rates of pay for his hours worked. The applicant was offered a payment increase under Contract 1088 of $1425.46 a year and under Contract 1129, $1199.25 per year. These offers were rejected by the applicant. The respondent had varied the contract by requiring more time spent to perform the service. However, it is trite law to recite that variations to contracts within the terms of the contract, require agreement between the parties. It is a basic principle of contract law that terms have to be agreed. While the applicant agreed to perform the extra hours work, he did not agree to the offered remuneration, yet he was still required to perform the extended duties. 101 Offers to the applicant in the conduct of the contracts relied upon by the respondent were: · Under Contract 1088 there was an offer to increase the time by 23 minutes per day (115 minutes per week), with a subsequent pay increase from February 2003. · Under Contract 1129, the respondent made an offer for an increase in time and pay of 2 hours and 15 minutes per week, this offer was made around March 2003. It was asserted if those payments were accepted, the applicant would have been paid relative to how much time was spent to perform each contract. · Under Contract 1116, the applicant received per parcel an increase in the parcel rate from 70.31 cents to 78.68 cents during the life of the contract. 102 How the rates were struck for the hours of work required under each contract was not been established on the evidence. Tenders had been called for each contract. The rates were stated in the contracts when issued. Mr Eslick said he did not know how the rates were determined, although he thought it was a decision by the Area Manager at Coffs Harbour. Mr Richards had no knowledge as to how the rates were set. There was some evidence the tenders for the contracts were given consideration, however, there was no evidence as to whether Ms Jarrett or Mr White, the persons to whom the original contracts were issued by the respondent were paid at the rate they offered on tender. Under Contract 1129, the payment for this service was different and instead of a set rate for hours worked, it was at a parcel rate. 103 The evidence satisfies by March 2003, the respondent knew that while it originally estimated, under Contracts 1088 and 1129, it would take some 14.5 hours to perform the services, the contracts, in fact, took 20 hours. While the respondent made offers to increase his rates under these contracts, they were not accepted. From 2003 to 2005, the applicant continued to press for further increases in his rates given the increased workload. 104 When Contract 1116 was re-logged by Mr Eslick in October 2005, there was an acknowledgement the delivery time had increased from 17 hours, as originally estimated, to 27.5 hours. The rate of pay (as per parcel pickup) under this contract, had increased over the four years and six months, from 70.31 cents to 78.68 cents. Such an adjustment in the parcel rate, the respondent asserts, compensated the applicant for the additional time required for the increased delivery number of parcels for delivery (from 22,000 to 36,000).

Fairness: Conclusion 122 While I am not satisfied the applicant performed his duties to the approval of Australia Post under each contract especially in a circumstance where the dispute as to remuneration built up without resolution. I do not find the evidence establishes Mr Cartaar breached terms of his contract or the examples of his unsatisfactory performance relied upon by the respondent are sufficient to persuade, balancing the interests of both parties, the contracts should be found to be fair. 123 I find in the performance of Contracts 1088 and 1129, there was an unfairness. I find on the evidence while those contracts were at inception fair (I accept, Mr Eslick attempted to prepare fair particulars of service), they became unfair due to the increased workloads required under the contracts by Australia Post. I accept the applicant's logging on the work in 2002, under Contract 1088 and Mr Eslick's logging of Contract 1129 in 2003 together with the re-logging by both the applicant and Mr Eslick in 2005 (of each contract) revealed a dramatic increase in the time worked and workloads carried under each contract. The re-loggings revealed the estimates in the particulars of service for each contract became unfair in the performance of the contracts when the respondent varied the contracts by increasing the workloads under each contract without fair remuneration. 124 Contracts require agreement between the parties for variation. The respondent imposed variations on the applicant by adding to the geographic areas to be covered for the performance of the contracts (to those contained in original contracts) and thereby placed an increased workload on the applicant which required increased work time by the applicant. The respondent had to have an agreement with the applicant if those workloads were to be increased as to his fair remuneration. The respondent relies on the fact it made offers to increase the remuneration under Contracts 1088 and 1129. There was no obligation on the applicant to accept those offers and he, in accordance with the contractual terms, notified a dispute which was, however, from 2002 to 2006 continuing without the respondent's nominated dispute procedure being even effectively activated and which clearly did not perform its task of finding a resolution to the dispute. 125 I further accept the conduct of the respondent in its implementation/variation of the goodwill clause in the contract was unfair. 126 I find there was therefore an unfairness by the respondent in the performance of these contracts.

Section 106 Compensation 127 Having declared there has been an unfairness in the conduct by the respondent in the performance of these contracts, I order variations to the contracts and determine variations should be reflected in payment of just compensation under s 106. Section 106 (5) and (6) of the Industrial Relations Act 1996 relevantly states: (5) In making an order under this section, the Commission may make such order as to the payment of money in connection with any contract declared wholly or partly void, or varied, as the Commission considers just in the circumstances of the case. (6) In making an order under this section, the Commission must take into account whether or not the applicant (or person on behalf of whom the application is made) took any action to mitigate loss. 128 The respondent asserts if there is to be any consideration of compensation, the Court should view the contracts as separate, part-time contracts. However, each contract had the purpose of ensuring the pickup/delivery service of mail and parcels for Australia Post in the Ballina area. Australia Post chose to contract with one contractor and through three separate contracts, organised its postal service for the pickup and delivery of mail in the Ballina area. In effect, Australia Post had one arrangement for the pickup and delivery of mail and parcels in the area. I consider the combined affect of the three contracts should be considered as one arrangement for the purpose of determining fair compensation. 129 Mr Kelly, an employee of the respondent and the nominated expert relied upon by the respondent as to the asserted loss claimed by the applicant, bases his evidence and calculations on the actual total payments made by Australia Post to the applicant during the life of the contract. Mr Lee, the financial expert relied upon by the applicant, challenges Mr Kelly's view of the claims asserting all his opinions were based upon a miscalculation. The applicant challenges Mr Kelly's opinion asserting he overstated the applicant's income from Australia Post because as an asserted expert (which was not conceded by the applicant) he had not made allowance for the fact the total of payments received by the applicant from the respondent included payments of GST and also included the costs necessarily incurred for the earning of income under the arrangement. 130 I accept the proposition, for the purpose of determining the issue of compensation, the Court should take into consideration the total number of hours worked (on average) under each contract and to determine what is just compensation based on those average hours worked. That average number of hours worked, I accept as the average number hours worked under an arrangement made by the respondent for mail pick up and delivery in the Ballina district. 131 For the purpose of just compensation, I accept the respondent's submission Mr Eslick's 2005 re-logging of the contracts was performed on only one day. It demonstrated the applicant's work took some 44.67 hours per week. I accept the applicant worked 44 hours per week on average. 132 I also take into account the earnings of the applicant as identified through his tax returns. There was no attack mounted by the respondent on those figures. Much financial analysis was presented to the Court based on the applicant's tax return by the expert witnesses representing both the applicant's and respondent's interests. However, their conclusions were predominantly directed towards that part of the applicant's claim in which he asserted he should be remunerated as an employee under an Australia Post Enterprise Agreement as a driver/sorter or under the Transport (State) Award as a delivery driver. I have not accepted the proposition the applicant was an employee. However I have accepted the applicant has been unfairly remunerated for the hours he was required to perform the duties under the arrangement he had with the respondent. Therefore I take into account the total income the applicant received over the 4.5 years for his hours of work. 133 The respondent's calculations, based on the applicant working 31.5 hours per week, do not give great assistance as the evidence establishes Mr Cartaar was working some 44.67 hours per week (as confirmed by Mr Eslick). Mr Kelly conceded his calculations were based upon the assumption Mr Cartaar was only required to work 31.25 hours per week. I, therefore, reject the proposition of Mr Kelly that the applicant earned more than he would have under the Transport Industry (State) Award. 134 From the evidence, to determine a just hourly rate which should have been paid to the applicant as an independent contractor, I use as a guide, the Australia Post Enterprise Agreement 2001 and 2004-2006 and the Transport Industry (State) Award (with adjustments). The applicant has nominated the relevant grade. Taking these as guidance, I note under the Australia Post Agreement an employee would have earned $15.51 per hour from April 2003 to $17.20 an hour by June 2006 and under the Transport Industry (State) Award, between $13.86 per hour up to $15.25 per hour in 2006. 135 Persons working under these arrangements would have been provided with a vehicle by the employer and would have enjoyed a superannuation contribution from the employer as well as their basic pay rate. 136 I therefore accept the applicant's true earnings should be calculated less his GST payments and less expenses incurred (I agree with Mr Lee from an examination of the applicant's tax returns the expenses he claimed were predominantly that of motor vehicle expenses). I adopt Mr Lee's calculations that over the life of the arrangement, the applicant was allowed $75,011 for the deductions made in conducting his business of a pickup and delivery service. I also adopt his calculations of GST deductions as $14,656. A further deduction to Mr Cartaar's income was that declared as earnings from driving a taxi in 2003 - $6392; in 2004 - $8808; in 2005 - $6823 and in 2006 - $5036. 137 I accept, therefore, with the further adjustment for unrelated expenses, the applicant in 2002 suffered a loss of $214 but earned a profit in: 2003 of $12,564 2004 of $16,636 2005 of $18,933 2006 of $23,221 138 These figures reveal the applicant's earning without the costs of running a car and without GST and any superannuation payments and allow therefore a comparative hourly rate to be estimated for his labour. That hourly rate can then be compared to the hourly rate a full-time employee would have been paid. 139 Doing the best I can (taking into account Contract 1116 was paid at a parcel rate which was increased from 70.31c to 78.68c per parcel during the life of the contract and as the parcel load increased so too did the applicant's earnings), I determine a fair rate of pay per hour to the applicant would be:

Gregory Cartaar v Australia Post

At a glance

Court

Decision date

Before

Source

Judgment (96 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (8)