National Road Transport Association (NatRoad) – application to register as a separate organisation [2017] NSWIRComm 1038

Legislative scheme

1. Section 217 of the Act relevantly provides: 217 Organisations capable of applying for registration (1) Any of the following organisations may apply to the Industrial Registrar to be registered under this Chapter: …………….. (c) an organisation of employers that is incorporated under the Corporations Act 2001 of the Commonwealth, Associations Incorporation Act 2009 or any other Act, other than a federally registered organisation (a "separate organisation" ).
2. The criteria for registration are set out in section 218 of the Act. Those parts of section 218 which are relevant to NatRoad's application for registration as an organisation of employers are set out below: 218 Criteria for registration (1) The Industrial Registrar is to grant the application for registration if, and only if: (a) the organisation is a genuine organisation of a kind that is capable of registration under this Chapter, and (b) the organisation is an organisation for furthering or protecting the interests of its members, and (c) the organisation is capable of representing its members in connection with industrial matters, and …………………. (e) in the case of an organisation of employers - the organisation has, at the time of registration, at least 2 members who are employers and those members employ between them at least 50 employees, and (f) the rules of the organisation make provision as required by this Chapter to be made by the rules of such an organisation, and …………………. (2) An organisation may be registered even if its members include: (a) officers of the organisation, or (b) in the case of an organisation of employers - persons other than employees who carry on business but who do not have any employees, or (c) in the case of an organisation of employers - persons admitted to membership who have ceased to be employers, or ……………………. However, an organisation with any such members may be registered only if it is effectively representative of the members who are employees or employers, as the case requires.
3. Section 220 of the Act provides that any person may lodge with the Industrial Registrar a notice of objection to an application for registration.

TWU objection

1. The TWU objects to the registration of NatRoad as an organisation of employers on the following grounds: 1. NatRoad does not have a registered office in New South Wales (s.224); 2. There is no evidence that NatRoad is capable of representing its members in connection with industrial matters. There is no evidence that any of NatRoad's members continue to be within the jurisdiction of the New South Wales industrial relations system (ss.218(1)(c)). 3. There is no evidence that NatRoad had, at the time of its application for registration, at least 2 members who are employers and those members employ between them at least 50 employees (ss.218(1)(e)). 4. NatRoad takes as members who do not have employees, in particular, contract carriers (owner-drivers). The Commission cannot be satisfied that NatRoad is effectively representative of its members who are employers (ss.218(2)).

ARTIO objection

1. ARTIO's objection relies upon the same grounds as that of the TWU, referred to paragraph 11 above. In addition, ARTIO relies upon the following grounds of objection: 1. Clause 26.2 of its Constitution provides NatRoad with a power to pay interest up to a prescribed level on loans. However, the Constitution does not provide any rules relevant for compliance with subsections 280(1) and (4) of the Act, contrary to subsection 218(1)(f). 2. NatRoad has not lodged audited financial statements with its application for registration, contrary to subsection 292(b) of the Act.

Evidence in support of NatRoad's application

1. Warren Clark is the Chief Executive Officer and Company Secretary of NatRoad. A witness statement prepared by Mr Clark was tendered into evidence. In his witness statement Mr Clark stated as follows: 5. NatRoad is a national industrial association which has operated continuously since 1948. It has members in every Australian State and Territory. 6. NatRoad principally represents members who are owners and operators of road transport businesses and has members ranging from owner-drivers to national fleet operators. 7. NatRoad has approximately 600 members based in New South Wales (NSW). 8. NatRoad is a company limited by guarantee which was registered under that name with the Australian Securities and Investment Commission (ASIC) in 1994 (the ASIC registration). 9. Historically, NatRoad, under a former name, the Long Distance Road Transport Association (LDRTA) was registered under both Chapter 5 and Chapter 6 of the IR Act. 10. I understand that the Chapter 5 registration lapsed prior to NatRoad's ASIC registration in 1994. ……………… 19. NatRoad was formed in 1948, as the Long Distance Road Transport Association (LDRTA), to protect and further the interests of its members. 20. In its various incarnations over time, NatRoad had continuously sought to do so. 21. The objects of NatRoad are described at Clause 4 of its Constitution (the Rules). Those objects include: (There were then listed the objects of NatRoad as set out in clause 4.1 of the Constitution, which objects are typical of an industrial organisation) ………………….. 23. NatRoad has historically, and still currently, routinely represents its members in 'industrial matters' or matters or things affecting or relating to work done or to be done in any industry, or the privileges, rights, duties or obligations of employers or employees in the industry: section 6(1) of the IR Act. 24. By way of example, NatRoad represents its members in unfair dismissal, unlawful termination, and discrimination matters, participates in award review proceedings, provides alternative dispute resolutions services. 25. NatRoad also makes representations to government and business in respect of work and employment concerns, and also advocates for change to the laws governing the road transport industry (e.g. the Heavy Vehicle National Law) by doing things like participate in relevant committees, including the Heavy Vehicle Maintenance Advisory Group. 26. Of NatRoad's more than 600 NSW-based members, many of our employer members have more than 40 employees. By way of example, we have members throughout metropolitan and rural NSW who report having 80, 50, 45, 103, 101, 300, 250, 43, 53, 203, and 90 employees. …………………… 30. NatRoad's board or committee of management includes as officers, people who are also members of NatRoad: section 218(2)(a). 31. NatRoad's membership also includes a number of people who carry on business but are not employees and which do not have employees, specifically our owner-driver members: section 218(2)(b). ……………………. 33. Despite having members who are on the Board and also owner-driver members, I believe NatRoad is able to effectively represent both its employer or owner-driver members. 34. Effective representation of all members across the spectrum, is promoted by the fact that our Board includes both owner-drivers and employer members who are equally able to put raise any concerns that relate particularly to their own operations, be they owner-driver, small mum and dad, or large national transport companies. 35. NatRoad also operates a number of sub-committees which give its members a voice and importantly, at its annual conference, seeks specific input from its members about the sorts of industrial and other matters it wants the association to particularly focus on other (over) the next 12 months. In other words, members have significant input into our work program.
2. Mr Clark gave the following evidence in chief: Q. My colleagues have also expressed concern that NatRoad had members who are both employers and also non-employers, such as owner drivers or what is also sometimes referred to as contract carriers, as members. Can you tell me what sorts of things NatRoad does to ensure that the views of all those members are fairly represented and also that representation of its employer members are not compromised? A. Okay. Well I believe that's in our constitution but also it sits within the board because we have a representative of owner drivers on our board and a representative of larger fleet operators on our board. Q. To the best of your knowledge has there ever been a conflict of interest in relation to differences between those owner driver or non-employer entity members and employer members? A. No.
3. During the cross-examination of Mr Clark, the following exchanges occurred: Q. And you said there's approximately 600 members in New South Wales, is that correct? A. Yes-- Q. Now how many of those 600 members are actually employers? A. To the best of my knowledge they all employ people - no they don't all employ people because we have larger operators and owner drivers. Q. So some of them would be employers in the true sense of the word so they have employee drivers-- A. Definitely, yes-- Q. --and some of them would be owner drivers? A. Correct. Q. How many do you think would be owner drivers? A. I'd say a majority of our members in New South Wales are owner drivers. Q. Okay. At a rough guess, so do you think maybe out of that 600 you'd have 100 employers? A. I'm just trying to think, I'd say there's probably a bit more than a hundred. Q. A hundred and fifty? A. Yeah, there wouldn't be any more than a hundred and fifty - …………………….. Q. That would be good. I think Ms Ballard asked you some questions about potential conflicts because your membership has employers and also owner drivers. Do you recall there was a series of questions about that-- A. Yeah. Q. --Ms Ballard asked you? Now, and correct me if I'm wrong, but I'm assuming that some of those employers that you have that have employee drivers also engage owner drivers? A. Yeah. Q. And they may well engage some of the owner drivers who are members of yours? A. Yes. Q. So in relation to this conflict issue, if your owner drivers said to you, "We want an increase. We support an application by whoever in relation to the transport industry general carriers contract determination to increase the rates of pay," but your principal contractorship members, so the guys that engage the owner drivers, they want you to oppose it. How do you deal with that conflict? A. That's a board decision. Q. It may well be a board decision but how do you deal with it? A. They decide it as a board. That's not my decision. Q. Is the result that you would have one part of your membership arguing with another? A. That's how a board works. Q. No, no. What I'm asking you is how would you engage - how would you deal with the membership that wanted the increase as opposed to the membership who didn't want the increase? A. Okay, well, it's called debating, negotiation and compromising. That's how we, as a board, works. Q. And how would you appear before this tribunal, assuming you could and you were successful with some form of registration, how would you appear before this tribunal and deal with your instructions? Because obviously you'd have - you'd accept the fact that you'd have a split in the camp? A. That's correct, yeah. Q. So does that mean that you would appear for one part of the organisation and not the other? A. Well, we've got quite a varied organisation and I think you'd probably agree we can't make everyone happy, but what the members do is they elect a boar and the board represents their best interests, the same as every other company. Q. And you're totally aware that the application you've made today is to be registered as an organisation of employers. You're-- A. That's correct. Q. That's your understanding? A. Yeah. ………………… Q. We're right in understanding that those 600 members who you claim to have would either be employers, that is, they're transport operators who employ drivers and presumably other staff, administrative staff and the like. Correct? A. Yeah. Q. That's one class? A. Yeah. Q. I think you agreed when Mr Baroni asked you that that class, those transport operators, are likely, maybe not in all cases, but in most cases to also engage independent contractor owner drivers? A. Yes, they can do. Q. Would that be in all cases or most cases? A. Well, it depends really. I think that would be pretty hard to determine because - I don't know because it varies from business to business. Q. You'd accept it would be likely that most of the transport companies, fleet operators who are your members would engage some independent-- A. I would-- Q. --contractor owner drivers? A. --think so at some stage, yes. Q. And some of them also engage employee-- A. Yes. Q. --drivers-- A. Yes. Q. --as you understand it? All right. The second class of membership is the owner drivers you've referred to, correct? A. Yes. ……………………. Q. I'll start again. You have a number of - I think the majority of your members, you've said, are owner drivers in New South Wales, correct? A. Yes, yep. Q. Those people perform work, as I think everyone here knows, by entering into contracts-- A. Yep. Q. --of a various type with a principal contractor. Correct? A. Yep. Q. And this commission has some jurisdiction with respect to those contracts under chapter 6. Correct? Do you understand that? A. Yep. Q. Is it your understanding that the intention of or at least part of the intention of NatRoad in making this application which is presently before the commission is to assist it, NatRoad, in representing those members, the owner drivers, in relation to the contracts they have with principal contractors? A. No. …………………….. Q. Now, in relation to the members who NatRoad claims to have that are either principal contractors or owner drivers, I think you agree with Mr Baroni that they may have conflicting interests in relation to a particular interest, correct? A. Yep. Q. That may be either because there's a particular dispute, that is, say there's a particular individual owner driver who has a dispute with a principle contractor with whom he or she works-- A. Yeah. Q. --in relation to pay or conditions or whatever it might be, and both the owner driver and the principal contractor are members. Correct? A. Yes. Q. Another circumstance in which a conflict may arise is that generally the owner driver membership may have a view on a particular issue about pay or conditions or the like, which might be different to the view that principal contractor members have. Correct? A. Yeah. Q. And I think the answer that you gave to Mr Baroni as to how those conflicts would be resolved is that the matters goes to the board and the members of the board thrash it out and work out a position for the organisation in respect of the issue. Correct? A. Well, there's an additional step to that because generally if it's such a contentious issue we'll go to the entire membership on the issues first, find out what the entire membership wants, and then the staff look at it and present it to the board, and the board then makes a decision based on that. Q. Whatever kind of consultation you do with members, ultimately the board will make a decision about what the view or what the position of the organisation is-- A. Correct. Q. --with respect to the issue, correct? So if there's an issue about what rates should be in a contract determination of this commission or whether there should be such an instrument, members may have different views about that subject? A. Yep. Q. Owner drivers may have different views to principal contractors, correct? A. Yep. Q. And ultimately, by whatever mechanism, the board will decide on a position, which may be what the owner drivers want or what the principal contractors want. Correct? A. Yep. Q. And that's the position that the organisation would put to whatever body was dealing with it in any proceedings? A. That's correct. ……………………… COMMISSIONER: Just before I call on you, Ms Ballard. Q. Mr Clark, I was interested in one of the matters that Mr Gibian raised with you where you had potentially an issue where your owner driver members in New South Wales took a particular view? A. Yep. Q. For example, if it dealt with a contract determination, it was an issue about rates? A. Yep. Q. They had a view which was that rates should be increased. Your employer members, fleet owners and the like who also engage owner drivers, took the opposite view, that rates should not be increased? A. Yep. Q. I think it was put to you by both of the representatives of the objectors, how do you manage that conflict? A. Well, I think the best way to explain it is that we have a solid process. So we haven't actually had that case, even with the rates in GCCD. We weren't able to go to the membership on that. But the fact of it is if we had some-- Q. So you say you went to the membership on-- A. No, we weren't allowed to go to the membership on that. Q. Why was that? A. Well, I believe that we were told that we weren't allowed to distribute the rates while it was being negotiated, if you know what I mean. So the process that we have, and it's very, very - well, since I've been there, very, very clear, that all issues come into the office. The staff look at it. It then gets distributed out to members to get their feedback. That feedback is collated. We then - you know, if it's not clear or if it's not a major decision - if it was to do with rates, that definitely goes to the board and they discuss it. But I can honestly say that our board does not jump to the side of fleet operators just because, you know, there's fleet operators on the board. They're very conscious about making sure that the decisions are based on what the majority of our organisation wants. Q. That was where I was heading. A. Yep. Q. Where you have fleet operators that employ drivers-- A. Yeah. Q. --and engage owner drivers-- A. Yep. Q. --the rates they pay to their owner drivers and the rates they pay to employees can sometimes have a relationship? A. Yes, they do. Q. One moves, the other one moves as well? A. But generally the owner drivers, that's a negotiated rate. That's a contract rate. Q. Yes, but your employer (employee) drivers are going to have an eye on what the company is paying the owner drivers? A. Well, the owner drivers don't own the assets. So-- Q. The owner drivers do own the assets. A. The owner drivers do. Sorry, employee drivers don't, yeah. Q. Yeah. Assume that there is some relationship, even if it is only a vague one. A. Okay. Q. If the push was on for an increase in the rates for owner drivers generally-- A. Yep. Q. --and your employer members were opposing that, I think you said in answer to a question from Mr Gibian that in major issues you will go to the membership? A. Yep. Q. Now, if that was an issue in New South Wales and you went to the membership, is it done by way of a vote? A. It is done by way of a vote, but the thing that we want to make clear is that we're opposed to setting rates for certain segments of the market and we've thought that through a couple of occasions now. So it's all or none. Q. Assume it was an argument about whether rates should increase for owner drivers. A. Yes, okay. Q. Covered by the general carriers determination. A. Yep. Q. And that was being opposed by your employer-- A. Group. Q. --fleet operator type members. A. Yep. Q. If it went to a vote, does the vote of the owner operator member who has one truck and no employees carry the same weight as the vote of-- A. It does. Q. --Mr Thornley's company? A. Yeah. One membership, one vote. So if we come to a large thing like, you know, the road safety remuneration tribunal, we put that out to our membership and we want to know the genuine feeling of what we want to do, a series of questions, whatever it may be, and then we compile that report out of that. Q. So in New South Wales at least the preponderance of votes, just on a breakup of numbers-- A. Yes. Q. --a preponderance of votes would be owner drivers? A. That's correct. Q. Now if-- A. But not all of them vote. Q. I appreciate that. If it was a New South Wales issue such as the rates under the general carriers contract determination and you put it out to a vote, do you only put it out to a vote of members in New South Wales? A. In New South Wales, yes. Q. So that would be the 600 odd that you mentioned? A. Yeah we can, our database determines where they are, yeah where their business is registered. Q. So it's theoretically possible at least that your, if I've got the numbers right, 350 to 400 owner drivers in New South Wales could outvote the 100 or 150 employers that employ 4000 drivers? A. Yes.
4. A witness statement prepared by Allan Thornley was tendered in support of the application. Mr Thornley is a business owner and member of NatRoad. He has been a member of NatRoad since 1 June 1982.
5. Mr Thornley stated that his business, Shaw's Darwin Transport, is based in Sydney and operates in and out of New South Wales. Shaw's Darwin Transport employs more than 25 employees.
6. A further witness statement prepared by Michael Murrell was tendered in support of the application. Mr Murrell is a transport business operator and a director of a transport business that has been a member of NatRoad since 17 February 2012.
7. Murrell Freight Services Pty Ltd is based in Sydney and operates in and out of New South Wales with more than 20 heavy vehicles in a range of different configurations. Murrell Freight Services employs more than 50 employees, including drivers.

Submissions of NatRoad

1. NatRoad's application for registration is brought pursuant to subsection 217(1)(c) of the Act.
2. With respect to subsection 218(1)(a), NatRoad submitted that it is a "genuine" organisation based upon its significant membership of employing contractors and contract carriers (owner-drivers). NatRoad claimed that it had a "track record in representing the industrial interests of the employee or employers, in the relevant occupation/industry (and has done so in the eight decades since 1948)".
3. NatRoad relied upon its objects, as set out in clause 4.1 of its Constitution, to demonstrate that it is "an organisation for furthering or protecting the interests of its members", as is required by subsection 218(1)(b) of the Act.
4. With respect to subsection 218(1)(c), NatRoad relied on its history since 1948 of representing members in relation to industrial matters, to demonstrate that "the organisation is capable of representing its members in connection with industrial matters".
5. In relation to subsection 218(1)(e), NatRoad made the following submission: Although the Applicant is technically not applying for registration as an association of employers, there being no provision relating to being an organisation of employees or employers under the separate organisation registration referred to in section 217(1)(c) of the IR Act, the Applicant has at least two members who are employers who between them employ 50 employees.
6. NatRoad submitted that the remaining criteria in section 218 of the Act have either been met or do not apply to its application for registration.
7. With respect to its mixed membership, NatRoad made the following submission: The Applicant's submits that effective representation of its members is promoted by the fact that its committee of management includes both owner-drivers and employer members.

Submissions of the TWU

1. The TWU submitted that NatRoad fails to satisfy the criteria in subsections 218(1)(c) and (e) of the Act.
2. According to the TWU submission, there is no evidence which would permit the Commission to conclude that NatRoad is an organisation "capable of representing its members in connection with industrial matters" (ss.218(1)(c)). NatRoad claims to have members operating as employers in the private sector. The TWU submitted that, by virtue of section 26 of the Fair Work Act 2009 (Cth) and the operation of the Industrial Relations (Commonwealth Powers) Act 2009 (NSW), the provisions of the Act have no application to private sector employers or employees in New South Wales.
3. Further, the fact that NatRoad claims to have as members, national fleet companies and owner-drivers, demonstrates a fundamental conflict of interests that necessarily impedes the ability of NatRoad to represent its members.
4. The TWU also put a submission to the effect that that the submission of NatRoad in relation to subsection 218(1)(e), set out at paragraph 24 above is wrong. An "industrial organisation" is defined in the Dictionary to the Act as an "industrial organisation of employees or an industrial organisation of employers". NatRoad is, in fact, applying for registration as an organisation of employers and it must satisfy the Commission that it has at least two members who are employers which employ between them at least 50 employees. The TWU claimed that NatRoad had not provided sufficient evidence of this.
5. Finally, it was submitted that, with a membership base that includes both owner-drivers and large corporations who engage owner-drivers, NatRoad cannot meet the requirements of subsection 218(2) of the Act.

Submissions of ARTIO

1. ARTIO submitted that the purpose of the Act is, inter alia, to regulate the relationship between employers and employees and the regulation of industrial organisations. The Act's purpose is to provide a legislative framework with respect to the regulation of industrial relations and associated matters "within and of NSW". NatRoad "must show so as to succeed that its membership (employers who employ employees) has a 'real and substantial connection with New South Wales'".
2. It was further submitted that the evidence of Mr Clark failed to disclose the following: (a) which awards made by the Commission would bind any members of NatRoad including employees of those members; (b) how any of its members could be subject of a dispute as contemplated by chapter 3 of the IR Act; (c) how any of its members could be subject of proceedings pursuant to section 84 of the IR Act; and (d) how any of its members could make an application for an enterprise agreement pursuant to part 2 of chapter 2 of the IR Act.
3. Consequently it follows, so it was submitted, that NatRoad cannot satisfy the requirements of subsections 218(1)(a), (b) and (c) of the Act.

Submissions of NatRoad in reply

1. NatRoad rejected the submissions of the two objectors as to its inability to satisfy the requirements of subsection 218(1)(c) because of its mixed membership.
2. NatRoad also rejected the submission of the TWU to the effect that the Act has no application to private sector employees and employers, and submitted as follows: If this was indeed the case, there would be no need for any industrial organisation to be registered under the IR Act, given that the majority of registered organisations appear to represent private sectors employers and employees. Similarly, there would be no requirements for determinations such as the General Carriers Contract Determination which clearly apply to private sector employers and employees in the road transport industry in NSW.
3. The submissions of the objectors, based upon the fundamental conflict of interests arising from NatRoad's mixed membership, were also firmly rejected.

Determination of NatRoad's application for registration

1. At the outset, it must be stated that the submission put on behalf of NatRoad, as set out at paragraph 36 above, is plainly wrong. Contract determinations made by this Commission in the exercise of its jurisdiction under Chapter 6 of the Act, such as the Transport Industry - General Carriers Interim Contract Determination, have no application to private sector employees. They do apply to transport companies which operate in the private sector, but only in the capacity of those companies as principal contractors engaging contract carriers, not as employers of employed drivers. The jurisdiction to regulate contracts of carriage in the private sector in New South Wales is preserved in this Commission by virtue of the operation of section 7 of the Independent Contractors Act 2006 (Cth), the relevant parts of which are as follows:

Exclusion of certain State and Territory laws (1) Subject to subsection (2), the rights, entitlements, obligations and liabilities of a party to a services contract are not affected by a law of a State or Territory to the extent that the law would otherwise do one or more of the following: (a) take or deem a party to a services contract to be an employer or employee, or otherwise treat a party to a services contract as if the party were an employer or employee, for the purposes of a law that relates to one or more workplace relations matters (or provide a means for a party to the contract to be so taken, deemed or treated); (b) confer or impose rights, entitlements, obligations or liabilities on a party to a services contract in relation to matters that, in an employment relationship, would be workplace relations matters (or provide a means for rights, entitlements, obligations or liabilities in relation to such matters to be conferred or imposed on a party to a services contract); (c) without limiting paragraphs (a) and (b)--expressly provide for a court, commission or tribunal to do any of the following in relation to a services contract on an unfairness ground: (i) make an order or determination (however described) setting aside, or declaring to be void or otherwise unenforceable, all or part of the contract; (ii) make an order or determination (however described) amending or varying all or part of the contract. Note 1: For the meaning of workplace relations matter, see section 8. Note 2: For the meaning of unfairness ground, see section 9. Note 3: Division 1 of Part 5 provides for a transitional period during which the State and Territory laws (other than laws that provide as mentioned in paragraph (1)(c)) may continue to apply despite this subsection. (2) Subsection (1) does not apply in relation to: (a) a law of a State or Territory, to the extent that the law deals with matters relating to outworkers (including entry of a representative of a trade union to premises for a purpose connected with outworkers), other than matters mentioned in paragraph (1)(c); or (b) any of the following laws: (i) Chapter 6 of the Industrial Relations Act 1996 of New South Wales (and any other provision of that Act to the extent that it relates to, or has effect for the purposes of, a provision of Chapter 6);

1. In this application, NatRoad is not seeking registration pursuant to the provisions of Chapter 6 of the Act. NatRoad is seeking registration as an industrial organisation of employers pursuant to the provisions of Chapter 5 of the Act.
2. In order to succeed in its application, NatRoad needs to satisfy this Commission that it is an organisation for furthering or protecting the interest of its members and is capable of representing its members in connection with industrial matters (ss.218(1)(b) and (c)).
3. According to the evidence of Mr Clark, only about 100 to 150 of NatRoad's 600 members (approximately) in New South Wales are employers. The remaining 450-500 members are contract carriers or owner-drivers who are not employers. In relation to the determination of major issues, each member of NatRoad has one vote regardless of the size of that member's operation.
4. It is notorious that the industrial interests of contract carriers or owner-drivers will often align more closely with those of employed drivers rather than with the industrial interests of the transport companies which engage both employed drivers and owner-drivers. For example, the rates paid to owner-drivers pursuant to the Transport Industry - General Carriers Interim Contract Determination contain within them a component for wages which is based on the rate of pay for a Transport Worker Grade 3 in the Transport Industry (State) Award.
5. Putting aside the question of whether or not the Transport Industry (State) Award currently applies to any employed driver in the private sector in New South Wales, historically the position has been that an increase in the rates of pay under that award has provided the TWU with a basis for seeking an increase in the rates paid to owner-drivers under the determination.
6. The fact that the TWU is registered under Chapter 5 of the Act as an organisation of employees and is also registered under Chapter 6 of the Act as an association of contract carriers, is indicative of the general, if not absolute, alignment of the industrial interests of employee drivers and owner-drivers.
7. Transport companies which engage both employee drivers and owner-drivers will often be required to deal with the TWU representing its employed members and its owner-driver members at the same time. The industrial interests of employee drivers and owner-drivers will often conflict with the industrial interests of the transport companies which engage them.
8. An organisation which purports to represent the industrial interests of employers in the transport industry in New South Wales, but whose owner-driver members can outvote those employer members by a factor of 4 or 5 to 1 on major industrial issues, is not in, my opinion, an organisation for furthering or protecting the interests of its employer members (ss.218(1)(b)), or an organisation which is capable of representing its employer members in connection with industrial matters (ss.218(1)(c)).
9. Subsection 218(2) of the Act allows for an employer organisation to be registered even if its members include persons, other than employees, who carry on business but who do not have any employees, such as contract carriers or owner-drivers. However, an organisation with any such members may be registered only if it is effectively representative of the members who are employers. Given the significant imbalance of its membership in favour of owner-drivers, NatRoad could not be described as being effectively representative of the members who are employers.
10. For these reasons, this application for registration by NatRoad cannot succeed and must be dismissed. In making this determination, I have not found it unnecessary to consider or determine the other bases of the objections of the TWU and ARTIO.

Order

1. The application by NatRoad for registration as an organisation of employers is dismissed. John Murphy Commissioner

Amendments 14 July 2017 - Amended paragraph 15 Font Size/Indent 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: 14 July 2017