RJ Enterprises (Aust) Pty Ltd v Booth Transport Pty Ltd

Judgment 1The three proceedings instituted in this Court, which have been referred to a Full Bench of the Court by direction of the President, are proceedings in which each of three Contract Carriers has claimed against a respondent Principal Contractor underpayment of certain remuneration under the provisions of the Transport Industry - General Carriers Contract Determination ("the Contract Determination"), an industrial instrument made by the Industrial Relations Commission of New South Wales. Each of the proceedings raises for determination the interpretation and application of provisions of the Contract Determination that are the same as, or relevantly similar to, the issues raised in the other proceedings. The proceedings have been heard concurrently. 2Whilst the questions referred to the Full Bench for determination in each of the three proceedings are not identical, they may be conveniently described, for the purpose of these reasons for judgment, in terms set out in the respondents' outline of submissions, as follows: (1) Whether the time the Applicant spent travelling empty can be properly regarded as time spent engaged in a "contract of carriage" for the purposes of section 309 of the Industrial Relations Act 1996 (the 1996 Act) and the Transport Industry - General Carriers Contract Determination (the Contract Determination) ( the First Question ). (2) Whether the contract carrier is entitled to be paid the running rate per kilometre and the hourly standing rate in Schedule 1, or either of them for all time and distance that the contract carrier travels without goods being loaded onto the carrier's vehicle ("travelling empty") including for the time and distance travelled: (a) between delivering and picking up goods; (b) from the principal contractor's depot to pick up goods; or (c) back to the principal contractor's depot after delivery goods, ( the Second Question ). (3) Whether the contract carrier is entitled to be paid the hourly standing rate in Schedule 1 for all time spent by the carrier in: (a) loading or unloading goods; (b) performing the obligations set out in clause 6(5) of the Contract Determination; (c) attending to all necessary paperwork in accordance with obligations set out in clauses 6(17), 6(19) and 6(20) of the Contract Determination; or (d) waiting for goods to be loaded/unloaded onto the contract carrier's vehicle by other persons, ( the Third Question ). (4) Whether: (a) clause 2(a) of the Contract Determination applies to contracts of carriage from one place to another place, only one of which is within the County of Cumberland; (b) clause 2(b) of the Contract Determination applies to contracts of carriage any part of which extended beyond the County of Cumberland; and/or (c) clause 2(b) of the Contract Determination applies to contracts of carriage from one place to another place, where one of them is not within the area of a circle of 50km radius from the starting place, ( the Fourth Question ). (5) Whether principal contractors are liable to make severance payments to contract carriers under clause 6 of the Transport Industry - Redundancy (State) Contract Determination (Redundancy Determination) in respect of any period of service of the contract carriers falling prior to the date on which the Redundancy Determination came into force and, if so, whether this is impermissible by reason of section 318 of the 1996 Act ( the Fifth Question ). 3In addition to these questions, the Full Bench was asked by the parties to determine an additional question, being whether or not Contract Carriers are entitled to payment for a lunchbreak under the Contract Determination. 4Evidence was given in each of the proceedings concerning the nature of the contractual arrangements between each of the applicants and each of the respondents so as to provide an appropriate factual matrix against which the Full Bench was asked to determine each of the questions. It will be necessary to summarise the effect of this evidence before considering the provisions of the Contract Determination and how they are to be applied to the circumstances of each of the applicants in the context of each of the questions for determination.

Georgiev Transport Pty Ltd v Gregory's Transport Pty Ltd 5Mr Valentin Georgiev commenced work for Gregory's Transport Pty Ltd ("Gregory's") in 2001 as an employed driver. He was initially based at premises occupied by Lysaght Industries in Chullora. From here he operated a prime mover vehicle under instructions from both Lysaght and Gregory's personnel. He delivered Lysaght building materials and supplies to its customers throughout Sydney. In April 2004, he negotiated with Gregory's to become an owner-driver. He purchased a prime mover with a Hiab crane attached and signed a Cartage Contract with Gregory's in April 2004. He said that he commenced work for Gregory's on 27 April 2004. On 5 April 2004, he caused Georgiev Transport Pty Ltd ("Georgiev") to be incorporated. A copy of the actual Cartage Contract is not in evidence. However, a pro forma contract is in evidence. The parties have proceeded on the basis that that pro forma contract sets out the terms and conditions of the contractual arrangements between Gregory's and, presumably, Georgiev Transport Pty Ltd. Pursuant to the Cartage Contract, Mr Georgiev's company, as Contractor, was "engaged by Gregory's Transport to provide cartage services between such places as may be specified from time to time in accordance with this Cartage Contract." The Contractor was required to "load, transport, deliver and unload goods at the request of Gregory's Transport or Gregory's Transport's customer in accordance with the terms of this Cartage Contract." The Contractor was to be paid cartage fees in accordance with a schedule, which is not in evidence. 6It was common ground in the proceedings that Georgiev was paid an hourly rate for all time taken by Mr Georgiev in performing services under the cartage agreement. 7Throughout the time that Mr Georgiev drove his company's vehicle, he worked out of the Lysaght depot at Chullora. The work pattern was that he would arrive in the morning at the depot and locate run sheets and delivery dockets, which set out the deliveries and pickups that he was required to attend to each day. The items for delivery would have been pre-loaded in a trailer owned by Gregory's the night before. Mr Georgiev would locate the trailer and attach it to his prime mover. When he arrived at customer sites, he would unload the products using the crane, chains and slings, place them in a secure area and receive a signed delivery docket. On some occasions, he would pick up Lysaght products or materials that were to be returned from Lysaght customers and deliver them back to the depot at Chullora. When he completed all of his deliveries on a run, he would drive back to the Lysaght Chullora depot. He would either be given a second trailer for further deliveries or finish for the day. 8Mr Georgiev would leave his prime mover at the Lysaght Chullora depot and drive his personal car to and from the depot. 9Mr Georgiev said that most of the work that he did was within the Sydney metropolitan area, but on occasions he would travel as far as the central coast, Newcastle, Wollongong and adjacent areas. 10Mr Georgiev gave some evidence about the locations to which deliveries were made. Some trips involved deliveries entirely outside the County of Cumberland. However, on other trips, deliveries were made within the County of Cumberland and he would then proceed outside the County of Cumberland. Accordingly, there would be some occasions when he was undertaking a run of deliveries that he would make deliveries both inside and outside the County of Cumberland. 11When cross-examined about deliveries, Mr Georgiev said that on some occasions he unloaded the material from his vehicle using the crane attached. On other occasions, the unloading would be undertaken by personnel of the customer to which a delivery was made, whether a construction site or a retail store. When this occurred, he said that it was necessary for him to remain present during the course of the unloading operation so that he could assist by telling those persons what items needed to be taken off the trailer. He also needed to ensure that no damage occurred to any of the items being delivered. 12Evidence was given in the Georgiev Transport proceedings by Garry Small, Contract Manager employed by Gregory's. Mr Small confirmed that: a) Mr Georgiev was required to ensure that the load on the trailer was adequately restrained before driving out of the depot; b) Mr Georgiev would be required to be present when the trailer was being unloaded by personnel of the customer at the drop off site because he was responsible to make sure that no damage was done to any item and, if there was damage, to identify who was responsible. Furthermore, he was required to remove the gates from the trailer and any load restraint binders or ropes from the freight and he was responsible to ensure that any remaining load on the trailer was secure. 13Mr Small also agreed that on occasions, a Contract Carrier would be required to wait for a short time before unloading a load if there were other deliveries being made at the particular site at the same time. 14Mr Small confirmed that Mr Georgiev was required to keep a record of his hours of work and that the hourly rate of pay was not applied to the total hours worked each day. A deduction of one half hour was made to accommodate time taken for a meal break.

Wayne Stirling Transport Pty Ltd v General Carrying Pty Ltd 15Wayne Stirling commenced working for General Carrying Pty Ltd ("General Carrying") as a Contract Carrier on 1 August 2005. In about March 2006, he was told by General Carrying personnel that he would have to work through an incorporated entity. For that purpose, he arranged for the incorporation of Wayne Stirling Transport Pty Ltd ("Stirling Transport") and continued to operate through that entity. 16Mr Stirling provided his own truck. Initially, he worked out of a depot of an organisation known as Cereform, located at Wetherill Park. Cereform supplied flour to the baking industry. He would drive to the Cereform depot each morning and would be given paperwork constituting a run sheet and delivery dockets. He then drove his vehicle to the loading bay area. He opened the curtains on the trailer, removed the gates and then forklift drivers employed by Cereform would load his truck with the items to be delivered. When the items were loaded on pallets, he replaced the gates and curtains and left the depot to undertake the deliveries, which were often at different sites. For example, upon arrival at a bakery, the warehouse staff would direct him where to park the vehicle. Mr Stirling then removed the curtains and gates, and the pallets containing the items for delivery would be removed by forklift drivers. After obtaining signatures on delivery documents, Mr Stirling would then replace the gates and curtains and travel to another location. When all of the items on the vehicle had been delivered, he would then telephone the General Carrying transport allocator and ascertain whether he had to pick up items from other locations or return to the Cereform depot. 17Occasionally, Mr Stirling worked out of the General Carrying depot at Minto undertaking general deliveries and pick-ups of palletised and non-palletised freight. The same procedures applied. 18Subsequently, the work allocated to Mr Stirling changed so that he was more often working out of the General Carrying Minto depot and less regularly working out of the Cereform depot. 19Most of the work that Mr Stirling did was within the Sydney metropolitan area, but on some occasions he travelled out of the Sydney area. 20Stirling Transport was paid a flat hourly rate for all time taken by Mr Stirling in carrying out deliveries. The hourly rate applied for all hours worked including driving between the relevant depot and customer locations, as well as the loading and unloading of goods. 21Mr Stirling said that on occasions he would be travelling empty, that is without any goods on board, between delivery sites and the relevant depot. However, he said that on the majority of such occasions he would have empty pallets on board and would be following the instruction of General Carrying allocators if he was required to travel to another destination to pick up more items. 22Mr Stirling was cross-examined about meal breaks. He said that on rare occasions he was told by the allocator to take a half hour break for lunch. However, he said that on most days he would eat his lunch whilst driving, albeit in a 14-tonne vehicle. He did not record any times taken for lunchbreak in documentation that he furnished to General Carrying. 23There is no evidence of any written agreement between Stirling Transport and General Carrying and no one has asserted that a written agreement exists. It may be assumed, therefore, that there was no written agreement.

RJ Enterprises (Aust) Pty Ltd v Booth Transport Pty Ltd 24Rade Josifovski commenced engagement as a Contract Carrier with Booth Transport Pty Ltd ("Booth Transport") in about April 2002. He was not given any formal letter of engagement or contract. He was paid an hourly rate for work that he performed using a vehicle that he owned and provided. In about December 2002, Mr Josifovski purchased a new vehicle so that he could be paid at a higher hourly rate. At that time, he commenced to provide his services to Booth Transport through a company that he had caused to be incorporated, RJ Enterprises (Aust) Pty Ltd ("RJ Enterprises"). In about February or March 2003, Booth Transport relocated from a previous depot in Yennora to Villawood. 25Mr Josifovski said that his regular working pattern, both initially as a sole trader and later through RJ Enterprises, was consistent throughout the period of engagement. He would be told at the conclusion of work one day what time to present for work the following day. Upon arrival, he would then pick up consignment notes for that day's deliveries. He would then either load his vehicle with palletised goods by forklift himself or with the assistance of a forklift driver if one was available. The maximum number of pallets that could be placed on his vehicle at any one time, he said, was 12. Sometimes, he would deliver all of the items loaded onto his vehicle to the one location. On other occasions, he would do a number of deliveries. Often he would then return to the depot to pick up more work. Occasionally he would also pick up palletised goods from customers and bring them back to Booth Transport for consignment interstate. Most of the work that he performed was within the Sydney metropolitan area but on occasions he would travel to the central coast, Newcastle or Goulburn. 26Mr Josifovski was required to complete documentation at the end of each run. 27In his evidence, Mr Josifovski said that at the Booth Transport depot he was involved in using a forklift to load his vehicle about 50 per cent of the time. This evidence was contradicted by Sean Adams, an Operations Manager with Booth Transport, who said that Mr Josifovski would only have been involved in loading his vehicle himself using a forklift between 5 to 10 per cent of the time. Whatever the resolution of this controversy, Mr Adams confirmed the evidence of Mr Josifovski that when his vehicle was being loaded with palletised goods, it would be necessary for Mr Josifovski to be present to ensure that the goods were loaded in a safe manner and in a particular order to assist with deliveries. He would also be responsible for strapping the pallets and replacing the gates on the vehicle after this had been done. Mr Josifovski would, therefore, need to be present while pallets were loaded onto his vehicle. During all of this, it would be necessary for Mr Josifovski to stay close to his vehicle. The same procedure would apply in cases where Mr Josifovski's vehicle needed to be unloaded at the Booth Transport depot. If this occurred, he would first be required to remove the curtains, remove the gates and unstrap the load before the unloading process could begin.

The Contract Determination 28The Transport Industry - General Carriers Contract Determination is an industrial instrument made by the Industrial Relations Commission of New South Wales. By its terms, it took effect on and from 31 May 1984. 29The Contract Determination was made by the then Industrial Commission of New South Wales following a number of amendments to the then Industrial Arbitration Act 1940, which gave the Commission jurisdiction and power with respect to contracts of carriage. Evidence tendered in these proceedings is to the effect that the Contract Determination as made reflected a consent position of both the applicant Transport Workers' Union of Australia, New South Wales branch and the named respondents. 30The parties in these proceedings have assisted the Court by furnishing documentation which refers in some detail to the background events that gave rise to the amendments of the Industrial Arbitration Act and, in turn, to the making of the Contract Determination. In view of the conclusion which we have reached, and the reasons therefor, it is not necessary that we refer to this material further. 31We now come to examine the provisions of the Contract Determination in some detail, because it will be necessary to do so to resolve the controversy that is raised by the parties in these proceedings. In order that the discussion that follows may be more properly understood, we identify the several matters that will require the determination of this Court:

1. Whether Contract Carriers who are performing a contract of carriage are entitled to remuneration under the Contract Determination while the vehicle is travelling empty, that is there are no goods being transported.
2. Whether Contract Carriers are entitled to be paid remuneration for time spent while they have an involvement in the loading or unloading of goods, are attending to paperwork and completing certain documents required of them or are waiting for goods to be loaded onto or unloaded from a vehicle.
3. Whether and to what extent remuneration is payable under the Contract Determination if Contract Carriers are involved in deliveries or pick-ups in areas outside the County of Cumberland or beyond a 50 kilometre radius from a particular "starting place".
4. Whether Contract Carriers are entitled to be paid whilst taking a lunchbreak or, alternatively, whether the Principal Contractor is required to make payment to a Contract Carrier who has not taken a lunchbreak as required by the Contract Determination. 32We have previously set out the questions that have been referred to this Full Bench for consideration. One of those questions relates to the provisions of the Transport Industry - Redundancy (State) Contract Determination. That is a separate Contract Determination and will be considered separately later in these reasons for judgment. 33It is necessary to set out some of the provisions of the Contract Determination. They are as follows: TRANSPORT INDUSTRY - GENERAL CARRIERS CONTRACT DETERMINATION ...

1. Definitions ... "Contract of carriage" has the meaning given to that expression by the Act. ... "Contract Carrier" means a person who enters into a contract of carriage. "Contract distance" means in relation to a contract of carriage each kilometre necessarily travelled by the Contract Carrier in performing the contract of carriage, namely, the distance necessarily travelled from the starting place to a place of delivery together with any distance necessarily travelled in returning to the starting place, or, subject to the Contract Carrier observing any instructions given by the Principal Contractor under clause 6 (26) in the event that the Principal Contractor does not require the Contract Carrier to return to the starting place, any distance which the Contract Carrier would have necessarily travelled if he had returned to the starting place. "Contract time" means in relation to a contract of carriage the time during which the Contract Carrier has necessarily been engaged performing the contract of carriage, namely, the time necessarily occupied in travelling from the starting place to a place of delivery together with any time necessarily occupied in returning to the starting place, or, subject to the Contract Carrier observing any instructions given by the Principal Contractor under clause 6 (26) in the event that the Principal Contractor does not require the Contract Carrier to return to the starting place, any time which in the opinion of the Principal Contractor the Contract Carrier would have been necessarily occupied in travelling if he had returned to the starting place but does not include the time of a delay (other than a delay for which the Contract Carrier is not reasonably responsible), the time of a delay not promptly notified by telephone or radio to the Principal Contractor, the time lost because of breakdowns or accidents or the time taken by the Contract Carrier for meal breaks or any other interruption to work. ... "Principal Contractor" means a person (including, without limiting the generality of the foregoing, a road transport contractor, a customs or other agent or a manufacturer, wholesaler, retailer or distributor of goods) who enters into a contract (other than a contract of employment) with another person for the transportation of goods by that other person. ... "Starting place" in its application to a Contract Carrier means the place at which the Contract Carrier is instructed by the Principal Contractor to report ready to commence work. "Termination" in its application to a Contract Carrier means that the Principal Contractor ceases to enter into contracts of carriage with the Contract Carrier and ceases to allocate work to the Contract Carrier under any current contract of carriage, and "Terminated" has a corresponding meaning. "The Act" means the Industrial Relations Act 1991. ... "Work" means the transportation of goods by a Contract Carrier under a contract of carriage with a Principal Contractor. Words importing the singular number shall include the plural number and words importing the plural number shall include the singular number. ...
2. Class of Contract of Carriage, Locality and Duration (1) This contract determination shall operate in respect of contracts of carriage being contracts from the transportation of goods of all description by the use of any type of motor vehicle (a) from one place to another place, both of which are within the County of Cumberland; or (b) from one place to another place, both of which are within the area of a circle of radius 50 kilometres the centre of which is the starting place applicable to the Contract Carrier who is performing the contract of carriage, but excluding - ... (4) This contract determination shall take effect on and from 31 May 1984 and shall remain in force for a period of one year thereafter. ...

2. Ropes and Gear Allowance A Contract Carrier who, in order to perform a contract of carriage, is required to supply tarpaulins, ropes, gates, chains and dogs for use in a contract of carriage shall be paid the following allowance for each day (and proportionately for part of a day) during which the equipment is used for the purpose of the contract of carriage: $3.77 per day.
3. Twistlock Allowance A Contract Carrier who, in order to perform a contract of carriage, is required to fit his trailer with twistlocks for the carriage of I.S.O. containers shall be paid the following allowance for each day (and proportionately for part of a day) during which the equipment is used for the purpose of the contract of carriage: $2.84 per day.
4. Mechanical Lifting Equipment Allowance A Contract Carrier who, in order to perform a contract of carriage, is required to supply rear or side-loading mechanical devices, shall be paid the following allowance for each day (and proportionately for part of a day) during which the equipment is used for the purpose of the contract of carriage: Rear-Lift Platforms: Up to and including 3,000 lbs. capacity: $ 4.52 per day Up to and including 6,000 lbs. capacity: $6.18 per day. Side-Loading Devices: $19.93 per day ... 34There are a number of general observations which should be made about the Contract Determination and the manner in which it is expressed to operate.

The first observation 35The Contract Determination only operates in circumstances where there is a contract of carriage. That expression is defined by reference to the meaning given to it in s 309 of the Industrial Relations Act 1996 ("the Act"). Section 309(1) is in the following terms: 309 Contract of carriage-meaning (1) For the purposes of this Chapter, a contract of carriage is a contract (whether written or oral or partly written and partly oral) for the transportation of goods by means of a motor vehicle or bicycle in the course of a business of transporting goods of that kind by motor vehicle or bicycle, but only: (a) where the carrier is not a partnership or body corporate-if no person except the carrier is, except in the prescribed circumstances, employed (whether pursuant to a contract of employment or not and whether by the carrier or not) in driving or riding on that or any other motor vehicle or bicycle in the course of that business, or (b) where the carrier is a partnership-if no person other than a partner is, except in the prescribed circumstances, employed (whether pursuant to a contract of employment or not and whether by the partnership or not) in driving or riding on that or any other motor vehicle or bicycle in the course of that business, or (c) where the carrier is a body corporate-if no person is, except in the prescribed circumstances, employed (whether pursuant to a contract of employment or not and whether by the body corporate or not) in driving or riding on that or any other motor vehicle or bicycle in the course of that business unless the person is: (i) a director of the body corporate or a member of the family of a director of the body corporate, or (ii) a person who, together with the members of his or her family, has a controlling interest in the body corporate, or (iii) a member of the family of a person who, together with the members of his or her family, has a controlling interest in the body corporate. 36Thus, a contract of carriage is defined to mean a contract for the transportation of goods by means of a motor vehicle. We agree with the submissions made by the Transport Workers' Union of New South Wales, intervening in the proceedings, that the word "for" imports the meaning "with the object or purpose of", citing the Macquarie Concise Dictionary, Third Edition. This submission was adopted by the applicants. Accordingly, in determining whether there is a contract of carriage, one looks to the purpose of the contract to ascertain whether or not it is for the transportation of goods. It is not necessary that the transportation of goods be the sole subject matter of the contract, so long as it is a dominant purpose. Obviously, such a contract could legitimately deal with a number of ancillary and necessary matters, such as arrangements for the pick up of goods, loading and unloading goods and the like.

The second observation 37The class of contracts of carriage to which the Contract Determination applies is as described in cl 2(1) of the Contract Determination, which we have set out above. 38It may be assumed that the word "from", where first appearing, is a typographical error and should read "for". Accordingly, the Contract Determination is limited in its application. It can only operate "in respect of" a contract of carriage for the transportation of goods from one place to another place, both of which are either within the County of Cumberland or within the circle of a radius as described. 39By cl 1, words importing the singular shall include the plural and vice versa. Accordingly, the subject matter of the contract of carriage, with respect to which the Contract Determination operates, is a contract for the transportation of goods from one or more places to another place or places within the geographical area described.

The third observation 40The basis for payment of remuneration is set out in cl 16. The Contract Carrier is to be paid a per kilometre, or running, rate for the contract distance covered and the standing hourly rate for the contract time taken, together with additional rates referred to in the third schedule. 41Each of the expressions "contract distance" and "contract time" is defined in cl 1, in terms that we have earlier set out. 42Each of these definitions is expressed to apply "in relation to" a contract of carriage. The provisions of these definitions and the meaning that should be accorded to them created much of the controversy between the parties in these proceedings and we will need to examine them carefully later in these reasons for judgment. For present purposes, it is sufficient to note that the definitions cover, respectively, distance necessarily travelled from the starting place to a place of delivery and in returning and time during which the Contract Carrier has been necessarily occupied in travelling to and from the same places.

The fourth observation 43By cl 6(20) the Contract Carrier is required to hand in all freight notes and worksheets at the completion of each day's work. This must assume that the Contract Carrier returns to, or travels to, a place where this can be accomplished.

The fifth observation 44By cl 19(9), any distance travelled and time taken in performing work for the Principal Contractor "shall not be counted as distance travelled or time taken for more than one contract of carriage." It seems to us that this contemplates that there may be separate contracts of carriage between a Contract Carrier and a Principal Contractor that operate concurrently, so as to preclude some form of double counting.

The contracts of carriage in these proceedings 45We have said that the Contract Determination upon which the applicants found their cases only applies to contracts of carriage of the class referred to in cl 2(1). 46The evidence given in the proceedings, which we have summarised, leads to the conclusion that, at the commencement of the relationship between each of the applicants and each of the respondents, a contract was entered into. Some precision is afforded in the proceedings involving Georgiev Transport by the pro forma form of written contract, but the oral evidence in the other two proceedings is to similar effect. Namely, each of the applicant Contract Carriers undertook to make themselves available and to perform such work as was provided to them from time to time by each of the respondents and they undertook to perform that work. Each of the respondents undertook to make work available to the applicants from time to time and to pay remuneration to each of the applicants upon performance of that work in an appropriate manner. Certainly, this was the position contended for by the TWU and supported by each of the applicants. 47The respondents, however, submitted that each of the discrete trips taken by an applicant Contract Carrier was a separate contract of carriage. If the respondents' submission is correct, it would mean that either actually or notionally each discrete trip constituted a separate contract of carriage and was the subject of a separate offer and acceptance. This does not accord with the evidence given in the proceedings. The evidence is to the effect that there was, in each case, an overarching contract of carriage, the general terms of which we have earlier described, of indefinite duration. There is simply no suggestion in the evidence that each and every time a discrete trip was allocated to the applicants throughout a typical working day a separate contract of carriage was entered into at law. 48On an initial consideration, the provisions of cl 2(1) could conceivably create some difficulty in the context of an overarching contract of carriage of the kind that we have determined applies on the evidence in these proceedings. If there was one overarching contract of carriage and it contemplated that there would be the transportation of goods from a place outside the County of Cumberland or to a place outside the County of Cumberland, or from one place to another outside the radius set out in cl 2(1)(b), then arguably the whole of the contract of carriage might fall outside the class of contract of carriage to which the Contract Determination applies. However, it seems to us that cl 2(1) should not be applied in this way to an overarching contract of carriage. This is because the geographical and location limitations described in cl 2(1) only operate "in respect of contracts of carriage" which fall within the geographical and place locations described. That is, the Contract Determination is to operate in respect of so much of the work performed pursuant to a contract of carriage that falls within the limitations created. Seen in this way, any overarching contract of carriage of the kind that we have described by reference to the evidence in these proceedings, which contemplated that work might be performed from time to time outside the geographical limitations contained in cl 2(1), would not be covered by the Contract Determination only in circumstances where the transportation of the goods was carried out outside the geographical limitations imposed. 49On initial consideration, the provisions of cl 19(9) also create some difficulty in their application. This subclause seems to contemplate that there may be in existence concurrent and separate contracts of carriage being undertaken at any one time by a Contract Carrier in performing work for the Principal Contractor. The purpose of the subclause seems to be designed to preclude the Contract Carrier from being paid more than once with respect to different goods being transported as part of the one trip or load. This gave rise to some initial concern that in reality the subclause was intended to apply to different loads for delivery at different places within the one trip. However, in the context of an overarching contract of carriage of the kind that we have determined applies in the circumstances of these proceedings, no difficulty arises in the construction of this subclause. This is because there is only one contract of carriage and all work is performed pursuant to it. Accordingly, no question of double payment can arise.

The calculation of remuneration 50In order to understand the circumstances in which remuneration becomes payable, it is necessary to consider in some detail the definitions of contract distance and contract time in the context of cl 16 of the Contract Determination, which provides for remuneration. We have previously set out cl 16 and the relevant definitions found in cl 1. 51The running rate or rate of remuneration is payable to a Contract Carrier for the contract distance covered by the vehicle. The standing hourly rate is payable for the contract time. 52We shall consider first the definition of contract distance. As we have previously observed, the definition applies "in relation to" a contract of carriage. The definition initially describes the contract distance by reference to "each kilometre necessarily travelled by the Contract Carrier in performing the contract of carriage." There then follows another description, preceded by the word "namely". 53The parties' submissions differed as to the approach to construction of the definition by reference to the use of "namely". The TWU submitted that even though "namely" is defined as being "to wit", this did not indicate that what follows after the use of that word is a specific description that is intended to cut down on the earlier general words used. Otherwise: [I]t renders the opening part otiose; that is, there would be no point in having the general descriptions if it was followed by a specific description which was intended to mean precisely the same thing. 54We prefer to adopt the definition of "namely" found in the online Oxford English Dictionary where that word is used as an adverb. The definition is "Introducing more detailed information or a particular example; that is to say, to be specific; to wit." (In the context of both definitions although "namely" refers respectively to distance and to time, nevertheless in context these are references to distance travelled and time occupied. Accordingly, the word may be considered to be used as an adverb. Seen in this way, the words in each definition that follow "namely" are descriptive of the words that precede it. However, those descriptive words are intended to describe distance necessarily travelled by the Contract Carrier in performing the contract of carriage and time during which the Contract Carrier has necessarily been engaged in performing the contract of carriage, respectively. 55Given that the contract of carriage is an overarching contract, the descriptive words are intended to provide more detailed information about each kilometre that is necessarily travelled in its performance. Accordingly, in determining what is encompassed within these general words, one looks to the distance necessarily travelled from the starting place to a place of delivery, being any place of delivery of goods, together with any distance necessarily travelled in returning to the starting place. This must be a distance travelled in returning from the place of delivery. There can be no other place contemplated by the definition from which the Contract Carrier would be returning. Accordingly, the descriptive words make it clear that the Contract Carrier is to be paid the relevant rate with respect to each kilometre that is travelled from the starting place to each and every place of delivery and returning therefrom to the starting place. 56"Starting place" is specifically defined in cl 1 to mean the place at which the Contract Carrier is instructed to report ready to commence work. By cl 7(9), the Principal Contractor is obliged to specify the starting place for a Contract Carrier. By default, this is to be the principal place of business of the Principal Contractor unless otherwise agreed. Accordingly, the starting place in the context of the three cases with which we are concerned will either be the Principal Contractor's depot or the depot of a customer from whose premises the Contract Carrier habitually commenced work. 57We note for completeness that the definition of contract distance accommodates circumstances where the Contract Carrier is not required to return to the starting place from which the journey commenced, in which case the distance is to be calculated by reference to the distance of return to the starting place. 58Seen in the way in which we have described the meaning of the definition of contract distance and the manner in which is operates, there is no justification for concluding that the distance travelled by a Contract Carrier who is travelling empty in the course of performing the contract of carriage or who is travelling empty in returning from the last place of delivery to the starting place should be excluded from the calculation of contract distance. 59We give as an example a scenario which was considered by the parties during the course of submissions. Assume that a Contract Carrier is required to carry goods from place A, being the Principal Contractor's depot, to place B to deliver them. The Contract Carrier is then required to travel from place B to place C to pick up more goods and thence to place D to deliver the fresh load of goods. The driver then returns to the depot, A, travelling empty. Each of these journeys involves travel necessarily undertaken in performing the contract of carriage between the Contract Carrier and the Principal Contractor. The total distance which is necessarily travelled from the starting place to each and every place of delivery includes the distances between A and B, B and C, C and D and D when returning to A. We emphasise that the distance between B and C, where the Contract Carrier is travelling empty, is necessarily travelled to perform the contract of carriage because whether the Contract Carrier is making an initial delivery or picking up goods from another location for delivery, the carrier is performing obligations under the contract of carriage. 60The respondents submitted by way of a primary position that there were no circumstances in which a carrier could be remunerated when travelling empty. This submission was based firstly on confining a contract of carriage to the actual transportation of goods by means of a vehicle. If goods were not being transported, then this fell outside the contract of carriage. In order to sustain such a submission, the respondents were forced to argue that each trip involving the actual carriage of goods itself constituted a contract of carriage. We have already rejected these arguments. A contract of carriage is one "for" the transportation of goods. Furthermore, in each of the cases with which we are dealing, the contract of carriage is constituted by an overarching contract pursuant to which individual trips are made for the purpose of transporting goods. The respondents further submitted that kilometres necessarily travelled in performing the contract of carriage should be limited to those travelled in actually carrying goods because the contract of carriage should be so confined. Again, we have rejected this approach because it is unnecessarily and inappropriately restrictive of what is intended by the clear words used in the definition of contract distance. We add that, as an alternative submission, the respondents conceded that distance spent travelling empty to return to the starting place would fall within contract distance. Again, this concession is one that necessarily follows from the way in which the definition operates. 61We now come to consider contract time. The use of the word "namely" has the same meaning as when used in connection with contract distance. Accordingly, what must be considered in relation to a contract of carriage is the time during which the Contract Carrier has necessarily been engaged in performing it. This will be the time necessarily occupied in travelling from the starting place to a place of delivery, being, again, any place of delivery, together with any time necessarily occupied in returning to the starting place. This definition also focuses attention on the performance of the contract of carriage. Such a contract has as its purpose the transportation of goods, but the time during which a carrier will be necessarily so engaged must accommodate everything which the carrier is required to carry out to enable the goods to be transported. This will include, where applicable, loading and unloading. 62It follows, therefore, that in circumstances where the carrier is required to perform some duties in connection with the loading or unloading of goods, then the time during which this occurs is time for which the carrier will have been necessarily engaged in performing the contract of carriage. Furthermore, it will be time necessarily occupied in travelling from the starting place to a place of delivery. If travel from a starting place involves some activity on the part of the driver in connection with the actual loading of the goods, including securing them and attending to the vehicle by way of inserting gates and the placement of curtains, then this will count as time necessarily occupied in travelling from the starting place. In the same way, if a carrier is required to become involved in the unloading of the goods, then the transportation of the goods will not be complete until they are unloaded. Accordingly, time taken in travelling to a place of delivery will include the time taken whilst the carrier is involved in the unloading of the goods and readjusting the vehicle by way of replacement of gates and curtains. On the evidence, each of the applicants' drivers were so engaged even though they were not, at times, directly engaged in the loading and unloading of the goods. They were, nevertheless, required to be present while this occurred and to attend to certain matters as outlined in the evidence. 63For the reasons advanced in connection with the discussion about contract distance, any time necessarily occupied in returning to the starting place whether empty or otherwise, will fall within contract time. 64The respondents sought to limit contract time to the time taken in the actual transportation of goods, namely the actual time when the vehicle was moving. It was said that the vehicle did not commence to move to transport the goods until after they had been loaded and the gates and curtains secured. Similarly, it was said that the time when the movement ceased was the time when the carrier pulled alongside the loading dock or other place at which the goods were to be unloaded. Furthermore, it was said that contract time did not apply to any time when the vehicle was travelling empty. 65It follows from our analysis of the definition of contract time and what is involved in it that each of the arguments advanced by the respondents in this regard must be rejected. They are unduly restrictive because they ignore the fact that a contract of carriage extends beyond the mere movement of the goods after they have been loaded until arriving at the place of delivery. The respondents' submissions ignore the provisions of cl 6(5) of the Contract Determination. The driver is clearly responsible for the safe loading of the vehicle and the securing and protection of the load and is compelled to be present to supervise and assist in the loading and unloading of the vehicle. Even in the case of a pre-loaded vehicle, the driver is responsible for checking the load for safety and satisfactory method of loading. Furthermore, the respondents' submissions ignore the obligation of the carrier under cl 6(20) to hand in all freight notes and worksheets at the completion of each day's work against the penalty of not being paid for the time and distance detailed on those worksheets.

Geographic boundaries 66We have already set out the terms of cl 2(1) of the Contract Determination, which establishes geographic boundaries and we have discussed the provisions of that clause in general terms. 67As we have already noted, this subclause applies "in respect of" contracts of carriage. Accordingly, one looks to the transportation of goods that is carried out under or pursuant to a contract of carriage. It seems obvious to us from a reading of the subclause that if any goods are to be transported from one place to another, both of which are within the County of Cumberland, then the Contract Determination will clearly apply. This will be so even if in the course of transporting those goods the carrier is required to travel outside the County of Cumberland, for example in order to deliver some other goods that are part of the overall load to another place of delivery. Even if the goods are to be transported from one place to another, one of which is outside the County of Cumberland, if the delivery is to a place within a circle of radius 50 kilometres, the centre of which is the starting place for that delivery, then the Contract Determination will apply under the provisions of subclause (b). This, it seems to us on the plain reading of the subclause, is the way in which it is intended to operate and should be so construed. 68The respondents submitted that in circumstances where a carrier was undertaking on the one day of work a number of deliveries to various locations, if one delivery of goods was made to a place outside the County of Cumberland, then the whole of the deliveries to be undertaken that day, or perhaps in connection with that trip, would fall outside the Contract Determination. We reject this submission because it constructs a method of operation that is artificial and that does not reflect the clear intention of the words used in the subclause. We have already rejected the respondents' submission that each discrete delivery is constituted pursuant to a separate contract of carriage. In the same way, it is inappropriate to consider individually all of the deliveries made in connection with a particular run where there are multiple drops, in the absence of any evidence that all of those deliveries would be carried out pursuant to a discrete contract of carriage. There is no justification, either in the language used or on the basis of the evidence adduced in the proceedings, for adopting such an approach. As we have earlier said, the words used, particularly by reference to the relationship between the transportation of goods being "in respect of" contracts of carriage, allow for and mandate a consideration of the particular circumstances attaching to the particular delivery of goods from one place to another. 69The respondents also submitted that once a delivery falls outside cl 2(1)(a) because one of the places is not within the County of Cumberland, then paragraph (b) cannot apply because that paragraph "does not apply to trips, any part of which are within the County of Cumberland." It was suggested that paragraph (a) "exclusively covers trips relating to the County of Cumberland." 70We cannot see any justification for adopting this approach to the construction of this subclause. It is clear to us that paragraphs (a) and (b) operate exclusively of each other and in the alternative. That is, the Contract Determination will apply provided (a) or (b) are satisfied. 71Accordingly, we reject the respondents' submissions in this regard. 72The Australian Road Transport Industrial Organisation, New South Wales Branch ("ARTIO NSW"), which intervened in the proceedings, submitted that the construction of the Contract Determination contended for by the applicants, and which we have upheld, would lead to absurd results. It was said that Principal Contractors would be forced to make payments to Contract Carriers whilst they were supervising loading and unloading tasks where others were engaged to undertake those tasks, including employees of the Principal Contractors. In the same way, it was said that Principal Contractors should not be required to pay Contract Carriers whilst travelling empty. It was contended that this would bring about results that were absurd because "the negative consequences for the road transport industry as a whole cannot be what the framers of the General Carriers Determination intended." 73There is simply no basis to support such a submission. There is certainly no evidence upon which we might conclude that there is any substance to the submission. If a submission is to be made that a resultant situation is contrary to what was intended by the makers of a contract determination made by consent, then some evidence would need to be adduced about what was intended. If the results would create some absurdity in terms of operating costs, then some evidence would need to be adduced in support of such a contention. There is no such evidence in these proceedings. We reject this submission.

Meal breaks 74This is a matter that was not expressly referred to the Full Bench for consideration, but emerged as the parties adopted their respective positions to the construction of the Contract Determination and as the parties examined the evidence in the proceedings. It appears that the respondents in the proceedings involving Wayne Stirling Transport Pty Ltd and RJ Enterprises (Aust) Pty Ltd are claiming that they are entitled to deduct from any monies payable to the applicants a one half hour from the contract time rate to accommodate a meal break. 75The definition of contract time specifically excludes, inter alia, time taken by a Contract Carrier for meal breaks. By cl 5, each Contract Carrier is obliged to take a half hour lunchbreak on each day that work is performed. Accordingly, the meal break that the carrier is compelled to take is unpaid. 76The difficulty which we understand confronts the parties is that at least in the case of two of the applicants, payment was made by the respondents on the basis of an hourly rate for all time worked. In some cases, the applicants did not keep records as to whether and, if so, when, a meal break was taken. In the case of these two respondents, the applicants were paid an all up hourly rate for all work performed without any deduction for meal breaks. Those payments were not calculated in accordance with the provisions of the Contract Determination, which clearly differentiates between contract distance and contract time. These parties are now engaged in the time consuming and costly process of endeavouring to calculate what amounts should have been paid by the respondents to the applicants assuming that the provisions of the Contract Determination applied in the manner asserted by the applicants in order to quantify the claims for any under payment. Although it may have been convenient for the respondents in each case to offer the applicants an all up hourly rate without reference to the particular bases for remuneration contained in the Contract Determination, that measure of convenience may well prove entirely inconvenient when faced with the difficult task of recalculating amounts payable under the Contract Determination over many years, especially in the context of a lack of records. 77In these circumstances, it is difficult for us to come to any concluded view other than to restate the position under the Contract Determination. That is, each Contract Carrier is obliged to take a one half hour meal break that is unpaid. At least one applicant's driver said that he did not take meal breaks but ate his lunch whilst driving his vehicle, having stopped somewhere to buy lunch. 78If the recalculation of the amounts properly payable under the Contract Determination following the publication of this judgment creates a controversy concerning payments for meal breaks which cannot sensibly be resolved between the parties, it may be necessary for them to litigate this issue, assuming that it is commercially realistic to do so. The Court would then be faced with determining an argument as to whether a Contract Carrier should be paid for time expended when the driver was in clear breach of the provisions of the Contract Determination in failing to take a lunchbreak. However, a contrary view may be that if a one half hour lunchbreak were taken, then the time otherwise taken for the transportation of the goods would have been extended by one half hour, creating a saving for the respondent. These matters have not been the subject of detailed submissions before us and it is therefore inappropriate that we give them consideration. Apart from stating the manner in which the Contract Determination is intended to operate in connection with meal breaks, it is not appropriate at this stage that we deal with this matter in any further detail.

Operation of the Transport Industry - Redundancy (State) Contract Determination 79The above Determination was made by Deputy President Sams in the Industrial Relations Commission of New South Wales on 2 August 2007. It is expressed to apply to all contracts of carriage and to bind all Contract Carriers and Principal Contractors who are party to a contract of carriage with certain exceptions and took effect on 2 August 2007. In essence, the Contract Determination provides that where a carrier is to be "terminated", presumably in the sense that the contract of carriage is terminated or the services of the Contract Carrier are no longer required, and that occurs "for reasons arising from changes in production, program, organisation, structure or technology ... " then the Principal Contractor is obliged to pay severance pay calculated by reference to the number of years of continuous period of engagement. There is a sliding scale not unlike that found in industrial instruments dealing with redundancy applying to employees. 80The respondents submitted that any severance payments to which the applicants might be entitled under the Redundancy Contract Determination would not be calculated in respect of periods of service completed prior to 2 August 2007. That is, years of engagement would be calculated from that date. 81The basis for this submission was the provisions of s 318 of the Act. Section 318 is in the following terms: 318 Commencement of determination (1) A contract determination comes into force on the date specified by the Commission. (2) However, legal proceedings relating to the enforcement of the determination cannot be commenced until the expiration of 7 days after the day on which it is published on the NSW industrial relations website. (3) A contract determination may be expressed to apply retrospectively, but not earlier than the date on which: (a) application for the determination was lodged with the Industrial Registrar or the Commission initiated proceedings for the determination, or (b) the Commission initiated proceedings for the determination, or (c) the dispute giving rise to the determination was notified to the Commission, as the case requires. 82In particular, the respondents relied upon the prohibition against retrospectivity of operation. 83In support of these submissions, the respondents relied upon a number of well-known authorities that create a presumption that a law, including the application of an industrial instrument, should not be altered so as to apply "to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights of liabilities which the law had defined by reference to the past events" unless a contrary intention appeared. The respondents relied upon the well-known authority of the High Court of Australia in Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 and particularly the above-quoted words as used by Dixon CJ at 267. 84The respondents submitted that if periods of service completed prior to 2 August 2007 were included as forming the basis for calculation of severance payments entitlements, then [T]his will alter the legal consequences attaching to those periods of service. Instead of such periods of service being relevant for any calculation of severance payments under prior law, the period of service will be relevant under the Redundancy Determination, which commences after those relevant periods of service. This affects the rights and liabilities that had been fixed by reference to past events. 85We disagree with this submission. It is clear that because of s 318(3), the right to a redundancy payment created by cl 6 of the Redundancy Contract Determination will only be available to persons who become redundant on or after the date of operation of the Contract Determination, being 2 August 2007. 86However, the inclusion of periods of service completed prior to 2 August 2007 in the calculation of redundancy payments does not, prima facie, require cl 6 to have retrospective effect. Whilst a new right to a redundancy payment is created by the Contract Determination, such a right post dates 2 August 2007. The mere fact that, in calculating the amount of redundancy pay, one must take into account periods of service prior to the relevant date does not offend s 318(3). 87The amount of redundancy pay is merely measured by reference to past years of employment. This can be distinguished from situations where rights are defined by reference to past events and may, therefore, be properly characterised as having retrospective effect, as discussed in Rodway v the Queen [1990] HCA 19; (1990) 169 CLR 515. 88If we extend, by analogy, the concept of accrued rights to cases such as the present, it can be said that the right to redundancy pay accrues upon an employee being made redundant on or after 2 August 2007. The length of employment, whether prior to the date of operation of the Contract Determination or not, quantifies that right. As found in Re VCD and Australian Prudential Regulation Authority [2008] AATA 580, it is the law applicable at the date of accrual of the right that is the law to be applied. 89The Contract Determination creates a new legal right to redundancy pay. The calculation of redundancy pay by reference to prior years of service does not affect any then existing rights or entitlements that attached to any contractual relationship before the date of operation. There were no such rights or entitlements, nor does the Contract Determination create any, prior to the date of its operation. 90In light of the above, s 318(3) will not affect the operation of cl 6 for redundancies that occur on or after 2 August 2007. Taking into account periods of employment prior to 2 August 2007 for the purpose of calculating redundancy pay does not require the Clause to "apply retrospectively" in the relevant sense.

Conclusion 91Having regard to the conclusions that we have reached, we answer each of the questions asked in the following manner:

1. Time spent by Contract Carriers in travelling empty is to be properly regarded as falling within the definition of contract time in the Transport Industry - General Carriers Contract Determination if it is in relation to a contract of carriage between a Contract Carrier and a Principal Contractor.
2. A Contract Carrier is entitled to be paid in accordance with the provisions of cl 16 of the Contract Determination with respect to contract distance and contract time for all time and distance that the Contract Carrier travels without goods being loaded onto the vehicle, including for the time and distance travelled: a) delivering and picking up goods; b) from the Principal Contractor's depot to pick up goods; and c) back to the Principal Contractor's depot after delivery of goods, provided such travel occurs in relation to a contract of carriage between the Contract Carrier and the Principal Contractor.
3. The Contract Carrier is entitled to be paid the hourly standing rate in Schedule 1 for all time spent in: a) loading or unloading goods; b) performing the obligations set out in cl 6(5) of the Contract Determination; c) attending to all necessary paperwork in accordance with obligations set out in clauses 6(17), 6(19) and 6(20) of the Contract Determination; and d) being present while waiting for goods to be loaded or unloaded onto the Contract Carrier's vehicle by other persons, as referred to in cl 6(5), provided such time is spent in relation to a contract of carriage between the Contract Carrier and the Principal Contractor.
4. In relation to geographical limitations: a) Clause 2(1)(a) of the Contract Determination does not apply to the transportation of goods under a contract of carriage from one place to another place, only one of which is within the County of Cumberland; b) Clause 2(1)(b) of the Contract Determination applies to the transportation of goods any part of which extends beyond the County of Cumberland provided that the transportation is from one place to another place, both of which are within the area of a circle of radius 50 kilometres the centre of which is the starting place applicable to the Contract Carrier who is performing the contract of carriage.
5. Principal Contractors are liable to make severance payments to Contract Carriers under cl 6 of the Transport Industry - Redundancy (State) Contract Determination in respect of any period of service of the Contract Carriers which occurs prior to the date on which that Redundancy Determination came into force and such liability is not affected by s 318 of the Industrial Relations Act 1996. 92We also conclude that pursuant to the provisions of the Transport Industry - General Carriers Contract Determination, Contract Carriers are required to take a half hour lunchbreak on each day that work is performed for a Principal Contractor, such lunchbreak not counting as contract time for the purpose of cl 16 of that Determination. 93There has been no consideration given by the parties to the question of the costs of these proceedings before the Court. Costs are reserved. 94Each of the proceedings is stood over to allow the parties to give consideration to the effect of our conclusions on the state of the proceedings. We assume that each of the proceedings may now be allocated to a judge to enable them to be completed. We ask that the parties confer and advise the associate to the President, no later than 15 March 2012, as to any consent position reached between the parties, in which case we shall consider giving effect to any consent orders sought in Chambers. Otherwise, the proceedings may be relisted either before the Full Bench or a single judge pursuant to the liberty to apply, which we hereby grant.

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: 23 February 2012