Transport Workers' Union of New South Wales o/b Sawa Transport Pty Ltd v Hi-Trans Logistics Pty Ltd

Industrial Relations Commission (NSW)|2023-09-19

DECISION

This is an application brought pursuant to s 314 of the Industrial Relations Act 1996 ("IR Act") by the Transport Workers' Union of NSW ("TWU") on behalf of Sawa Transport Pty Ltd ("Sawa Transport") and its member, Sam Sawa, a shareholder, employee, and director of Sawa Transport (the TWU, Mr Sawa and Sawa Transport are referred to collectively as "the applicants") ("Application"). The Application seeks reinstatement of a purported contract of carriage between Hi-Trans Logistics Pty Ltd ("Hi-Trans") and Sawa Transport and compensation for lost income from the date of termination of the purported contract of carriage until the date of reinstatement, or alternatively, compensation.
I convened a compulsory conference on 27 June 2023 pursuant to s 315 of the IR Act. The matter was not resolved at this compulsory conference, and on 4 July 2023 the application was listed for arbitration before me on 19 September 2023.
For the reasons set out below I have decided to dismiss the Application.

Questions for the Commission

Whether Sawa Transport is a party to a contract of carriage for which Hi-Trans is the principal contractor is the threshold issue in these proceedings.
If there is a contract of carriage between Sawa Transport and Hi-Trans then the Commission must determine whether it should make a contract determination with respect to the reinstatement of the contract of carriage: s 314(1) of the IR Act, or whether compensation should be ordered, and if so the quantum of such compensation: ss 314(4) and 314(5) of the IR Act.

The legislative scheme

The relevant parts of Ch 6 of the IR Act are: 306 Contracts to which Chapter applies The contracts to which this Chapter applies are contracts of bailment and contracts of carriage. … 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. (2) For the purposes of subsection (1), a reference to a carrier includes a carrier carrying on business under a franchise or other arrangement. (3) A contract of carriage includes any contract that the Commission declares, after inquiry, to be such a contract. The Commission may make such a declaration if, in its opinion - (a) the contract was entered into for the purpose of defeating, evading or avoiding the provisions of this Act relating to contracts of carriage, and (b) but for being entered into for that purpose, the contract would have been a contract of carriage. (4) A contract of carriage does not include a contract - (a) that is, if the carrier is a common carrier, made in the ordinary course of the business of the carrier as a common carrier, or (b) that is made in the ordinary course of business for the carriage of packaged goods for different principal contractors by the use of the same motor vehicle or bicycle, or (c) for the carriage of mail by or on behalf of Australia Post, or (d) for the carriage of bread, milk or cream for sale or delivery for sale, or (e) for the carriage of goods that are to be sold pursuant to orders solicited during the carriage of the goods, or (f) for the carriage of livestock, or (g) if the principal contractor is a primary producer or a member of the family of a primary producer and the contract is for the transportation of primary produce (other than timber), or (h) for the transportation of primary produce (other than timber) from or to land used for primary production, or (i) for the delivery of meals by couriers to homes or other premises for consumption. 310 Principal contractor - meaning (1) For the purposes of this Chapter, a principal contractor is, subject to this section, the person for whom the carrier under a contract of carriage agrees to transport goods to which the contract relates. (2) If - (a) a contract of carriage is made by the acceptance by an agent of the carrier of an offer to enter into the contract not directed specifically to that carrier, and (b) the agent accepted the offer in the course of a business of acting as agent for the receipt and acceptance, on behalf of 2 or more prospective carriers, of offers to enter into contracts of carriage, and (c) the agent has a discretion in the selection of the prospective carrier on whose behalf an offer received in the course of that business will be accepted by the agent, the agent is, for the purposes of this Chapter, to be regarded as the principal contractor under the contract to the exclusion of the offerer. (3) For the purposes of section 309 (4) (a) and (b), the carrier under a contract of carriage made as referred to in subsection (2) is to be regarded as having held himself or herself out as ready to transport the goods to which the contract relates for the person required by subsection (2) to be regarded as the principal contractor and not to have held himself or herself out as ready to transport the goods for the offerer so referred to. … 314 Jurisdiction with respect to reinstatement of contracts (1) The Commission may, after inquiry, make a contract determination with respect to the reinstatement of a contract of bailment or contract of carriage that has terminated. (2) Reinstatement of a contract includes re-engagement under a similar contract. (3) A contract determination under this section may be made on such terms and conditions as the Commission thinks fit, including provision for any period after the termination of the contract to be treated as a period of engagement under relevant contracts. (4) If the Commission considers that it would be impracticable to make a determination for reinstatement, the Commission may order the bailor to pay to the driver, or the principal contractor to pay to the carrier, an amount of compensation not exceeding the amount of remuneration of the driver or carrier under relevant contracts during the period of 6 months immediately before the termination of the contract. (5) When assessing any compensation payable, the Commission is to take into account whether the driver or carrier made a reasonable attempt to find alternative engagements and the remuneration received in alternative engagements, or that would have been payable if the driver or carrier had succeeded in obtaining alternative engagements. (6) A contract determination under this section takes effect when it is made, and is not required to have a specified term or to be published on the NSW industrial relations website.

Material before the Commission

The applicants tendered two statements made by Mr Sawa, the first dated 31 July 2023 ("First Sawa Statement"), and a reply statement dated 13 September 2023 ("Second Sawa Statement"). These statements contained material that was in the form of submissions as well as evidence. I accepted both statements in full on the basis that I would deal with the content of the statements on the basis of weight. Mr Sawa was cross-examined.
The applicants filed submissions on 1 August 2023 ("AS") and submissions in reply on 13 September 2023 ("ASR").
Hi-Trans relied on a statement made on 28 August 2023 by Monica Attard, State Manager - NSW of Hi-Trans. Ms Attard was cross-examined.
Hi-Trans filed submissions on 29 August 2023 ("RS").
Hi-Trans disputed the existence of the asserted contract of carriage between Sawa Transport and Hi-Trans and maintained that a contract of carriage existed between Asset and Sawa Transport. However, neither party tendered any document purporting to be a contract of carriage.
Mr Sawa referred, in the First Sawa Statement, to a written agreement he was given by Mr Damien which Mr Sawa signed in 2013. Mr Sawa did not annex a copy of this agreement to his statement. The annexures to the First Sawa Statement contained a number of invoices from Sawa Transport to Asset, text messages to Mr Sawa and an email exchange between Mr Damien and Ms Attard.
Ms Attard annexed a number of documents to her statement which included an application by Hi-Trans for a credit arrangement with Asset and a number of tax invoices from Asset to Hi-Trans.
The documents before the Commission did not, on their face establish a written contract of carriage between Asset and Sawa Transport or between Sawa Transport and Hi-Trans.
Neither party presented to the Commission evidence from individuals in control of, or employed by, Asset. Neither party sought that the Commission issue to Asset or any other party a summons for production of documents prior to the hearing.
At the hearing I granted leave to the applicants for a Summons to Produce ("Summons") to be issued to Asset, and for the time for service of the Summons, and the time for the production of documents in response to the Summons, to be abridged. This allowed the parties to consider, before closing their cases, whether they wished to rely on any additional evidence or submissions, once they had reviewed the documents produced.
Following the production of documents by Asset, which did not include the agreement signed by Mr Sawa referenced at [18], the parties submitted jointly that I should accept as evidence, all of the documents returned in response to the Summons. I accepted the parties' joint submissions on this point and accepted the material as evidence in the proceedings. The parties filed written submissions on the relevance and effect of the documents produced.

Is there a contract of carriage between Hi-Trans and Sawa Transport?

The Commission's jurisdiction in s 314 of the IR Act turns on the existence of a contract of carriage between an identified carrier and an identified principal contractor which has been terminated by the principal contractor.
The NSW Court of Appeal in Commissioner of Police, New South Wales Police Force v Zisopoulos [2020] NSWCA 236; 299 IR 314 in dealing with a question about the legal burden referred with approval to the passage by Lord Donaldson of Lymington MR in Amoco Oil Co. v Parpada Shipping Co. Ltd (The "George S.") [1989] 1 Lloyd's Law Reports 369 at p 370 (cited at [69] of Zisopoulos): "I now turn to the burden of proof. It is trite law that the legal burden lies upon the claimant. He who alleges must prove. The appellants allege a short delivery and consequential loss and they must prove both. How they prove it and the evidential burden involved is another matter. Proof must be met by counterproof and that in turn by a reinforcement of the original proof (Smith v. Bedouin per Lord Shand at p. 79). If at any particular stage in the evidence one party would succeed, it is for the other party to adduce further or better evidence and, if he does so and thereby achieves a contingently winning position, the first party must do likewise or lose. In other words, the evidential burden swings or may swing between the parties throughout the hearing, but in the end, in the context of a claim for short delivery, the owner of the cargo must prove the short delivery if he is to succeed in his claim and the shipowner must either prevent his doing so or prove affirmatively that, although there was indeed a short delivery, it occurred in circumstances for which he was not responsible."
The onus of establishing the contract of carriage between Sawa Transport and Hi-Trans and its termination clearly rests with the applicants. If, at a particular stage in the evidence, the applicants would succeed on the existence of the contract and its termination by Hi-Trans, then it is for Hi-Trans to adduce further and/or better evidence that the purported contract does not exist or the jurisdiction of the Commission under s 314 of the IR Act is not engaged.
Section 309 of the IR Act, extracted at [12] above, sets out the types of contracts, whether written, or oral, or partly written and partly oral, that are contracts of carriage for the purposes of Ch 6 of the IR Act. Section 309(1) of the IR Act sets out the criteria for a contract to be a contract of carriage and uses the language "only if" certain identified matters are satisfied.
Commissioner Webster in Transport Workers' Union of New South Wales v NSW Couriers Pty Ltd t/a Aramex (Sydney) [2023] NSWIRComm 1013 ("Aramex") at [57] explained that an analysis of the existence of a contract of carriage should start with the consideration of written contracts between the parties and such written contracts are to be given primacy.
In Aramex, Commissioner Webster was required to determine whether the contractual relationships between Aramex and the businesses that Commissioner Webster referred to as "Courier Franchisees" or "CFs" were contracts of carriage. Commissioner Webster was not required to determine whether there was a contractual relationship between the relevant parties, as the existence of a contract was not in dispute in Aramex, as it is in this instance.
Commissioner Webster noted: "[44] The meaning of "contract of carriage" and "principal contractor" has not been considered by a Court or Full Bench of the Commission. Commissioner Connor decided a challenge on jurisdiction analogous to the matter at hand in Transport Workers' Union of Australia, New South Wales Branch & Courier Please re: alleged breach of dispute procedures [2002] NSWIRComm 1046 ("Couriers Please"). [45] In that matter, Connor C referred to the decision of the High Court in Hollis v Vabu Pty Limited (2001) 106 IR 80 concerning the distinction between an independent contractor and an employee. Commissioner Connor noted that the High Court said that clauses deeming the relationship to be that of independent contractor, rather than employee "…are not of themselves determinative, as parties cannot deem the relationship between themselves to be something it is not…". Although he noted the Commission was not engaged in the task of determining whether the relationship was one of contractor or employee, Connor C found that (at pp 25-26):" "…But the High Court's comments are equally relevant, in my opinion, to the relationship under inquiry in these proceedings. It is trite to say that merely designating any contract as being of a certain class does not necessarily make it so. Nor may parties contract out of relevant obligations under industrial legislation if the substance of what they have actually done properly sits in an area where there is regulation by such legislation (San Remo (Southland) Pty Limited v. Farrell (1987) 22 IR 291 at pp.293 and 294)."
Commissioner Webster then referred to the decision of Justice Black in Spitfire Corporation Limited (in liquidation) and Aspirio Pty Ltd (in liquidation) (2022) 366 FLR 225; [2022] NSWSC 340 ("Spitfire"). In Spitfire, the Court was required to determine the "true employer" of 42 employees who had outstanding entitlements owed to them. Commissioner Webster stated: "[53] The reasoning of Black J in Spitfire is directly applicable to these proceedings. Again, the High Court decisions were concerned with ascertaining the "character" or "characterisation" of the parties' relationship. Specifically, the cases concerned whether an employee was engaged on a casual or permanent basis, and whether a worker was an employee or an independent contractor. Although the Commission is required to consider the relationship between the parties in this matter, the nature of that inquiry is different. The requirement is to identify whether the CFs and Aramex Sydney are engaged in a contract of carriage, as defined by the Act. [54] There is also another important distinction between the analysis undertaken in the High Court cases and these proceedings. In this matter, the Commission is required to consider whether there is a "contract of carriage" where that phrase is statutorily defined. The principles of statutory interpretation require that in interpreting and applying the legislation, regard is had to the purpose and context of the provisions of the Act, including extrinsic materials where appropriate: see above at [32]-[34]; [40]-[41]."
Commissioner Webster went on to state: "[56] There is no "discrete line of authority" on how to approach the task before the Commission. However, the proper approach to determining the question was considered in Couriers Please. While I am not compelled to follow that decision, the principle of comity requires that I give earnest consideration to it and I would only adopt a different course if convinced that it is wrong: see Mitchforce Pty Ltd v Starkey (No.2) [2003] NSWIRComm 458 at [17]-[18] and Health Employees' Conditions of Employment (State) Award 2018 (Infectious Cleaning Allowance) [2021] NSWIRComm 1049 at [30]-[33]. [57] In my view, the correct approach to determining whether there is a contract of carriage requires an analysis of whether the dominant purpose of the relationship is the transportation of goods. The recent High Court decisions, Jamsek and Personell Contracting are instructive. The analysis should start with a proper consideration of the written contracts between the parties and its terms should be given primacy. However, to the extent the written contracts do not reflect the true nature of the relationship between the parties, the Commission is able and should look beyond those terms. Specifically, I am required to establish the actual purpose of the contract, not just what the contract says is its purpose. Further, and as already stated, this is not a matter of determining whether the relationship involves a contract of carriage versus a franchise arrangement. A franchise arrangement can also be a contract of carriage. A contract of carriage can also exist where Aramex Sydney acts as an agent for other entities to require the CFs to transport goods. This approach is consistent with plain words of the ss 309 and 310 of the Act and the legislative intention of Ch 6 where amendments have been made to expand the relevant definitions."
There is no document before the Commission which establishes there is a contract between Mr Sawa or Sawa Transport (or its predecessor) and Hi-Trans, and the applicants have explicitly disavowed ss 309(3), 310(2) and 310(3) of the IR Act (see below, in particular, [39] to [42]). Accordingly, in order to be successful in this application, the applicants must establish, through other evidence before the Commission, that there is a contract between Sawa Transport and Hi-Trans. Before the Commission may determine whether that contract of carriage should be reinstated it must determine that: Hi-Trans is the principal contractor in that contractual relationship; and the purpose of the contract, with the greatest respect to Commissioner Webster's analysis in Aramex where the existence of the contract was not in dispute, as distinct from the purpose of the relationship, is the transportation of goods.

Submissions of the parties as to whether there is an implied contract of carriage between Hi-Trans and Mr Sawa and/or Sawa Transport

Hi-Trans set out in the RS, the history which led to the current Ch 6 and noted that the definitions of "contract of carriage" and "principal contractor" first appeared in the Industrial Arbitration Act 1940 in 1979 as a result of the passage of the Industrial Arbitration (Amendment) Act 1979 ("1979 Amendment Act"). The definitions were reproduced in the Industrial Relations Act 1991 and the IR Act. During the second reading speech for the 1979 Amendment Act, the responsible Minister stated the following: '"Carrier", that is, a lorry owner-driver, is defined as a person with whom a principal contractor has a contract of carriage. "Principal Contractor" is a person who enters into a contract, other than a contract of employment, with another person for the transportation by that other person of any load other than passengers. "Contract of carriage" is defined to refer to contracts for transportation of goods where the motor lorry is driven by a person who is not an employee and who himself does not employ another person to assist in the driving, and also includes such a driver who carries on business in partnership, for example, with his wife or through a family company.'
In its submissions on the meaning of "contract of carriage" in the RS, Hi-Trans also referred to RJ Enterprises (Aust) Pty Ltd v Booth Transport Pty Ltd [2012] NSWIRComm 4; (2012) 221 IR 64 ("RJ Enterprises"), in which the Industrial Court said the following in relation to s 309(1) (at [36]): "Thus, 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 (NSW), intervening in the proceedings, that the word 'for' imports the meaning 'with the object or purpose of', citing the Macquarie Concise Dictionary, (3rd ed). 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."
I agree with Hi-Trans that the history of the statutory scheme summarised in its submissions shows that the existence of a contract of carriage and the identity of the principal contractor and carrier depend on a contract having been formed.
Section 309(3) of the IR Act allows the Commission to make a declaration that a contract is a contract of carriage if it is found that the contract was entered into for the purposes of defeating, evading, or avoiding the provisions of the IR Act relating to contracts of carriage; and but for being entered into for that purpose, the contract would have been a contract of carriage.
A declaration made under s 309(3) is directed relevantly to a contract which may not otherwise be a contract of carriage under subsection (1): Grech and Son Transport v Bing Lee Electrics Pty Ltd [2005] NSWIRComm 228 at [66]. This subsection was described by Commissioner Webster in Aramax as "an 'anti-avoidance' provision": at [36].
The applicants made no reference to s 309(3) in the AS or the ASR. In response to a direct question from me, the applicants' representative confirmed that the applicants were not relying on this section of the IR Act nor asking for such a declaration to be made: Tcpt p3 at 25-35. Following the production of the Documents Produced, the applicants' representative indicated that the applicants did not seek to change their contentions. Consequently, I have not considered whether the circumstances exist such that the Commission could or should make a declaration of the form it is empowered to make pursuant to s 309(3) of the IR Act.
Subsections 310(2) and (3) of the IR Act deal with the circumstances in which a contract of carriage is formed by the acceptance of an offer to enter the contract being given by an agent for the carrier. Ch 6 of the IR Act can apply to an entity that acts as an agent for another, in engaging a carrier to transport goods.
At the hearing, the applicants' representative confirmed that the applicants do not rely on ss 310(2) and (3) of the IR Act: Tcpt at p 46 (25)-(27). The applicants did not change their position on this matter after the documents were produced in response to the Summons. Consequently, I have not considered in this decision whether Asset acted as an agent for Hi-Trans nor whether any other circumstances exist which may give rise to a claim that Hi-Trans is a principal contractor as a consequence of the application of s 310(2) or s 310(3) of the IR Act.
As the applicants did not rely on the application of ss 309(3) or 310 (2) or (3) it is necessary to consider whether "contract" should be given anything other than its ordinary meaning.
There is no definition of "contract" in Ch 6 of the IR Act. In contrast, "contract" is defined in Pt 9 of Ch 2 of the IR Act as: "any contract or arrangement, or any related condition or collateral arrangement, but does not include an industrial instrument": s 105 of the IR Act.
The applicants referred to "the dominant purpose of the contract" Tcpt at p 44 (41), and referred to "an implied contract": Tcpt at p 48 (22) and p 50 (31)-(38), and stated that post-contractual conduct must be taken "into account in analysing the true nature of the relationship between the parties": Tcpt p 60 (35)-(38).
The applicants relied on two authorities: Transport Workers' Union of Australia, New South Wales Branch & Couriers Please re: alleged breach of dispute procedures [2002] NSWIRComm 1046 ("Couriers Please") and RJ Enterprises to support their submissions about the existence of an implied contract.
Couriers Please involved consideration of contracts entered into by Couriers Please with its drivers in 2000 which: "purportedly, took its transport operations outside regulation under Chapter 6 and the general carriers contract determination": Couriers Please at 2. Couriers Please categorised the contractual relationship it had with various contract drivers as "administrative" and "facilitative" only.
Couriers Please argued that it was not a principal contractor and was therefore outside the jurisdiction of Ch 6, claiming that it was not covered by the terms of the General Carriers Contract Determination (or any other contract determination): Couriers Please at 2, and thus the Commission could not compel its attendance at proceedings before it: Couriers Please at 5.
Commissioner Connor found at 10 that: "Couriers Please acts to assist the individual couriers. It coordinates services, retains a central customer database and provides a central message service for bookings, which is increasingly being assisted by an automated machine service or the internet. Couriers Please provides contractors the use of depots and sub-depots and for the distribution of moneys to contractors. It arranges assistance with the sale of a contractor's business, insurance, bulk-purchasing services, the preparation and distribution of the business operations manual. It keeps financial records and other data at a central point. It makes available uniforms and decals for the security of customers of each individual courier. The vehicles bear the logo of Couriers Please but also, customarily, the courier's business name."
Commissioner Connor had before him signed contracts between Couriers Please and the couriers. Couriers Please contended however that these signed contracts were not contracts of carriage and that "the contracts of carriage … [were] made between the contract drivers and their customers and Couriers Please [did] not itself enter into a contract of carriage with those drivers, ie it is not "...the person for whom the carrier under a contract of carriage agrees to transport goods to which the contract relates..." for the purposes of s 310(1)": Couriers Please at 12.
Before considering the submissions and evidence as to the asserted "implied contract" it is germane to recall as noted at [43] that there is no expanded definition of "contract" in Pt 6, as there is at s 105(1) of the IR Act. Importantly, other than in ss 309(3), 310(2) and 310(3) of the IR Act, which the applicants disavowed there is nothing in the text of the IR Act that requires the Commission to give the word "contract" anything but its ordinary meaning. There is no indication in the relevant statutory provisions that the common law principles which govern the formation of contracts are displaced or are inapplicable other than by the application of ss 309(3) or 310 (2) or (3) of the IR Act.
The respondent refers at par 12 of the RS to "Authorities of long standing" which "establish that the following ingredients are required for the formation of a contract between two parties" and asserts that the applicants have not made out these elements: "a. An offer by one party to the other of its willingness to enter into a contract on certain terms. The willingness must be to be bound without further negotiation. b. Acceptance of the offer which corresponds exactly to the terms of the offer. c. Valuable consideration moving between one party and the other in connection with promises made in the contract. d. Mutual intention to create binding contractual relations. The parties to an agreement must not only be ad idem as to the terms of their agreement but must also have intended that it have legal consequences and be legally enforceable."
The High Court (Gaudron, McHugh, Hayne and Callinan JJ) said in Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 ("Ermogenous") at [24]: "It is of the essence of contract, regarded as a class of obligations, that there is a voluntary assumption of a legally enforceable duty." To be a legally enforceable duty there must, of course, be identifiable parties to the arrangement, the terms of the arrangement must be certain, and, unless recorded as a deed, there must generally be real consideration for the agreement. Yet "[t]he circumstances may show that [the parties] did not intend, or cannot be regarded as having intended, to subject their agreement to the adjudication of the courts". [1]
Consistent with Ermogenous, it is well-accepted that a contract must have several essential elements, including an offer, acceptance, consideration, the intention to create legal relations, and certainty of terms. Save for where the specific statutory circumstances, such as those in ss 309 and/or 310 apply, the Commission cannot extend the types of relationships captured by the provisions of Ch 6 beyond contracts formed with these essential elements.
It is necessary therefore for the applicants to establish the essential elements of the asserted implied contract between Hi-Trans and Sawa Transport and/or Mr Sawa. The applicants and Hi-Trans's written and oral evidence about the purported contract of carriage is summarised below at [76] to [86] and the documents produced in response to the Summons are set out at [95].
The applicants referred to evidence which they said established that the everyday allocation of work to Sawa Transport was directed by Hi-Trans and that every day for nearly 10 years, all Mr Sawa's work was directed by Hi-Trans, that Mr Sawa was required to pick up and deliver freight in accordance with Hi-Trans's instructions in a Hi-Trans uniform, and if there were any expected timeframes, they came from Hi-Trans. The applicants submitted that this evidence established an implied contract of carriage existed as a consequence of the everyday operation and the control of the work by Hi-Trans, the manner in which the work was allocated to Mr Sawa, his remuneration and his conduct while performing the work: Tcpt at p 50 (20)-(38).
In "summing up", the applicants' representative said at Tcpt p 60 31- 38: "… Asset is an administrative intermediary, whatever you want to call it. The contract of carriage at the end of the day, is with Hi-Trans, not with Asset. Mr Sawa performed work under the control of and for the benefit of Hi-Trans, and we would say that there is an implied contract of carriage. That … post contractual conduct must be taken into account, and should be taken into account, in analysing the true nature of the relationship between the parties."
I understood the applicants' submission to be that the "post-contractual conduct" of the parties summarised below at [76] to [86] establishes the requisite intention to enter into a contractual relationship and the consideration between the parties and that the offer and acceptance occurred with the aid of an "intermediary" Mr Damien and/or Asset.
Hi-Trans accepted that evidence of things said and done at the putative formation of the contract may be used as evidence of the existence or non-existence of a contract.
Hi-Trans also accepted that the Commission may consider later communications and conduct for the purposes of determining whether a contract was formed, and who the parties to it might be: see Tomko v Palasty [2007] NSWCA 258 at [63]-[69].
Hi-Trans submitted however, that the Commission must be careful in dealing with evidence of post-contractual conduct, because evidence of the way people deal with each other at a later point, such as the allocator allocating jobs to Sawa Transport, does not mean that a contract has been created at that later point through that behaviour. At best, what it does is it allows an inference to be drawn that at the time of formation, the parties did the things and had the necessary state of mind to have formed a contract.
Hi-Trans submitted that matters such as the allocation of work and the wearing of the uniform were "latched onto" by the applicants, under the general "rubric of control" and that the applicants then asserted that this created a contract between the parties.
I agree with Hi-Trans that this is not the proper method of analysis. Rather, the proper method of analysis, when relying on post-contractual conduct, is to ascertain to what extent it might allow an inference to be drawn that supports the formation of the contract at the time that it was said to have been formed in 2013.
Hi-Trans pointed to what it said was another difficulty about the applicants' reliance on the conduct of the parties in that this conduct is as consistent with the state of affairs under which there is a contract between Mr Sawa and/or Sawa Transport and Asset and under the terms of that contract, Asset requires Mr Sawa and/or Sawa Transport to comply with directions issued by Hi-Trans from time to time. Hi-Trans's representative put that idea to Mr Sawa in cross-examination, that Mr Sawa was in effect directed by Asset to follow the instructions given by Hi‑Trans and that was a proposition with which Mr Sawa did not contradict or deny.
As Hi-Trans submitted, labour hire arrangements commonly require an employee who is employed by a particular company and under the terms of that contract to perform services for a third party and is instructed by their employer to obey the directions issued by that other party.
Hi-Trans submitted that the evidence about what went on at the time of putative formation of the contract was limited, and there is insufficient material to conclude that a contract was formed between Mr Sawa or Sawa Transport and Hi-Trans at that time or subsequently.
Hi-Trans submitted that consideration of the putative contract starts with interactions between Mr Sawa on behalf of his company and Mr Damien for Asset. They are the parties who had the communication from which Hi-Trans was absent and no evidence was put, or submission made, that Hi-Trans was a party to or involved in those interactions. A document in the nature of an agreement was signed by Mr Sawa and it was a document that had been given to him by Asset, not by Hi-Trans, and Mr Sawa returned the document to Asset.
Hi-Trans submitted that at the time that the contract was meant to have been created as between Mr Sawa or Sawa Transport and Hi-Trans, there is no evidence of any involvement of Hi-Trans. Hi-Trans noted that the applicants disavow any suggestion that at that time in doing what it did, in dealing with the applicant, that Asset was acting as an agent for Hi-Trans; therefore whatever Asset was doing in its interactions with Mr Sawa and in issuing him with a written document that he has then signed and returned, it was doing it for itself and for its own purposes.
Hi-Trans asserted that there is a contract of carriage between Asset and Sawa Transport and the existence of this contract is sufficient to answer the applicants' case. Hi-Trans did not tender a copy of this contract. Although evidence of such a contract of carriage between Asset and Sawa Transport would assist Hi-Trans's defence of this application it is not Hi-Trans's onus to establish the existence of a contract of carriage between Sawa Transport and a third party. Rather, as has been noted already, it is the applicants' onus to establish the asserted contract of carriage with Hi-Trans, and its terms, in order to be successful in this application. It is important that the determination of this matter starts with consideration of the alleged contract for the transportation of goods between Hi-Trans and Sawa Transport.
In response to the applicants' alternative submissions that there is a contract for the transportation of goods formed every time there is an allocation of work by Hi-Trans to Sawa Transport for the delivery of goods, Hi-Trans's representative referred to Re Transport Industry (General Carriers) Contract Determination (1993) 46 IR 154 ("1993 General Carriers Determination") and submitted: Tcpt at p 54 (30) - p 55 (6): "Because the definition of contract of carriage, uses the singular rather than the plural, and it raised the obvious concern that if what we are talking about here is a contract that is created at the time of each job and then ends at the conclusion of that delivery or pick up as the case may be, then we have some real problems in trying to apply sections such as s 314. The way around that aporia or conundrum, was articulated… [in] the Re Transport Industry - General Carriers Contract Determination case, and if I could ask Chief Commissioner to go to p 162? …. In our opinion, that intention being the intention to provide for contract drivers a particular relief in the form of reinstatement, must be understood to be aimed at reestablishing the contractual arrangement from which the carrier has been excluded. And so, that the focus arising from that decision in respect of s 314, is to look not at individual episodes of picking up and dropping off or delivery of goods, but to identify the existence of an overarching contractual arrangement, which the determination may be said to have excluded the driver from."
In the part of the 1993 General Carriers Determination referred to by Hi-Trans's representative, the Full Bench said at 163: "We consider that the history of Chapter 6, its precursors and amendments makes it entirely clear that reinstatement by way of a contract determination with respect to reinstatement, as appears in s 680(3) has to be read in relation, not to the meaning of reinstatement within the terms of conventional employment, but in relation to the meaning that reinstatement as an industrial remedy bears in the context of the specific provisions of Chapter 6 for the carrying out of a quite different industrial relationship and that relationship's particular exigencies. The distinction between weekly and casual employment, and also term employments, are not existent here. True it is that some elements of each form of contract may exist but we prefer the view that any perceived analogy must be limited to a general indication that the concept of reinstatement should apply to contracts of carriage; not that a system of reinstatement having each of the aspects of principle developed for particular and markedly different contracts should attach to, let alone defeat, the concept as it can apply to contract carriers."
Hi-Trans's representative then went on to refer to Cherry v Allied Express Transport (1997) 73 IR 305 ("Cherry") in which Justice Peterson considered the power to make a contract determination with respect to reinstatement referred to in s 314(1) of the IR Act and submitted: Tcpt at p 55 (15) - (26): "… looking at [the] statutory language and having regard to the authorities, that the focus is on there being a contract, and by contract, one is looking for some more substantial matter that exists between the parties, not just picking in and dropping off, and one job only, but some sort of overarching thing. And that that has to be found as a start, and then if there is such a contract between the relevant parties, the next question is, does that contract have the character of transportation of goods and services in the requisite way. And it was that element to which the decisions in Booth and Aramex and Couriers Please were directed. Not the prior question of the existence of the contract. The contract of some substance. So, then, we have identified the need for that. We have identified what the elements are that go to the existence of a contract. We then have to consider what the signals from the evidence are."
Justice Peterson considered the observations of the Full Commission in Deltec International Courier Pty Ltd v Transport Workers Union of Australia (NSW Branch) (1993) 50 IR 341 ("Deltec") about the language used in the predecessor s 680(3) of the Industrial Relations Act 1991 "which appeared to deny the creation of a continuing relationship between a principal and a contract carrier" "relevant and useful to assist in an understanding of the meaning of" s 314(1): Cherry at 308.
His Honour then went on to refer to the 1993 General Carriers Determination which considered the use of the singular "load" in the definition of a contract of carriage in s 663(1) of the Industrial Relations Act 1991 and said: "The Full Commission there came to the conclusion that to limit the power to reinstate a contract of carriage to the reinstatement of a contract for the cartage of one-only load which would almost certainly have been was an absurdity which could not govern the meaning and effect of the legislation and that the singular "load" in the definition of contract carriage could be read in the plural…"
I agree with Hi-Trans's submissions that the alternative submission of the applicants that Sawa Transport and Hi-Trans are parties to an arrangement that results in a contract of carriage between them each time Sawa Transport provides transportation services to Hi-Trans for the purposes of s 314 of the IR Act is not supported by the text of the IR Act nor by the authorities such Cherry and/or the 1993 General Carriers Determination.
I turn to consider the evidence in respect of the applicants' primary case that asserts an implied contract.

Evidence about the purported implied contract of carriage

Mr Sawa's evidence about the purported implied contract of carriage

Mr Sawa did not include with his evidence a copy of any contract between Sawa Transport, or himself, and Hi-Trans.
In the First Sawa Statement, Mr Sawa refers to "an Agreement" provided to him by Mr Damien of Asset that Mr Sawa signed in 2013 and says that he does not have a copy of this "contract". Mr Sawa said: "3. I was engaged by Hi-Trans on or around 2013 and my contract was terminated by HiTrans on or around 8 May 2023. 4. Before starting work for Hi-Trans in 2013, I was sent an Agreement by Mr Allen Damien, Managing Director of Asset. I had to agree to these in order to perform work for Hi-Trans. 5. From the period of 2013 to 2018 I traded as Elie Transport Pty Ltd. In 2018 I changed my business name to Sawa Transport Pty Ltd. I did not sign a new written contract following the 2018 name change. However, my conditions of engagement with Hi Trans did not change. 6. I first became involved with Asset and Hi-Trans through a friend who suggested I contact Mr Damien who was looking for trucks. I was looking for work at that time so I contacted Allen [Damien] and signed a contract to start work for Hi-Trans. l do not have a copy of this document."
Mr Sawa said that he performed transportation services for Hi-Trans only, received all work direction from Hi-Trans, worked exclusively for Hi-Trans, was managed by Hi-Trans, and that his hours of work and work allocation were at the direction of Hi-Trans by way of text or daily run sheets. Mr Sawa said that he wore a Hi-Trans's uniform and drove a vehicle marked with a Hi-Trans's driver number: pars 12 - 20. Mr Sawa said that he submitted run sheets to Hi-Trans each day and also photographed and sent these run sheets to Asset. Mr Sawa said that Sawa Transport was paid by Asset after it was paid by Hi-Trans: par 19.
Mr Sawa said that other than sending a copy of the run sheets to Asset, over the 10 years he provided services to Hi-Trans he had very little contact with Mr Damien other than a safety check every two years: par 32.
Mr Sawa said that Sawa Transport was referred to as a 'cover truck' because Mr Sawa and Sawa Transport did not have a permanent run and often covered shortages. Sawa Transport was required to perform pickup and delivery of freight five days per week: par 13. Mr Sawa would begin work between 6:00am and 7:00am in the morning and finish between 5:00pm and 7:00pm in the evening, or between 9:00pm and 12:00am in peak periods such as Christmas: par 12.
In cross-examination Mr Sawa was asked about the period of time around which the purported contract of carriage with Hi-Trans was formed and the document Mr Sawa signed with Asset at that time: Q. And so when you approached Asset, you were looking to do work for them as a driver with a truck? A. Not actually for them, because he's - I heard from a friend, like, he - "There's a guy looking for trucks and he will make you subby contractor with a companies. So, he's looking for trucks and drivers." And when-- Q. Very good. A. Yes. Q. And you signed a document with Asset in relation to you doing work with your truck as a driver? A. That's right. Q. That's the document that you don't have a copy of anymore and which we've heard can't be found within the records of Asset? A. Correct. Q. You were paid by Asset for the driving work which you carried out, weren't you? A. Correct. Q. And you issued invoices to Asset in order that you could get paid? A. Right. Q. Those invoices or at least some of them are attached to your first statement, aren't they? A. Right. Q. Yes. That's the attachment or annexure that's labelled SS-01. A. Right. Q. And the documents there, take the form of a tax invoice, yes? A. Yep. Q. And you understand what a tax invoice is? A. Right. Q. And you understand that the role a tax invoice plays within the GST system? A. Correct. Q. The Goods and Services tax system. A. Yep. Q. So, you or your company, Sawa Transport Pty Limited, would issue these invoices to Asset from time to time. A. Well, I've been told from Asset and Hi-Trans, at the end of the day, every paperwork, we keep the original with Hi-Trans and we make a copy for Allen Asset. That's what I've been told. Q. I might ask you just to have a look at SS-01, just so that the questioning which follows is fairly put. So, if you turn to the first page-- A. Yep. Q. --of those annexures, and it says at the top, "tax invoice". That's my own preoccupation, tax office. Tax invoice 644. And it's got an addressee. It says to Asset Global Transport, and there is an address underneath, which is the address for-- A. Correct. Q. --Asset. And then it's got underneath that name, being the name of your company. A. Mm-hm. Q. And then driver ID, S66E. A. Which is me, yep. Q. And the address of your company, which is in Oran Park. A. Correct. Q. And the ABN of your company follows. And then underneath, it's got details of jobs. A. Correct. Q. And they are the jobs that you are looking to be paid for. A. Correct. Q. And it sets out a date and job number, and if you go over a bit further, there is quantity which I take it is the period of time that was taken-- A. The hours. The hours. How many hours a day, yeah. Q. The hours taken in doing the job. A. Yep. Q. And then there is a total. A. Right. Q. Which is the fee or remuneration that your company is looking to be paid-- A. Right. Q. --for doing that delivery job for those hours. A. Mm-hm. Q. And so, that's all going to Asset Global Transport. A. Yep. Q. And then they pay you. A. That's right.
Mr Sawa was also asked in cross-examination about the payments to him from Asset being higher than the payments from Hi-Trans to Asset: Q. A moment ago, I spoke to you about the payment which Hi-Trans makes to Asset, being less than the payment that Asset makes to you. And you gave evidence to the effect that that was contrary to your understanding. You would have thought it was more. A. Mm-hm. Q. That's right. I wanted to put some information to you, just so that that point can be fully and fairly explored. I don't know, have you seen the statement of Monica Attar, that she signed in these proceedings? A. I don't remember, no. Q. You have commented upon it in your reply statement, so it must have been shown at some stage. A. That's right, yep. Yes. Q. Ms Attar has attached to her statement, a number of the invoices which Hi-Trans would send to Asset. A. Mm-hm. Q. So, we can do a bit of a matching up. We can look at dates on your invoices for the delivery work that you did, which your company invoiced to Asset, and we can look at what Hi-Trans was invoicing. I am wondering if I could trouble you to look at your SS-01-- A. Uh-huh. Q. --and find the entry for 17 April 2023? A. I can't find it. Yeah. Q. Have you found that? A. Yes. Yes, sir. Q. Thank you. For the Chief Commissioner and for my colleague, could I ask you to have at the ready, attachment MA02 of Ms Attard's statement? And if you could go to the fifth page? Now, sticking for the moment, with the invoice Mr Sawa, that I directed you to. You see there, there is an entry 17/04/2023, job 13828, can you see that? A. I'm sorry, which one? 17-- Q. Yes, 17 April. A. Which page, sorry? Q. 15 at the top. A. Yeah. Q. 17 April 2023, job number 13828. A. 13828, yeah. Q. Quantity, 11. So, that's 11 hours. A. That's right. Q. $737? A. Mm-hmm. CROSS: To the Chief Commissioner and to my colleague, the fifth page in on MA02, it's here that my failure to paginate this document looms large. Q. But on the fifth page you come through and it should have at the top, 17/04/2023 and we see there it's job 13828 and the amount for the 11 hours is $687.61. So, you were charging Asset 737, on this invoice, Hi-Trans was paying to Asset $687.61, that's a lower amount, isn't it? A. That's right. Q. I'll put it to you - I won't take you to all of them - but wherever there's an overlap in dates between your invoices and the Hi-Trans invoices to Asset, the amount that Hi-Trans is paying to Asset is less than what Asset is paying to you. And so there seems to be a disconnection between the rate of pay that has been sorted out between you and Asset and whatever it is that is the agreed commercial rate for what goes on between Asset and Hi-Trans. A. Mm-hmm. Q. There's a disconnection. A. Okay. Q. Or to put it another way, it's not a direct pass through. It's not a situation where it seems that Hi-Trans is saying, "Whatever you're paying Mr Sawa and his transport company, we're covering you for that, plus a little bit of fat for your own profit." That's not happening, is it? A. To be honest with you, I don't know.
In his email to Hi-Trans which is Annexure SS-05 to the First Sawa Statement, Mr Damien said: "Hi Monica, Sam S66E has shared a text with me saying that there is no work, and he should talk to Asset about this, for the past 9 years. Sam has received instructions for work daily from Hi Trans directly. Asset has not been informed of any change to the structure, can you please confirm immediately what's going on? Regards, Allen Damien | Managing Director"

Hi-Trans's evidence about the purported contract of carriage between Sawa Transport and Hi-Trans

In her statement Ms Attard said: 3. … Hi-Trans is party to contracts with a range of parties for the provision of trucks and drivers to perform transport work. 4. The parties with whom Hi-Trans has such contracts fall into two broad categories: a. Owner-drivers - who are parties that own/operate a single vehicle, which they then provide under the contract to carry out transport work for Hi-Trans. b. Fleet owners - who are parties that operate or have access to a number of trucks which are provided under contract to carry out transport work for Hi-Trans. 5. … Hi-Trans ha[s] a relationship with Asset Global Transport Pty Ltd (Asset). Asset operates a transport services business from premises in the same suburb as Hi-Trans. Asset operates, or has access to, a significant number of trucks. 6. At the time I started in my role in 2019, I noted the features of the relationship with Asset from information in Hi-Trans' business records. These features have continued since 2019 and to the present: a. A number of trucks and drivers are supplied to Hi-Trans to perform transport work, including Mr Sawa. This had been occurring for some years before I came on board. b. Some of the trucks and drivers supplied by Asset are deployed by Hi-Trans on specific runs for particular customers of Hi-Trans, usually because the truck had attributes that made it suitable for that work. Other trucks and drivers are used on an ad hoc or fill-in basis to cover gaps in the trucks otherwise available to Hi Trans. c. Hi-Trans established a trading account with Asset in 2011. The written application for this account is Attachment MA-01. d. Hi-Trans prepares, on behalf of Asset, invoices drawn from its records of the work carried out by trucks and drivers supplied from Asset. The invoices are processed by Hi-Trans and payment is made to Asset. Examples of such invoices are at Attachment MA-02. e. Hi-Trans communicates with Asset about the trucks that are needed and matters relating to availability of trucks, commencement/cessation of work and so on. Some examples of such communications are at Attachment MA-03. f. Hi-Trans communicates with Asset's drivers about work runs, scheduling, and general operational issues. g. The Asset drivers use a PDA unit supplied by Hi-Trans to facilitate performance of the transport work. This is the same for owner-drivers engaged by Hi-Trans. The Asset drivers have Hi-Trans decals on their trucks and wear uniforms, in the same way as the owner drivers engaged y Hi-Trans. h. Asset drivers and owner drivers are given a numerical designation within the records and operating system of Hi-Trans. The Applicant had the designation S66E. … 8. As at the date of this statement there are two [Asset drivers performing work for Hi-Trans], being S66M and S66O. 9. The group of drivers sourced from Asset has changed according to the volume and type of work which Hi-Trans is engaged to perform by its customers.
Paragraphs 3 to 9 of Ms Attard's statement, while acknowledging that Hi-Trans exercises control over Asset's drivers, do not support the existence of a contract between Mr Sawa or Sawa Transport and Hi-Trans.
In cross-examination, Ms Attard acknowledged that the drivers engaged through Asset work as directed by Hi-Trans: Tcpt, p 32-33, and Hi-Trans coordinates the deliveries and pick ups of the drivers: Tcpt, p 34.

Consideration of the evidence as to the purported implied contract of carriage

I agree with Hi-Trans's submission that the correspondence between Mr Damien and Hi-Trans which is Annexure SS-05, to the extent it might be evidence of the existence of a contract, is consistent with there being a contract between Sawa Transport and Asset and that the correspondence does not support the assertion in paragraph 51 of the First Sawa Statement that Mr Damien was addressing with Hi-Trans why "my contract" was terminated.
I agree with Hi-Trans that the content of the email is, on balance, consistent with there being a contract between Sawa Transport and Asset but the email is not determinative of the terms of that asserted contract.
This email also contains an acknowledgement from Mr Damien of the control exercised by Hi-Trans over Mr Sawa for a period of nine years which is supportive of the applicants' case.
I accept that Mr Sawa's evidence establishes a level of control and direction by Hi-Trans of Mr Sawa and/or Sawa Transport in relation to the transportation of goods. However, the exercise of control and direction by Hi-Trans, on its own, does not necessarily establish that a contract of carriage existed between Mr Sawa and/or Sawa Transport and Hi-Trans.
The material in paragraphs 12 to 18 and 20 of the First Sawa Statement is not evidence which goes to the formation of a contract between Sawa Transport and Hi-Trans. This evidence relates to issues like the provision of equipment, the requirement to wear uniforms, supervision and the like, which are relevant where it is necessary to determine if a contract is one of service or for the provision of services. While the applicants sought to press the application on a similar basis, as Hi-Trans submitted, that is not the situation here. The issue here is whether a contract was formed between Sawa Transport and Hi-Trans such that the power to order reinstatement of the contract of carriage under Ch 6 is enlivened.
The evidence contained in pars 12 to 18 and 20 of the First Sawa Statement and SS-05 does not shift the position created by Mr Sawa's own evidence of a contract with Asset.
Ms Attard's evidence was consistent with Mr Sawa's in that it illustrated a significant level of control is exercised by Hi-Trans over the manner in which the deliveries are made by the Asset drivers.

Documents produced by Asset

The Summons referred to at [22] required production of: "Copies of any document showing a contractual relationship between Asset Global Pty Ltd and Sawa Transport Pty Ltd; and Copies of any document showing a contractual relationship between Asset Global Pty Ltd and the class of carriers to which Sawa Transport belongs."
The following documents were produced in response to the Summons: 1. Subcontractor's Statement signed by Mr Sawa in his capacity as director of Sawa Transport Pt Ltd dated 28 April 2021; 2. "Appendix A: Schedule Rate" created 1 September 2020; 3. "Driver Information" for Sam Sawa dated 29 July 2018; 4. Workers insurance certificate of currency issued by icare in respect of Sawa Transport Pty Ltd dated 10 May 2021; and 5. Workers insurance certificate of currency issued by icare in respect of Sawa Transport Pty Ltd dated 29 May 2022 ("Documents Produced").
The Documents Produced are relevant to the extent that they record, or allow inferences to be drawn about, the existence of a contract between the Mr Sawa and/or Sawa Transport and Hi-Trans or Mr Sawa and/or Sawa Transport and Asset, and the terms of any such contract.
The applicants submitted that the Documents Produced do not establish a contractual relationship between Sawa Transport and Asset. Rather, the documents simply record information about Mr Sawa, Sawa Transport, Mr Sawa's vehicle, his hourly rate, and bank details for facilitating payment and proof of insurance. The applicants submitted that the Subcontractor's Statement does not establish the nature of any contract beyond absolving Asset of liability for worker's compensation, payroll tax and remuneration.
The applicants asserted both prior to and following production of the Documents Produced that the only written contract in the possession of Hi-Trans in relation to Asset is one that establishes a financial relationship between Hi-Trans and Asset and it is the conduct of the parties that assists with the identification of the terms of the relevant contract of carriage.
The applicants submitted that the Documents Produced, supported a finding that: 1. Sawa Transport performed a contract for the transportation of goods in the course of a business of transportation of goods of a particular kind by motor vehicle for the purposes of s 309(1)(c) of the IR Act; 2. Hi-Trans was the person for whom Sawa Transport agreed to transport the goods to which the contracts of carriage related for the purposes of s 310(1) of the IR Act; and 3. this contract was unfairly terminated by Hi-Trans on 8 May 2023.
Hi-Trans made more detailed submissions on the Documents Produced and submitted that the documents referred to at [95] support the existence of a contract between Mr Sawa and/or Sawa Transport and Asset in relation to the performance of work by Mr Sawa and/or Sawa Transport.
Hi-Trans submitted that the document set out in [95(1)] is a form of statement designed to engage with provisions in the IR Act, the Workers Compensation Act 1987 and the Payroll Tax Act 2007 under which the principal contractor, who has entered into a contract for the carrying out of work by the subcontractor, is relieved of certain liabilities that might otherwise be imposed in respect of employees of the subcontractor engaged in carrying out the relevant work. Hi-Trans submitted that the statement has been completed and signed on the basis that Asset is the principal contractor who has entered into a contract with Sawa Transport as the subcontractor. The statement serves a serious regulatory purpose. Hi-Trans submitted that it may be readily inferred that Mr Sawa and Asset were aware of that purpose, and that they would not have subscribed to the statement unless the state of affairs which the statement contemplates (the existence of a contract between Sawa Transport and Asset for the performance of work by Sawa Transport) was true. There is force to Hi-Trans's submissions on these matters.
The statement refers to a workers compensation insurance certificate of currency dated 10 May 2021 as an attachment. This appears to be the document described in [95(4)]. The document in paragraph [95(5)] is of the same kind but for a different insurance period.
There is also significant force to Hi-Trans's submission that it may be inferred that workers compensation and payroll tax documents were in the possession of Asset as part of the management by Asset of its potential liabilities to relevant employees of Sawa Transport arising from the existence of a contract between Asset, as principal contractor, and Sawa Transport, as subcontractor. More relevantly, there is nothing in these documents to suggest the involvement of Hi-Trans in any of the matters which the documents contemplate, noting again that the applicants do not assert any agency arrangements.
I agree with Hi-Trans that the document referred to at [95(3)] is inconsistent with the applicants' contentions. The document supports the existence of a contract between Sawa Transport and Asset in relation to the performance of work by Mr Sawa. This document appears to be an appendix to another document that has not been produced. The text and context suggest that the other document is, or was, a contract between Mr Sawa and/or Sawa Transport and Asset. This document records information pertaining to Mr Sawa and the vehicle used by him.
I accept Hi-Trans's submissions that the reference in the document to "truck and driver hourly rate" establishes that the purpose of the document is connected with the performance of transportation work by Mr Sawa through the nominated vehicle. The reference to a particular hourly rate for "Sydney metro" suggests a promise or proposal that the transportation work within that zone is to be paid for on the basis of that rate.
I also agree with Hi-Trans that this document stands as evidence that Asset maintained a record of certain information pertaining to the performance of transportation work by Mr Sawa and/or Sawa Transport, notably details of the person driving the vehicle and Juliana Sawa's bank account as the place to which payments by Asset for the transportation would be directed.
There is force to Hi-Trans's submission that the presence of the Asset name and logo on the document referred to at [95(2)] permits the inference, consistent with other evidence, that Asset undertook to pay Mr Sawa, and did in fact pay Mr Sawa or Sawa Transport, for that work. I agree with Hi-Trans that there is nothing in the document to suggest the involvement of it in any of the matters which the document contemplates, in particular the promise or proposal to pay the stated rate for transportation work of the requisite type. I also agree with Hi-Trans that this is consistent with evidence given in cross-examination by Mr Sawa that if payment was not made for work performed, he would go to Asset about it. I note also that the evidence established Mr Sawa was paid different rates or amounts, at least at times, for the transportation of goods than the amounts that Hi-Trans paid to Asset. There are clear indications that the common, objective intention of Asset and Mr Sawa was Mr Sawa and/or Sawa Transport had an enforceable right to payment from the former for the transportation work. Again, it is to be noted that the applicants have disavowed any contention that Asset was acting as agent for Hi-Trans.
The Documents Produced do not support the applicants' contention that there is an implied contract between Hi-Trans and Mr Sawa and/or Sawa Transport within the meaning of s 309 of the IR Act.
The Documents Produced allow for a strong inference that there was a contract between Asset and Mr Sawa and/or Sawa Transport but they do not establish such a contract of carriage. However, as set out above, it is not necessary for Hi-Trans to establish that a contract of carriage existed between Asset and Mr Sawa and/or Sawa Transport in order to defend the Application.

Conclusion

The applicants bear the onus of establishing that: a contract was formed between Mr Sawa and/or Sawa Transport and Hi-Trans; the contract was a contract of carriage for the purposes of s 309 of the IR Act; and the contract was terminated by Hi-Trans.
The applicants contended that: in 2013 Hi-Trans engaged Mr Sawa and/or Sawa Transport with Asset acting as an "intermediary", resulting in a contract being formed between Hi-Trans and Sawa Transport; and this contract was terminated by HiTrans on or around 8 May 2023. The applicants did not assert that Asset was an agent for Mr Sawa or Sawa Transport and disavowed the application of s 310(2) of the IR Act in these circumstances.
Mr Sawa's evidence to the Commission was that he no longer had a copy of the contract that he signed in connection with the dealings he had with Mr Damien in 2013. No such document was obtained from Asset. No written contract of carriage, whether between Sawa Transport or Mr Sawa and Asset or between Sawa Transport or Mr Sawa and Hi-Trans, was produced by either party or otherwise emerged from the evidence or Documents Produced.
In summary, the evidence and the Documents Produced established the following: 1. the existence of an offer from Mr Damien to Mr Sawa in 2013 to enter into a contract or arrangement with Asset; 2. Mr Sawa's acceptance of that offer from Asset; 3. the recording of the terms of the contract between Mr Sawa and Asset in a written document; 4. consideration moving between Mr Sawa and Asset; 5. a mutual intention to create enforceable relations that Mr Sawa would carry out transport runs for a third party; 6. Mr Sawa issued invoices to Asset and Asset paid Mr Sawa in response to the invoices; and 7. control and direction were exercised by Hi-Trans over Mr Sawa and/or Sawa Transport relating to issues like the provision of equipment, the requirement to wear uniforms, supervision and the like.
The applicants rely on the conduct that took place after 2013 as evidence of the formation of a contract between Mr Sawa and/or Sawa Transport and Hi-Trans in 2013, in particular Hi-Trans's alleged coordination role, and the control exercised by Hi-Trans in respect of Mr Sawa's and/or Sawa Transport's activities.
The matters of "post-contractual" conduct on which the applicants rely are relevant where they enable permissible inferences to be drawn about the formation of a contract between Sawa Transport and Hi-Trans in 2013. The control and direction of Mr Sawa and Sawa Transport by Hi-Trans which was established does not, on its own, establish that a contract of carriage was formed between Mr Sawa or Sawa Transport and Hi-Trans for the purposes of s 314 of the IR Act. I accept that these matters are also consistent with the existence of a contract between Sawa Transport and Asset containing a term whereby Sawa Transport was obliged by Asset to comply with directions issued by Hi-Trans.
As a statutory tribunal, the Commission's powers are as prescribed by the legislature. As Commissioner Sloan noted in considering the statutory scheme enabling the Commissioner of Police to medically retire police officers under the Police Act 1990, and its interaction with: the Commission's powers under Ch 3 of the IR Act; the Commission's obligations arising under s 163 of the IR Act; and the objects set out in s 3 of the IR Act, in Police Association of New South Wales (obo Alchin) v Commissioner of Police [2023] NSWIRComm 1003 at [99]: [90] … ss 3 and 163 of the Industrial Relations Act operate as part of, and must be construed within, the structure of that Act as a whole. The requirements on the Commission to eschew legal and other technicalities, and to act according to equity, good conscience and the substantial merits of a case, should not be seen as calling for an approach which is at odds with the scheme established by the legislature. …
The Commission's obligation under s 163 of the IR Act to be non-technical does not extend to overlooking the parties' obligation to establish the factual elements or matters giving rise to circumstances where the Commission has the power to intervene.
In circumstances where the Parliament has provided for powers to deal with contracts of carriage and where there is no definition of contract in these provisions of the type found in Pt 9 of Ch 2 of the IR Act, and the applicants have disavowed the "agency" and "anti-avoidance" sections of the IR Act the Commission must limit its intervention to dealing with circumstances where the applicants are able to establish the essential elements of a contract of carriage with the purported principal contractor, including an offer, acceptance, consideration, the intention to create legal relations, and certainty of terms. The applicants' evidence did not establish these elements.
The Application must be dismissed as the asserted contract of carriage between Sawa Transport and/or Mr Sawa and Hi-Trans which the applicants sought to be reinstated has not been established.

Orders

The Application is dismissed. N J Constant Chief Commissioner

Endnote

The two quotations are from, respectively, Australian Woollen Mills Pty Ltd v The Commonwealth (1954) 92 CLR 424 at 457, per Dixon CJ, Williams, Webb, Fullagar and Kitto JJ and South Australia v The Commonwealth (1962) 108 CLR 130 at 154, per Windeyer J. 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: 15 April 2024

Industrial Arbitration Act 1940(NSW)

Industrial Arbitration (Amendment) Act 1979(NSW)

Industrial Relations Act 1991(NSW)

[2002] NSWIRComm 1046

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