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Transport Workers' Union of New South Wales (on Behalf of RRA Enterprises Pty Ltd) v Corporate Express Supply Chain Pty Limited Trading as Staples - [2015] NSWIRComm 1022 - NSWIRComm 2015 case summary — Zoe
I have made a finding in this matter, in a decision styled Transport Workers' Union of New South Wales (on Behalf of RRA Enterprises Pty Ltd) v Corporate Express Supply Chain Pty Limited Trading as Staples (No 1) [2015] NSWIRComm 1021 that the termination of the contract of carriage to which this matter refers was unfair, as that word has been understood in the jurisprudence of the Commission going to Part 9 of the Industrial Relations Act 1996. Essentially, I made that finding because in the very particular factual circumstances of this case the termination of the contract was, in my view, disproportionate to the single act for which that termination was effected.
I note that the termination of the contract of carriage was not effected for any other reason than the one specific instance that was cited in the letter conveying the termination of the contract, and was not effected on the basis of any assertion by the principal contractor of dishonesty or lack of trust.
Having found that the termination of the contract was unfair, the statutory scheme contained within the Act then turns, in the absence of a reinstatement of the contract, to compensation. The statute, in fact, provides that s 314(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 the carrier, an amount of compensation not exceeding the amount of remuneration ... during the period of 6 months",
I paraphrase the last few words.
It is clear from the statute that the parliament has given the Commission a discretionary power to award compensation. It is not the case that a finding of unfairness about the termination of a contract must lead to compensation being awarded; rather, the Commission "may" - that is, in its discretion - award compensation.
Of course, that only arises if the Commission considers it would be impracticable to make a determination of reinstatement. Here, in the end, reinstatement was not sought. In a notional sense, the application was for reinstatement but for a range of reasons, including the wishes of the applicant, it is not practicable for the Commission to order reinstatement. I do not see that the fact that reinstatement was in terms not pressed for puts the Commission outside the circumstances of sub s 314(4).
As the Full Commission held in D & R Commercial Pty Limited v Flood (2002) 113 IR 244 at 263, where discretionary compensation within the provisions of the Industrial Relations Act is addressed - that case, I interpose, was a s 84 case, but it matters not - is not to be calculated in any particular, any arithmetic or any definitive way.
Of course, in calculating compensation under any statutory scheme, the Commission must, as was also said in Flood, have regard to the boundaries of the jurisdiction to award compensation which is provided by the statute and must have regard to where any decision about the award of compensation places that award, in a relative sense, against those boundaries. Here the statutory maximum provided by the parliament is 26 weeks. That would translate, in this particular case, 26 weeks to a sum of $59,942, excluding, as I do, any regard for goods and services tax.
I am bound to stress that an award of compensation, like sentencing, is ultimately a synthesis of things. It is neither possible nor appropriate for the Commission to roll out a mathematical table showing notional sums, deductions, reductions and the like, to demonstrate how any ultimate figure is arrived at. That would not be a proper way to form a view about compensation and it is not the way in which I approach my task today.
Thus, while I very certainly have regard to exhibit 11 and the statements of earnings there, I have regard to Mr Barlow's evidence, unchallenged evidence, about the sum which would have been paid to the contractor in the previous six months and I do agree with the parties' hasty view, but I think properly formed view, that so far as running costs are to be weighed against earnings, the schedule A to the Contract Determination made by this Commission does give a guide, I do not propose to set out a table of calculations in this case.
That is the more so as here matters that bear upon my judgment about compensation go beyond a simple formula of earnings, deductions from earnings, assessment about whether things might have been achieved and the like.
I do have regard particularly to the immediate period after a termination of a contract. There is scant evidence about the reasons that the applicant earned nothing in between the date of the termination of the contract in August 2014 and some moneys received in January 2015. The applicant gives some evidence about that matter, not supported by any documentation I note, but the evidence was not challenged. In principle, I accept the evidence the applicant gave to the Commission in his first statement to the effect that he was incapacitated under doctor's orders for a period, not exactly stated, after the termination of the contract. I have regard to that in considering and weighing the moneys he earned and, as I am bound to do under the statute, because the statute prescribes that I do, consider what he might have earned under any contract in forming a view about an appropriate sum in compensation, if compensation is to be awarded.
I then turn to the intangible question, intangible in any calculation of sum, of what I have characterised by using the words "disentitling conduct". In the decision I gave earlier today, I separated that conduct into two parts; that is the first being that the fact that the applicant's principal, Mr Moghaddam, proceeded to carry out work, which I am satisfied he must have understood required a licence, without a licence.
I do accept his contention that having been put by the employer through a forklift safety course and having been told that he passed it, he was entitled to form the view that the employer, at least within the premises in which he worked, regarded him as fit to carry out forklift work. But I am also conscious of the fact that on the evidence of Mr Daly, which evidence I accept, he was actively told by Mr Moghaddam that he had a forklift licence when the fact is that he did not have a forklift licence.
I agree with Mr Guy's submission that the disentitling effect of the lack of a licence itself is relatively small, given the employer's effective condonation of that conduct over a number of years. But the second aspect of the disentitling conduct to which I referred in my earlier decision concerns me more. That is conduct by Mr Moghaddam, as principal of the member of the union on whose behalf the application is made, which I am satisfied was less than candid with the principal contractor.
I have made a finding that that conduct occurred. It follows from that finding, although I did not say it in terms in my earlier decision, that so far as Mr Moghaddam continued to assert matters which I think are not fully frank to this Commissionin his sworn evidence, the conduct continued into these proceedings.
That led to a submission from the respondent, drawing on the authority of the Industrial Court in Gilmore v Allied Express Transport 2006 NSWIRComm 16. That decision was one in which Schmidt J found, based on authority, including the earlier authority of the Industrial Court in Saliba v John Hearder Pty Ltd (1986) 15 IR 36, that the giving of - I will use the word - false evidence by Miss Gilmore to the court in pursuit of a remedy, disentitled her to any remedy at all, even though the contract under which she had been employed was found to be egregiously unfair. I am urged to take the same view of the conduct here.
In my view, it does not necessarily follow that in the context of proceedings of this kind a failure to give fully candid evidence means that no remedy could possibly be awarded in a compensatory sense. That is not the view the Commission has formed in a number of cases pursuant to s 84 and its predecessors where applicant employees who have been dismissed have been found to have given evidence that is not fully frank yet they have been awarded a remedy. Equally, I note that matters under s.106 were adjudicated as if the remedies there awarded were in the nature of equitable remedies, so that the maxims of equity as to disentitling conduct necessarily had effect.
It seems to me that equitable relief, which is what Schmidt J was effectively dealing with in Gilmore, is not the same as statutory compensation, the more so when it is statutory compensation under a structured scheme which has its focus loss of income.
I interpose that I accept that the compensation is for that purpose and that purpose alone and it is not, in any way, to condemn or punish an employer or contractor and I have not based any of my reasoning in this case on the approach that it represents any kind of punishment or penalty which would be an erroneous approach.
It is true that I was not satisfied that Mr Moghaddam was candid with the principal contractor in the conversations he had with them about his licence and it is true that he maintained that position, which I do not accept, in his evidence to the Commission. I am, as I say, urged to hold that that means I should award no compensation at all.
On one view, that is an attractive submission. If a decisionmaker is provided with sworn evidence by a party seeking his discretion to award that party a remedy which the decisionmaker is not satisfied is true, should that not mean that the exercise of the discretion be turned flatly against that person? The answer, and I base this, as I say, on the jurisprudence of the Commission in unfair dismissal matters particularly, is that is not automatically and not necessarily always so.
The applicant, or the company RRA Enterprises Pty Ltd, on whose behalf this application is made, was deprived of an economic opportunity and I found that it was deprived of that opportunity unfairly, for reasons I have already given.
The conduct of the principal of RRA Enterprises Pty Ltd, Mr Moghaddam, in being less than candid with the principal contractor here has an effect which properly acts to diminish compensation than it might otherwise be awarded for economic loss. To put it another way, its conduct was is conduct which must weigh in the Commission's overall synthesis of what will be an appropriate amount of compensation in respect of the unfair bringing to an end of a contract. However, it does not, in the context of a statutory scheme designed to compensate for economic loss in a particular kind of worker, that is to say the junior party to a contract of carriage, eliminate any payment of compensation.
Parliament has intended, in my view, that compensation be provided to parties to contracts of carriage which are brought to an end having regard to the fact that a contractor of this kind, unlike an employee, will almost always have ongoing costs that continue after the contract ends. The parliament may well have had regard to the fact that contractors of this kind have very often borrowed, on the basis of an expectation of work continuing, to purchase their capital asset, their vehicle, and have paid in advance other costs, insurance and the like, on the basis of work continuing.
I have found that it was not the fault of RRA Enterprises Pty Ltd that the contract came to an end as and when it did because I found that the termination was disproportionate and therefore unfair. I accept on the evidence that there was economic loss to RRA Enterprises.
In my view, compensation is to be awarded. The maximum compensation that could be awarded on the facts fo this case under the statutory scheme is $59,000 odd. I award compensation of $12,000.
I ask that the parties be good enough to agree, if it is possible to agree, on orders that reflect that decision and file them within seven days.
PETER NEWALL
Commissioner
[2]
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Decision last updated: 18 November 2015
Parties
Applicant/Plaintiff:
Transport Workers' Union of New South Wales (on Behalf of RRA Enterprises Pty Ltd)
Respondent/Defendant:
Corporate Express Supply Chain Pty Limited Trading as Staples