Transport Workers' Union of New South Wales (o/b John Power t/as John Power Pty Limited) v Forum Transport Pty Ltd

Industrial Relations Commission (NSW)|2010-11-19

Ms E Brus, barrister (Respondent) Ms A Ford, solicitor (Respondent) File Number(s): IRC 859 of 2010 IRC 1017 of 2010

DECISION 1This Decision concerns two applications filed by the Transport Workers Union of New South Wales ("the union") on behalf of John Power Pty Ltd against Forum Transport Pty Ltd ("the respondent"). 2One of the two applications filed is for a contract determination of reinstatement for John Power Pty Ltd against the respondent. That application was filed on 20 August 2010: IRC 859 of 2010, and was made pursuant to section 314 of the Industrial Relations Act 1996 (" the Act "). 3The other application is for relief from victimisation for John Power Pty Ltd against the respondent. That application was filed on 13 September 2010: IRC 1017 of 2010, and was made pursuant to section 213 of the Act . 4Conciliation of both files was unsuccessful and the two files were programmed for a hearing. Both files were joined by the Industrial Relations Commission of New South Wales ("the Commission") on 10 August 2010. 5The Hearing took place on 18 and 19 November 2010. 6At the Hearing, the union was represented by Mr N McIntosh, union official who called the following witnesses: Ken Hurst union official John Power John Power Pty Ltd Therese Walton union official Andrew Horst contract carrier Aaron Gauci contract carrier Mr Ken Hurst was not required for cross-examination. 7At the Hearing, the respondent was represented by Ms E Brus, barrister who was assisted by Ms A Ford, solicitor. Ms Brus called the following witnesses: Graham Harris sole director and shareholder Gareth Lewis operations allocator Tyron McFarlane national sales manager Daniel Williams clerical employee Mr Williams was not required for cross-examination. 8Arising out of final submissions before myself, I advised that the Commission may need to hear further from the parties in respect of a certain issue discussed in final submissions. Subsequently and upon reflection, the Commission did write to the parties and seek further input as to that certain issue. Another issue, overlooked by the parties, was also raised for a response. 9The Commission's correspondence is dated 24 November 2010. The first issue, about which notice was given to the parties during final submissions, is headed "double dipping". The other issue overlooked by the parties, is headed "out of time".

BACKGROUND 10John Power is a contract carrier, within the meaning of section 309 of the Ac t . 11Forum Transport Pty Ltd (the respondent) is the principal contractor, within the meaning of section 310 of the Act. 12The respondent is a taxi truck/courier company with vehicles in Sydney, Melbourne, Brisbane and Perth. The respondent, as such, provides a range of national delivery services including same day and overnight deliveries. The respondent engages contractors to perform the bulk of its deliveries. 13John Power had two contracts of carriage engagement with the respondent. 14The first contract of carriage engagement began on or about 2 March 2010. John Power had had his truck modified per the respondent's specifications in order to perform work. The modification went to having a large body tray (with a crane) installed. The contract was brought to an end by John Power in late April 2010. His reason for ending the contract of carriage was "the low amounts of money I was earning and the fact that I could no longer support myself or my family" (Exhibit 1, paragraph 8). 15During May 2010, John Power was contacted by the respondent about the possibility of returning to work for the respondent. 16In June 2010, the second contract of carriage engagement began with the respondent. There was an issue during the proceeding as to whether this second contract required John Power Pty Ltd to carry out work of an ad hoc kind or of a permanent kind. Ad hoc work means carrying out a variety of work/loads for numerous clients of the respondent when and where required. The evidence of John Power was that he had not been engaged to perform ad hoc work but to work exclusively for a certain client of the respondent: Humes Holcim (Australia) Pty Ltd ("Humes"). The respondent argued it was an ad hoc arrangement. 17Sometime in July 2010, John Power and three other drivers engaged by the respondent, talked to each other about their respective remuneration for the work performed for the respondent, as to their correct monetary entitlements. 18The Transport Workers Union was contacted and a meeting was held between the drivers and two union officials, around late July. The union officials provided industrial advice and John Power and the three other drivers, became members of the union. 19The respondent said that its officers (McFarlane and Harris) attended a quarterly operational meeting with Humes on 4 August. During that meeting, the respondent submitted it was notified by Humes, that Humes wanted John Power's truck replaced because it did not comply with its vehicle requirements due to its crane capacity being too small and there was not enough work available that John Power's truck could perform. 20On 6 August 2010, the drivers (including John Power), held a 6.00am meeting at the Humes yard. Work was to commence at 7:30am. The union officials were to attend this meeting but were not able to do so. 21On 9 August 2010, Mr McFarlane, national sales manager for the respondent, deposed he received a phone call from Shane from Humes. (Mr McFarlane had attended the quarterly operational meeting with Humes on 4 August.) Mr McFarlane advised that Shane was enquiring about the respondent's drivers apparently having a meeting on Humes' site and the union was there as well. Mr McFarlane said he was unaware of the meeting, would make enquiries of the drivers and let Shane know the outcome (Exhibit 11, paragraph 17). 22On that same day, 9 August, Mr McFarlane contacted the drivers by telephone in this sequence: John Power, Andrew Horst (a witness in the proceedings), Damon Maher and Aaron Gauci (a witness in the proceedings). 23John Power and Mr McFarlane gave differing accounts as to this telephone conversation. 24John Power deposed that the conversation only went to Mr McFarlane asking if John Power attended the meeting and if the union was present. The conversation concluded with Mr McFarlane advising that John Power no longer worked for the respondent (Exhibit 1, paragraph 20 to 22). 25Mr McFarlane deposed that the conversation went firstly to the meeting and if the union was present. Then the conversation went to the Humes meeting of 4 August and the need to take John Power and his truck out of Humes (Exhibit 11, paragraph 20). This meant that the second contract of engagement had been brought to an end on 9 August.

For the Union 26Mr McIntosh for the union put the following in final submissions: a) The union has two applications before the Commission. One application (IRC 859 of 2010) is an application seeking the reinstatement of the contract of carriage of John Power Pty Ltd pursuant to section 314 of the Act . The other application (IRC 1017 of 2010) is an application seeking relief from victimisation pursuant to section 213 of the Act . b) As to the section 314 application, the union submitted that the contract of carriage of John Power Pty Ltd was terminated by a phone call from Mr McFarlane (for the respondent) to John Power on 9 August 2010. That notice of termination was confirmed by a second phone call later that day between John Power and Mr McFarlane. That notice of termination was also confirmed the next day in a phone call between Therese Walton of the union and Mr McFarlane. c) The union said that the reason for the termination of the contract of carriage was the refusal of John Power to answer questions from Mr McFarlane about John Power's activity at a union meeting held on Humes work site. d) The above scenario was one that did not represent a valid reason for the termination of the contract of carriage. The termination was harsh given the commercial circumstances surrounding John Power's trucking business and his personal circumstances. e) The remedy sought for IRC 859 of 2010 was reinstatement of the contract of carriage and compensation for lost earnings. f) As to IRC 1017 of 2010, the union submitted that the contract of carriage of John Power Pty Ltd, had been terminated by Mr McFarlane because of John Power's union activity at the Humes worksite. In doing so, Mr McFarlane for the respondent, had breached section 210 (1) (a) of the Act which prohibits the respondent from victimising John Power because he is a member of a union. g) John Power is and was a member of the union at all relevant times. The respondent was either aware or suspected that John Power was a member of the union. h) Section 210 (1) (f) of the Act prohibits the respondent from victimising John Power because he informed a person (the union) of an alleged breach by the respondent of an industrial instrument. John Power had meetings with officials of the union and other drivers engaged by the respondent, before having his contract of carriage terminated. Those meetings related to possible breaches of the Transport Industry-(General Carriers) Contract Determination. i) In accordance with section 210 (2) of the Act , it is presumed that John Power has been victimised by the respondent because of his union activity. That is, the respondent carries the onus to show that the matters referred to in sections 210 (1) (a) or 210 (1) (f) were not "a substantial and operative cause of the detrimental action", in accordance with section 210 (2). j) The union sought the same remedies as for IRC 859 of 2010.

For the Respondent 27Ms Brus for the respondent put the following in final submissions: a) John Power entered into a contract of carriage with the respondent on or about 2 March 2010, and this was the first contract with the respondent. Ms Brus submitted that this first contract was an ad hoc work arrangement with John Power and required John Power working for numerous clients of the respondent when and where required, transporting different products. b) John Power purchased a standard truck and had it modified to enable the truck to perform ad hoc work for the respondent. His modified truck has a large body tray and a small crane making it ideal, Ms Brus submitted, for ad hoc work. c) John Power terminated his first contract with the respondent. d) In or about June 2010, John Power was engaged by the respondent under a second contract, which was verbally negotiated between John Power and Gareth Lewis on behalf of the respondent. e) Ms Brus submitted that this second contract went only to ad hoc work which included work for Humes. The respondent never meant that the work arrangement for the second contract would be permanent otherwise the respondent would have asked John Power to enter into a new written contract, which Ms Brus submitted was a standard procedure for the respondent. f) On 4 August 2010, Mr McFarlane and Graham Harris (director/owner) of the respondent, attended a quarterly operational meeting with Humes. During that meeting Humes notified the respondent that they wanted John Power's truck replaced because it did not comply with its vehicle requirements due to its crane capacity being too small. Further, Humes had mentioned to Mr McFarlane on numerous occasions, prior to 4 August 2010, that John Power's truck was not suitable. g) On Monday, 9 August 2010, Mr McFarlane contacted John Power by telephone and notified him that the respondent was unable to supply him with any more work for Humes and that Humes had directed the respondent to find a replacement for him. During that conversation, Mr McFarlane also enquired about a meeting that took place on Friday, 6 August 2010 at Humes premises involving John Power and other drivers and John Power refused to answer any of Mr McFarlane's questions about the meeting. h) The reason for termination of the contract of carriage by Mr McFarlane on 9 August 2010, accordingly, went to John Power's crane capacity being too small and was not related to his union activity. The respondent was unaware that John Power was a member of the union. Mr McFarlane was informed by an employee of Humes of a meeting that had taken place at Humes worksite but was not aware of any other specifics. The respondent therefore denied the unions claim of victimisation against John Power. i) The respondent opposed both applications.

Further Submissions 28Subsequent to final submissions, the Commission wrote to the parties on 24 November 2010, seeking clarification on two issues, being an out of time question and the concept of "double dipping". 29The out of time question had been flagged by the respondent but not addressed in final submissions. 30The "double dipping" issue had been discussed during final submissions. The union had sought findings from myself surrounding the "unfair dismissal" application. That is, the union sought a finding that the termination of the contract of carriage of John Power Pty Ltd was harsh and that there be an order for reinstatement of that contract of carriage with an order in respect of lost earnings. The union merely sought in respect of the victimisation application, that a finding of victimisation be held and did not seek that the Commission make any other order in respect of that victimisation application. The union put in final submissions that John Power could not have the benefit of two orders for compensation pursuant to the two applications. The Commission queried this submission on the day and the union responded with the concept of "double dipping". 31The Commission's correspondence sought to be addressed on this issue of "double dipping" and in that regard referred to section 213 (2) (c) of the Act . That section of the Act deals with an order that can be made by the Commission in respect of a victimisation claim and refers to lost remuneration or other financial benefits foregone. The Commission queried how it might be said that that section could be described as "double dipping", that is, be a mirror image of the remedy (remedies) available under the "unfair dismissal" regime contained in the Act . 32The parties replied to the foregoing correspondence on 8 December 2010.

CONSIDERATION 33The Commission has before it, two applications for consideration. One application is for a contract determination of reinstatement for John Power Pty Ltd against the respondent: IRC 859 of 2010 ("unfair dismissal application"). The other application is for relief from victimisation for John Power Pty Ltd against the respondent: IRC 1017 of 2010 ("victimisation application").

CONTRACT DETERMINATION OF REINSTATEMENT CLAIM 34The union has made an application for a contract determination of reinstatement for John Power Pty Ltd. 35The Commission has the jurisdiction to entertain this application given that John Power Pty Ltd is a contract carrier, carrying out a contract of carriage within the meaning of section 309 of the Act, and the respondent is a principal contractor within the meaning of section 310 of the Act. 36Mr McFarlane for the respondent, confirmed that he terminated the contract of carriage of John Power Pty Ltd in his telephone conversation to John Power on Monday 9 August 2010 (Tr 19/11/10, p14 line 19-22). 37The union submitted that the termination of the contract of carriage was not a valid termination. The union said the termination arose out of the refusal of John Power to answer questions from Mr McFarlane about the contractors' meeting of Friday 6 August and whether the union was present at that meeting. John Power deposed he was asked the following about the meeting: who was there; was the union present; and who was the instigator. For all of these questions, John Power responded that he was not going to discuss these matters with Mr McFarlane. He then states that he was told he was no longer working for the respondent (Exhibit 1, paragraph 20). 38The respondent denied this claim. The witness statement of Mr McFarlane sets out his version of that telephone conversation. His version has him asking questions of John Power about the meeting and whether the union was on site. John Power allegedly said he didn't know anything about a meeting; said he could not say anything without first consulting with the other contractors; and gave no response as to whether the union was on site or not. He then deposed that he said to John Power that he had no concerns with him having meetings but approval should be sought first when meeting on the site of the respondent's client. If John Power had any concerns then he should come to the respondent to discuss the same. Relevantly, for the issue of whether there was a valid reason for the termination of the second contract of carriage, Mr McFarlane then advised John Power of the decision of Humes taken on 4 August, that it wanted John Power and his truck out of Humes because his vehicle capabilities were not suitable for Humes work (Exhibit 11, paragraph 20). 39Having considered the alleged decision of Humes, that the vehicle capabilities of John Power's truck were not suitable, the Commission finds that the evidence does not support that alleged decision of Humes. The Commission's reasoning is set out below. 40Firstly. John Power said that no person at Humes raised any issue about John Power's vehicle capabilities for the carrying out of work designated by Humes (Tr.18/11/10, p30 line 6-11). 41Secondly. John Power said that no person connected with the respondent, raised any issue about his vehicle capabilities for the work undertaken at Humes (Tr.18/11/10, p30 line 15-28). 42Thirdly. That second contract of engagement with the respondent was only for several weeks when it was brought to an end by Mr McFarlane for the respondent. But in that period of time, John Power's truck carted about 105 loads of which 103 loads were exclusively for Humes (Tr 18/11/10, p29 line 26-42). As to the two loads not for Humes, one load was at night and not during the hours of work that he worked for Humes. As to the other job, he protested to the respondent when it pulled him off Hume's work to do a load to Palm Beach (Tr 18/11/10, p19 line 47 to p20, line 5). 43Fourthly. John Power gave evidence that he never had to refuse a load from Humes (Tr.18/11/10, p29 line48-50). This evidence was given in response to a question comparing how much weight his truck's crane could lift compared to the crane lifting capacity of the trucks of Mr Gauci and Mr Horst. The trucks of the latter two contract carriers had cranes whose lifting capacity was said to be slightly more than that of John Power's crane. These two contract carriers are engaged by the respondent to work exclusively for Humes. Despite that alleged slightly better lifting capacity, John Power never had to refuse a load from Humes. Mr McFarlane confirmed he was not aware of John Power ever having to refuse a load from Humes because his truck wasn't capable of carrying it (Tr.19/11/10, p12 line15-17). 44Fifthly. No person from Humes gave evidence in the proceedings. As such, there was no evidence from any person employed by Humes, that Humes had issued a direction on 4 August to the respondent that John Power's truck was not capable of carrying the load required by Humes and that his crane was not large enough (Exhibit 11, paragraph 15). The alleged direction from Humes stands in contrast to the evidence extracted above that John Power had never been advised by any person from Humes that his truck or crane capacity were inadequate; had never been advised by any person from the respondent that his truck or crane capacity were inadequate; and had carted 103 out of 105 loads exclusively (103 out of 105 loads) for Humes during his second engagement. 45Sixthly. There was some documentary evidence (Attachments C, D and E) put forward by Mr McFarlane to support his claim about the alleged direction from Humes. Attachment C to his witness statement, is a letter dated 9 September 2010 and on a Humes letterhead. This letter is dated after the termination of the contract of carriage of John Power. Mr McFarlane relies upon the letter as proof that Humes required a truck of certain specifications for the performance of their work. John Power's truck was not built to those certain specifications and that supports his claim that Humes issued a direction on 4 August that John Power's truck was not suitable. Be that as it may, for the reasons set out above, the evidence shows that John Power worked virtually exclusively (103 out of 105 loads) for Humes and without adverse comment from either Humes or the respondent. 46Attachment D to Mr McFarlane's witness statement, is a copy of an e-mail meeting request which lists some agenda items including the agenda item "change of driver". The agenda and this particular agenda item is for the meeting of 4 August 2010. The Commission notes that the agenda item "change of driver", has no explanation attached to the meaning of that agenda item. No name is identified. 47Attachment E to Mr McFarlane's witness statement, is a typed summary of what was discussed at 4 August meeting. The typed summary is taken from, Mr McFarlane said, hand written notes he took at the meeting. The typed summary, at item four, says that there was a discussion about a replacement truck and that "John Power crane not large enough and suitable truck needs to be sort." The Commission notes that this typed summary was authored by Mr McFarlane and is a self serving document in support of his claim of a direction from Humes to replace John Power's truck. There is no evidence, in person or in writing, from Humes that it issued a direction to the respondent's officers (McFarlane and Harris) on 4 August to replace John Power's truck because it was not suitable. Again, this self serving document as to the alleged direction given by Humes, stands in contrast to and does not overcome the fact that John Power was working virtually exclusively for Humes (103 out of 105 loads), without adverse comment from Humes or the respondent, as to his truck's carrying capacity or crane capacity. 48Seventhly. Mr Harris (sole director and shareholder of the respondent) gave evidence that he had attended the 4 August meeting with Mr McFarlane at Hume's site. He deposed that Shane from Humes said words to the effect, "When are you going to look at replacing John Power"; "You [Forum/the respondent] tendered to supply certain vehicles and we need you to uphold your end of our contract by supplying the vehicles we tendered for"; and "It is inconvenient juggling loads around to suit the Powers truck so it has to go" (Exhibit 8, paragraph 10). This evidence from Mr Harris supported Mr McFarlane's account that a direction was issued by Humes about John Power's truck and its unsuitability. The Commission is not persuaded by this evidence of Mr Harris. 49The last quote given above is that Shane from Humes talked about the inconvenience of juggling loads around to suit John Power's truck. If it was inconvenient, then how is it that Humes, according to John Power, never made any such comment to him? If it was inconvenient, then how is it that John Power carted some 103 out of 105 loads for Humes? 50Further to the foregoing question, is the evidence of Mr Harris given under cross-examination only that Humes had raised on a previous occasion(s) that John Power's truck was unsuitable: "I have monthly meetings with Humes and it was brought up at those meetings that they've had to reschedule loads and move loads around and they're sick of doing it and they need the Power's truck replaced with the vehicle that we tendered, the exact vehicle that we tendered to do the job with". (Tr 18/11/10 p66, line 48 to p67, line6) 51That response from Mr Harris is stating that the unsuitability of John Power's truck had been raised at a previous respondent/Humes meeting of at least one month before the 4 August meeting - say early July. It is curious that, despite Humes raising the unsuitability issue at a prior monthly meeting (according to Mr Harris), the respondent said nothing of this to John Power at that time - early July. If Humes was being inconvenienced and sickened by having to juggle loads around to suit John Power's truck, then why did not Humes say something to John Power? How is it, that John Power carted 103 out of 105 loads exclusively for Humes which the Commission was told was inconvenienced and sickened by his doing so? 52The Commission takes the view that this new evidence of Mr Harris as to an earlier (early July meeting) Humes direction about John Power's truck unsuitability is not plausible. Despite the alleged complaint of Humes to its other contractual party (the respondent), the latter did not act upon the complaint given in early July. 53The lack of plausibility about this new evidence concerning the July meeting complaint, casts doubt on Mr Harris' evidence that Shane from Humes issued a directive at the 4 August meeting as to the unsuitability of John Power's truck. 54Accordingly, for the reasoning set out above, the Commission finds that Mr McFarlane did not tell John Power in his telephone conversation to him on 9 August, that Humes had issued a direction to the respondent's officers that John Power's truck was not suitable and had to be replaced. Further to that, the Commission then prefers the version of the conversation put forward by John Power in his witness statement (Exhibit 1, paragraph 20) to that of Mr McFarlane (Exhibit 11, paragraph 20) as to their telephone conversation of 9 August. 55The version of the conversation by John Power has two subject matters: (a) the meeting of Friday 6 August - did John Power attend the meeting - was the union present - who was the instigator; and (b) John Power being pulled out of Humes by Mr McFarlane: "Well in that case I'm pulling you out of Humes and you're no longer working for us" (Exhibit 1, paragraph 20). John Power then contacted the Union and was advised to confirm that his services had been terminated. John Power did so and Mr McFarlane confirmed that the contract had been terminated (Exhibit 1, paragraphs 21 & 22). 56Given that the Commission accepts John Power's version of the conversation, then the reason for the termination of the carriage contract had nothing to do with any directive from the management of Humes covering the suitability of John Power's truck. The reason for the termination of the carriage contract is not expressly stated as such, by Mr McFarlane. Rather, the inference is that the termination of the carriage contract relates to the drivers' meeting held on Humes' site, before start time, on Friday 6 August.

Conclusion 57The Commission has the jurisdiction, pursuant to section 314(1) of the Act , to make a contract determination for reinstatement of a contract of carriage "that has terminated". The respondent stated that Mr McFarlane had terminated the carriage contract of John Power Pty Ltd. 58Decisions of this Commission have applied the same principles in alleged unfair dismissal cases to alleged unfair terminations of contracts of carriage: Deltec International Courier Pty Limited v Transport Workers' Union of Australia, New South Wales Branch (1993) 50 IR 341 and Cherry v Allied Express Transport (1997) 73 IR 305. In determining whether a termination of a contract of carriage was unfair, "the Commission is to determine whether that termination was "harsh, unjust or unreasonable": Outboard World Pty Ltd t/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167. 59Having considered all of the evidence, the Commission finds that the termination of the contract of carriage of John Power Pty Ltd was unjust. 60The termination of the carriage contract was unjust because there was no valid reason for that termination. John Power had not engaged in any conduct warranting a reason for terminating his carriage contract. 61The primary relief sought by the union on behalf of John Power Pty Ltd is the reinstatement of his carriage contract with the respondent: that is, working exclusively for Humes (a client) of the respondent. Further, it is also sought that an order for the reinstatement of that particular carriage contract, be for a duration of two years - less the period already worked by John Power in performance of a two year contract which duration he said had been agreed between him and the respondent. 62In order to consider the two matters being sought as relief (working exclusively for Humes and for a two year period), the Commission will need to consider the type of work and contract under which John Power Pty Ltd was engaged on the second occasion. 63John Power said that his second contract with the respondent was one where he would be performing contracts of carriage for Humes out of its Rooty Hill site. He would be paid a minimum of $2500 per week (Exhibit 1, paragraph 12). Further, he deposed that the second contract was for a two-year period beginning from 21 June 2010 (Exhibit 2, paragraph 8). The respondent denied that John Power was engaged to work exclusively for Humes but rather had been engaged to perform ad hoc work. It was also denied that he had been engaged for a two-year period under the second contract with the respondent. 64For the reasoning set out below, the Commission prefers the evidence of John Power as to the terms of his second contract of carriage engagement with the respondent. That is, the Commission accepts that he was engaged to work exclusively for Humes and for a two year period. 65In coming to the decision to prefer the evidence of John Power that he was engaged to work exclusively for Humes (not carry out ad hoc work) and engaged for a two year period, it is important to set out the type of work arrangement that existed for John Power's first contract of carriage engagement with the respondent and why that first contract came to an end. That arrangement was an ad hoc work arrangement. That is, John Power carried out work for numerous clients of the respondent when and where required, transporting different products (Exhibit 11, paragraph 5). 66That first contract of carriage engagement lasted for only about two months (March to April 2010). This ad hoc work arrangement involved carting many different types of product, such as steel, escalators and pool lining. He would pick up these products from anywhere and deliver the products anywhere, which could be as far as Sydney to Newcastle. He deposed he rarely earned more than $2200 each week and that this often proved to be the maximum rather than the minimum amount that he earned during this two month period. This was largely due, he said, to the distances and time that each load would take. For example, when he carted product from Sydney to Newcastle he would barely earn enough money to make a profit. On 19 April 2010, he wrote an e-mail to a manager of the respondent expressing his concern about the low amounts of money that he was earning and that he could no longer support himself and his family on that type of money. The e-mail advised that John Power was only making $266 per week above the guaranteed minimum weekly income. He said that he was working for nothing. He stated that he was losing money on some jobs and gave an example as proof of that (Exhibit 11, Attachment B). 67On 21 April, Mr McFarlane wrote an e-mail to John Power expressing his belief that the work would pick up and offering to increase John Power's minimum weekly earnings to $2400 per week. John Power considered that offer but decided to go elsewhere and brought his first contract of carriage engagement to an end on 30 April 2010 (Exhibit 1, paragraphs 2 to 10). 68From the foregoing evidence, it can be seen that the ad hoc work arrangement and the $2200 per week remuneration was such that John Power decided to bring this first contract of carriage engagement to an end. The respondent's offer to increase the minimum guarantee to $2400 per week did not change John Power's mind. 69The last day on the job for that first contract was 30 April 2010. Sometime in May, the respondent initiated contact with John Power about his returning to work for the respondent. John Power identified a person called Rick, a dispatcher with the respondent, as the person who initiated contact with him. John Power deposed that he would only consider returning to work for the respondent provided that he worked out of Humes and was guaranteed $2500 minimum per week. He said to Rick that the ad hoc work from the first engagement meant that he could not support himself and the guaranteed weekly minimum was too low (Exhibit 1, paragraph 11). 70Sometime in June, John Power received another telephone call, initiated by the respondent and this time from a Gareth Lewis, Operations Allocator. There is a dispute between them as to the content of the conversation. However, there was a discussion, initiated by Mr Lewis, about John Power returning to work for the respondent. That telephone conversation ended with no discussion of offers. Later that day they spoke again on the telephone. According to Mr Lewis, John Power said as to returning to work for the respondent, that the minimum weekly guarantee of $2400 was not enough. A third telephone call was made that day by Mr Lewis to John Power. He said that after consulting with management, he could make the following offer: John Power would be paid a minimum weekly guarantee of $2500 and he would be "sent to work for Humes and any other customers that Forum (the respondent) services" (Exhibit 10, paragraph 5). He added that John Power said he would think about that offer. 71John Power rejected that Mr Lewis had said that the offer included working for "any other customers that Forum services". He said he would not have accepted that type of offer. He deposed that the "reason that I had originally left Forum was because of the nature of the ad hoc work and I certainly wouldn't have left a job at ITS (his current contract), which paid more than Forum , to come back and perform ad hoc work again with Forum. In fact I was performing only ad hoc work for ITS and so the prospect of performing only Humes work appealed to me" (Exhibit 2, paragraph 6). (emphasis added) 72The witness statement of Mr Lewis then records that John Power phoned him approximately 2 weeks after the last conversation. Mr Lewis says that John Power accepted Forum's offer made by Mr Lewis: that is, minimum weekly guarantee of $2500 and working for Humes and any other customers that Forum services. However, the witness statement of Mr Lewis then goes on to reiterate that offer, just set out, but adds a new term to the previously made offer. The new term is as follows, "with no guaranteed length of employment" (Exhibit 10, paragraph 6). The statement of Mr Lewis alleges that John Power accepted this offer, including the new term. 73John Power has already been recorded in this decision, denying that the offer included working for "any other customers that Forum services. He also rejected the reference to "with no guaranteed length of employment". He said this was never raised in discussions. Further, he said in his reply statement, that he had raised with Mr Lewis during their discussions, that he wanted a new contract. Mr Lewis allegedly responded "The previous contract will suffice and will go for two years beginning from 21 June 2010" (Exhibit 2, paragraph 8). 74Having set out the background to the first contract and the discussions surrounding the formation of the second contract, the Commission will now set out its reasoning below as to why it accepts that John Power was engaged to work exclusively for Humes and for a two year period. 75The respondent's case is that John Power was engaged the second time around to: (a) work for Humes and any other customers that the respondent services; (b) work for a minimum weekly guarantee of $2,500; and (c) with no guaranteed length of employment. In saying that that is the respondent's case, there needs to be a clarification. The evidence shows that the respondent's case is based around the evidence of Mr Gareth Lewis. It was he who negotiated the second contract with John Power. Mr Harris and Mr McFarlane were not privy to those contractual negotiations. 76There is no dispute between Gareth Lewis and John Power that they agreed on a minimum weekly guarantee of $2,500. It is the other two terms to the respondent's case that are in dispute. 77As to the term that John Power agreed to work for Humes and any other customers that the respondent services, the Commission rejects that John Power would have accepted such a term for his second engagement. 78John Power's first contract came to an end at his initiative because he was not making enough money. He deposed he rarely earned money more than $2,200 each week and that often proved to be the maximum rather than the minimum amount that he earned during the two month's duration of his first contract. On some loads he carted, he (his business) lost money. His email of 19 April, 2010 to a manager of the respondent advised that on the type of money he was making, he could no longer support himself and his family. He gave notice to terminate his contract. 79Mr McFarlane countered with an offer to increase his weekly minimum guarantee from $2,200 to $2,400 but John Power rejected this offer and decided to work elsewhere. This elsewhere is a transport company called ITS. 80The foregoing evidence establishes that ad hoc work and $2,200 weekly minimum guarantee was not a profitable business concern for John Power. Nor was ad hoc work and a promise of $2,400 weekly minimum guarantee, an enticement for John Power. 81The respondent, per Gareth Lewis, claims it offered Humes and ad hoc work, plus $2,500. The problem with this offer of the respondent, is that it lacks certainty for John Power. As the offer stands, it does not state what proportion of the work is for Humes and what proportion is ad hoc work. The offer in that regard is vague. For John Power to accept such an offer, could mean say one load for Humes but nine loads ad hoc. Why would he accept such uncertainty given his evidence of opposition to working on an ad hoc basis because of its adverse impact on his hip-pocket and hence for his family? 82When he gave notice to terminate the first contract (being ad hoc work), he was offered a weekly minimum guarantee of $2,400 but declined that offer. Why would he accept a vague offer as to Humes versus ad hoc work proportions for $100 more per week? How would an extra $100 offset the possibility of doing ad hoc work and of the type where he barely earned enough money to make a profit - the Sydney to Newcastle run? 83The benefit to John Power in working exclusively for Humes is that he avoided ad hoc work - not only from the hip-pocket point of view but as well the uncertainty of each day's work requirements. The latter comment is a reference to ad hoc work meaning that a driver picked up a load from anywhere and delivered anywhere at the direction of the respondent. With the Humes' work, the pick up point was always the same. The Humes' site was also nearby his home and this was convenient for John Power (Tr 18/11/10 - p15, line 22 to 33). 84Given the uncertainty of the alleged offer of the respondent (via Gareth Lewis) as to the proportion of work that was Humes and was ad hoc, the impact of ad hoc work on John Power's hip-pocket and hence his family when performing ad hoc work, the termination of the first contract by John Power because the work was ad hoc work, the cartage of 103 out of 105 loads for Humes during the second contract and the close proximity of the Humes site to his home, then the Commission finds that the second contract was one working exclusively for Humes. (Of the two loads not performed for Humes, one was done outside the hours of work for Humes and the other load was done at the direction of the respondent and under protest from John Power). 85An argument put by the respondent that it had not re-engaged John Power to work exclusively for Humes was the fact that John Power's truck did not have Humes' signage added to his truck. This argument has no merit when considering the terms of the contract negotiated between Gareth Lewis and John Power. Neither of the foregoing persons gave evidence that signage was raised during their negotiations and formed part of the second contract. 86Further to this signage issue was the respondent's case that to work for Humes, then it was a requirement to carry Humes' signage. On the respondent's case, it was put that John Power would be carting for Humes and carrying out ad hoc work as well. It seems to the Commission then that John Power's truck would need signage for this Humes' haulage but the respondent did not provide him with that signage. Given that his second engagement was for several weeks and in that time, he carted 103 out of 105 loads for Humes, it seems strange that his truck was not fitted out with Humes' signage. Perhaps an explanation is that signage is not the pressing issue it was made out to be by the respondent. Mr Harris gave evidence that the driver ("Jemmo") working for the respondent, at Humes, and replaced by John Power, did not have Humes signage on his truck (Tr 18/11/10 - p64, line 9 to 41). 87The other term of the second contract in dispute is its duration. According to Mr Lewis he added this term in last amongst the other terms and it read, "with no guaranteed length of employment" (Exhibit 10, paragraph 6). John Power disputes that term. He deposed that Gareth Lewis said, "The previous contract (that is, first contract) will suffice and will go for two years beginning 21 June, 2010" (Exhibit 2, paragraph 8). 88The Commission finds that Gareth Lewis made the offer as recorded by John Power. In finding that way, the Commission relies upon the circumstances surrounding John Power's re-engagement by the respondent. Thus, the respondent needed a replacement driver for "Jemmo". The respondent initiated (not the other way around) contact with John Power. The respondent knew that John Power brought the first contract to an end because of the type of work (ad hoc) and that his hip-pocket and his family accordingly were adversely affected. The respondent needed to hold out inducements to bring John Power back on board. The respondent did so by offering work of an exclusive kind at Humes and for a two year period. John Power's reply witness statement dealt with the filed witness statement of Gareth Lewis on this issue of Humes exclusivity and two year duration (Ex 2, para 6-9). He was cross-examined on his and Gareth Lewis versions of their competing conversations as to the terms of the second contract. Mr Power was not shaken from his version of the conversation (Tr 18/11/10 - p11 to p15, line 16). 89Another issue raised in the cross-examination of John Power went to the first part of, "The previous contract will suffice and it will go for two years beginning from 21 June, 2010." Ms Brus put to John Power that the words, "The previous contract will suffice..." made no sense (and therefore would not have been said by Gareth Lewis) given that the first contract was for ad hoc work and the second contract (as claimed by John Power) was for working exclusively for Humes and therefore not performing ad hoc work. The Commission sees no inconsistency/contradiction in the version of words put by John Power. The words, "The previous contract will suffice..." merely means that John Power is back on the books with the respondent and the first contract is varied by the terms agreed between John Power and Gareth Lewis. The agreed term of the second contract is $2500 guaranteed minimum per week. The disputed terms, but the ones held by the Commission to have been the agreed terms, are working exclusively for Humes and for a two year duration beginning from 21 June, 2010. 90In summary of all of the foregoing, the Commission has found that there was no valid reason for the termination of the second contract of engagement as a contract carrier. The Commission prefers the evidence of John Power to that of Mr McFarlane as to the content of their telephone conversation of 9 August, 2010. The Commission then made the consequent finding that the termination of that contract of carriage was harsh. 91The Commission has also accepted the evidence of John Power, over that of Gareth Lewis, as to the content of their discussions going to what terms constituted the re-engagement of John Power for his second contract with the respondent: working exclusively for Humes and for a two year period. 92The Commission grants the application for the reinstatement of the contract of carriage of John Power Pty Ltd on the same terms that would have been applicable if the contract of carriage had not been terminated on 9 August, 2010. That is, the order entails the engagement of John Power Pty Ltd carrying out work exclusively for Humes and for the remainder of the two year period of the contract for which he was engaged. The Commission will also make an order that John Power Pty Ltd be compensated for loss of remuneration during the period between the period of the termination of the contract of carriage and the reinstatement of the contract of carriage - less any remuneration received by John Power Pty Ltd during that period of time. The parties are to confer and assess the quantum of loss of remuneration (if any) during that period of time and advise the Commission which can then issue a specific order as to quantum of lost remuneration.

VICTIMISATION 93As to the victimisation application, the respondent has raised a jurisdictional issue being that the victimisation application was lodged out of time. Accordingly, the Commission will deal with that issue first up.

Out Of Time 94John Powers contract of carriage was ended on 9 August 2010. The 21 day period in which to file an unfair dismissal application and in this case, a victimisation application, expired on 31 August 2010. The union filed the unfair dismissal application on 20 August 2010. The victimisation application was filed on 13 September 2010 and as such, was filed 13 days late. 95The discretion to extend time in victimisation matters, is established by section 213 (4) of the Act . There are various discrete factors contained in paragraphs (a), (b) and (c) of section 213 (4), which the Commission is to have regard in order to determine whether sufficient reason exists to accept an application made out of time. 96The various factors contained in paragraphs (a), (b) and (c) of section 213 (4), represent the primary issues for consideration, but do not limit the consideration of the Commission. Various supplementary factors may also be included, depending upon the specific circumstances of each case. It is convenient to approach the consideration in this instance, by reference to the various factors that can be identified in section 213 (4).

Length of Delay: s 213 (4)(a) 97The victimisation application was filed on 13 September 2010 and as such, was filed 13 days late.

Reason(s) for delay: s 213 (4)(a) 98The reason for the delay is contained in the witness statement of Therese Walton (Exhibit 3). The reason goes to the internal workings of the union when dealing with the unfair dismissal application and the initial dispute notification. These applications came before the Commission but the union was unsuccessful in settling the applications by conciliation. The union then prepared the unfair dismissal application for a hearing. Arising out of that process, and through internal deliberations, it was decided to file a victimisation application. It was this internal deliberation process that was the reason for the delay.

Hardship: s 213 (4)(b) 99Section 213 (4) (b) refers to the hardship that may be caused to John Power Pty Ltd or the respondent, if the victimisation application is or is not rejected, respectively. 100The union submitted that there would be hardship to John Power Pty Ltd if the unfair dismissal application and the victimisation application were rejected. If the unfair dismissal application was rejected, then John Power Pty Ltd only had recourse to the victimisation application to redress his current financial position arising out of the termination of his contract of carriage by the respondent. 101The union submitted that the respondent would not suffer hardship, if the victimisation application was to proceed, given that the respondent was already on notice that John Power Pty Ltd had challenged the termination of his contract of carriage, within the 21 day time limit, by the filing of the unfair dismissal application and the initial dispute notification.

Conduct of the Employer: s 213 (4)(c) 102There was no evidence provided of their being conduct by the respondent, as a cause for the delay in the lodgement of the victimisation application.

Prospects of Success 103Section 213 (4) of the Act , does not set out an exhaustive list of factors to be considered by the Commission for an out of time application. Other factors to be considered include "an applicant's ignorance of the relevant time limit, whether an applicant has an arguable case, an applicant's prospects of success.": Hurrell and Queensland Cotton Corporation Ltd (2002) 125 IR 145 at 150. 104There was no evidence that the applicant had knowledge about his legal right to file a victimisation application and hence his ignorance was not raised as an issue for my consideration. The thrust of the union's case of behalf of John Power Pty Ltd is that his contract of carriage was brought to an end on 10 August 2010, when a manager for the respondent telephoned John Power and questioned him about his attending a meeting at the Humes site and whether the union was involved in that meeting of 10 August 2010. Evidence from several witnesses has been provided to the Commission concerning the union's case against the respondent on that issue. It seems to the Commission that the union's case is not without merit.

Conclusion re Out of Time 105The Commission has before it a victimisation claim, but which has been filed out of time. 106The respondent put on written submissions, by covering letter dated 8 December 2010, in respect of the out of time issue and the "double dipping" issue. As to the out of time issue, the respondent advised that it did not consent to or oppose the acceptance of the out of time victimisation claim. 107The Commission's consideration of the out of time application is not restricted to just those certain factors listed in section 213 (4) of the Act: Hurrell's Case . 108The onus is on the union to prove that " sufficient reason " exists to accept the out of time application. 109Having considered all of the evidence, the Commission finds that the union has established that "sufficient reason" exists to accept the out of time application. The reason for the delay was due to the internal deliberations of the union and was not the fault of John Power. There is no hardship to the respondent in accepting the out of time victimisation claim given that the respondent was already on notice that John Power Pty Ltd was challenging the termination of his contract of carriage by the filing of the unfair dismissal application and the initial dispute notification. In terms of prospects of success, the union's case on behalf of John Power Pty Ltd, is not without merit. Accordingly, the Commission accepts the out of time application.

Grounds for Victimisation 110The union claimed victimisation on two grounds: section 210 (1) (a) and 210 (1) (f) of the Act. 111Section 210 (1) (a) states that: An employer or industrial organisation must not victimise an employee or prospective employee because the person is or was a member or an official of an industrial organisation of employees or otherwise elected representatives of employees. In this case, the employer is a principal contractor. 112John Power is and was a member of the union and the union submitted that the evidence established that the respondent was either aware, or suspected, that John Power was a member of the union. The union said that the termination of the contract of carriage of John Power Pty Ltd was hence due to John Power being a member of the union. 113The respondent denied the union's claim. 114Having considered the evidence, the Commission forms the view that the union has not established that the respondent was aware or even suspected that John Power was a member of the union. 115It was Mr MacFarlane who terminated the contract of carriage of John Power Pty Ltd. Under cross examination, he said that he had no idea that John Power was a union member (Tr 19/11/10- p17 line 6-10). The union brought no evidence to show otherwise. John Power deposed that he became a member of the union in or around late July 2010 (Exhibit 1, paras 13-17). Given that John Power was only a member of the union for about two weeks prior to his contract of carriage being terminated, then in the absence of evidence to the contrary, it is unlikely that Mr MacFarlane would know of John Power's union membership. 116The other ground for claiming victimisation, is section 210 (1) (f) which states: An employer or industrial organisation must not victimise an employee or prospective employee because the person informs any person of an alleged breach by an employer of the industrial relations legislation or of an industrial instrument. In this case, the employer is a principal contractor. 117The union said that John Power and the other three contract drivers had had discussions amongst themselves as to whether they were being paid the correct rates under the Transport Industry-(General Carriers) Contract Determination (the Determination). This led to the drivers calling in the union for a discussion about their correct rates under the Determination which is an industrial instrument. The union submitted that the respondent was aware that John Power and the other three contract carriers were meeting with each other and either knew or suspected that they were discussing the alleged breach (correct rates) of an industrial instrument. Further, the union said that the evidence established that the respondent was either aware or suspected that the drivers were meeting with officials of the union to discuss the alleged breaches of the industrial instrument. Thus the union deposed that the respondent had victimised John Power because he had informed a person (at least one other contract carrier or the union) of an alleged breach by the principal contractor (the respondent) of an industrial instrument. 118The respondent denied the union's claim. 119Having considered the evidence, the Commission forms the view that the union has not made out a case that the respondent victimised John Power pursuant to section 210 (1) (f). 120As to Mr McFarlane's knowledge of the union meeting of Friday, 6 August, he said he had been advised in a telephone conversation on Monday 10 August, by a person called Shane from Humes, that the respondent's contractors had had a union meeting on Humes' site on Friday 6 August. He deposed he had no prior knowledge about that union meeting (exhibit 11, paragraph 17). 121Mr McFarlane then contacted by telephone, Graham Harris, the sole director and shareholder of the respondent. Mr McFarlane deposed that he and Mr Harris agreed that the best way forward was to contact each of the contractors to find out their concerns and gain details on the meeting so that they could respond to Shane. 122Mr McFarlane then telephoned John Power. These two persons give conflicting accounts of that telephone conversation. The Commission has already dealt with that issue and held that it preferred the account of the conversation given by John Power. The Commission then turned to John Power's version to assess whether it supported the union's claim of victimisation. 123John Power's version (Exhibit 1, paragraph 20) does not support a claim of victimisation. That version has Mr McFarlane asking questions but John Power declines to answer. One relevant question going to the victimisation consideration is: "Was the union present?", but John Power declined to answer. Had he done so, the answer in any event would have been in the negative. Because John Power declined to answer the questions, then the conversation was very short. The last response by Mr McFarlane was, "Well in that case I'm pulling you out of Humes and you're no longer working for us". What then was meant by, "Well in that case..."? These words reflect a reason by McFarlane. The reason may well have been John Power's refusal to answer the questions and Mr McFarlane's frustration with that type of response by John Power. The Commission can not see how this reasoning or any other part of the conversation by Mr McFarlane constitutes victimisation. 124Accordingly, the Commission finds that the ground of victimisation has not been made out by the union.

"Double Dipping" 125Given the Commission's finding that the respondent did not engage in the two prescribed grounds of victimisation as alleged by the union, then it is not necessary for the Commission to make a finding about any remedy or remedies that might otherwise have arisen for consideration. Be that as it may, the Commission will offer an opinion on its reading of section 213(2)(c) which is in the following terms: "The Commission may, in particular, for that purpose do any one or more of the following: (c) order the employer to pay an employee or prospective employee the whole or any part of the amount of remuneration or other financial benefits lost or foregone". 126The Commission invited the parties to comment on the above order that may be made by the Commission, as it was an order being considered by the Commission as part of its deliberation on the victimisation claim by the union. In particular, the Commission highlighted to the parties the words, "lost or foregone". It seemed to the Commission that the term, "foregone", refers to future remuneration or other financial benefits, given the context. The relevance to the John Power case was that if victimisation was found, might an order for foregone remuneration (as opposed to lost remuneration) be made? The Commission was alerted to this question during final submissions because John Power alleged he had been engaged for his second contract with the promise of a two year contract which had been brought to an end by the respondent. 127Ms Brus, barrister for the respondent, submitted in writing that the term "foregone" did not enable an order to be made for prospective compensation such as income that may have been derived from a purported two year contract. Ms Brus also submitted that her interpretation is also consistent with the view adopted in Brown v Rezitis (1970) 127 CLR 157 at 167 wherein it was noted that orders regarding the variation of a contract or arrangement were to "effect wholly or partially the restitution of the parties to their former position". 128Reference was also made to the Macquarie definition of "foregone". This definition gives a past tense as opposed to a future tense (prospective tense/prospective compensation) definition. Thus a past tense definition of "foregone" is contrary to an argument that "foregone" allowed for an interpretation of awarding prospective compensation such as income that may have been derived from a two year contract. 129Finally, Ms Brus' written submission said it was important to note the use of the word "or" rather than the conjunctive "and" in the legislation. The Commission notes that no explanation went with this part of the submission as to its importance. The word "or" appears three times in section 213(2)(c). 130The Commission, with respect, does not concur with the respondent's view of section 213(2)(c). 131If the past tense submission as to "foregone" is accepted, then why does the other term "lost" appear? The term "lost" has a past tense meaning and to accept that "foregone" also has a past tense meaning, results in two terms having the same meaning. Accordingly, by the respondent's reasoning, one of those terms is redundant. But that can not have been the legislature's intention. The two terms were intended by the legislature to have work to do. The term "lost" is clearly past tense and "foregone", given its context, refers to future remuneration or other benefits. 132The respondent's submission is also rejected (as to not being able to claim prospective remuneration or other benefits) given another analysis of the section in question. 133Section 213(2)(c) deals with two categories of applicants who can utilise that section: (a) dismissed employee and (b) prospective employee. Consider the prospective employee part of s213(2)(c) and prospective remuneration or other benefits. Assume that it is found that a prospective employee had been denied employment on the ground of victimisation. What monetary order could be made in favour of the prospective employee? No order could be made for "lost" remuneration or financial benefits because the prospective employee had not been engaged - let alone was working on the job. The only order that could be made is "foregone" remuneration or financial benefits - that is, an order for future remuneration or future financial benefits for not being engaged due to the victimisation. If an order for future remuneration or financial benefits could not be made by the Commission, then any employer could victimise prospective employees without fear. 134If a prospective employee, on the above analysis, can be given an order for "foregone" remuneration or financial benefits, then it would make no sense that a dismissed employee could not be awarded an order for "foregone" remuneration or financial benefits - otherwise a prospective employee would have a benefit that the dismissed employee did not. 135For the above reasoning, the Commission takes the view that the term "foregone" has legislative work to do and its meaning, given the context, goes to future remuneration or financial benefits foregone. Had the Commission found that the respondent had victimised John Power Pty Ltd then an order for foregone remuneration or financial benefits for the balance of his two year contract of engagement was an order open to be made by the Commission. ORDERS The Commission hereby makes the following Determination in respect of the application for a contract determination of reinstatement (IRC 859 of 2010) pursuant to section 314 of the Industrial Relations Act 1996:

The contract of carriage between John Power Pty Ltd and Forum Transport Pty Ltd, that terminated on 9 August, 2010, is reinstated.
This Determination reinstates the contract of carriage on terms no less favourable than those that would have been applicable if the contract of carriage had not terminated on 9 August, 2010 and which terms included working exclusively for Humes and being for a two year period of duration, beginning from 21 June, 2010.
Forum Transport Pty Ltd is to remunerate John Power Pty Ltd, the sum of money he would have earned (less any remuneration gained by John Power Pty Ltd) but for the carriage contract being terminated, being for the period between the termination of the carriage contract and the date of the operation of the reinstatement of the carriage contract of John Power Pty Ltd. The parties are ordered to confer on this particular order and report back to the Commission on Friday 8 April at 9.15am as to the quantum of money (if any) that satisfies this order.
These orders shall take effect on and from 8 April, 2011. A Macdonald Commissioner

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: 25 March 2011

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