Transport Workers Union of New South Wales v Jet Couriers

Industrial Relations Commission (NSW)|2008-10-01

CITATION: Transport Workers Union of New South Wales v Jet Couriers (Sydney) Pty Ltd [2008] NSWIRComm 1052

APPLICANT Transport Workers Union of New South Wales PARTIES: RESPONDENT Jet Couriers (Sydney) Pty Ltd

CATCHWORDS: Dispute Notification - section 332 of the Industrial Relations Act, 1996 - dispute concerns alleged underpayments for a contract carrier who performed courier and taxi truck work for Jet Couriers (Sydney) Pty Ltd (the Principal Contractor) - conciliation unsuccessful - Hearing - HELD: (A) Union's claim that carrier engaged only on Exclusive Hire per relevant Contract Determination made out - Principal Contractor's argument that a probationary concept applied to carriers engaged on Exclusive Hire rejected - principles of award interpretation applied - appropriate order for underpayment claim made; (B) Union's claim that carrier made redundant by principal contractor not made out - Union carried onus to prove redundancy claim - reasonable inference available that carrier's service was terminated due to his conduct towards another person.

LEGISLATION CITED: Industrial Relations Act 1996

CASES CITED: R v The Industrial Commission of South Australia; Ex Parte Adelaide Milk Supply Co-operative Ltd (1997) 16 SASR 6 Kingmill Australia Pty Ltd t/as Thrifty Car Rental v Federated Clerks' Union of Australia, New South Wales Branch (2001) 106 IR 217

Transport Workers Union of New South Wales Mr O Fagir LEGAL REPRESENTATIVES: RESPONDENT Jet Couriers (Sydney) Pty Ltd Mr B Ralph

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Notification under section 332 by the Transport Workers Union of New South Wales, of a dispute with Jet Couriers (Sydney) Pty Ltd re alleged underpayment of wages

1 The Transport Workers Union of New South Wales ("the Union") lodged a dispute notification against Jet Couriers (Sydney) Pty Ltd ("the Respondent" and also known as "the Principal Contractor"), pursuant to section 332 of the Industrial Relations Act 1996 ("the Act"). 2 The dispute notification alleged that the Respondent had underpaid a certain owner driver/carrier (a member of the Union) and who performed carrier work for the Respondent. The underpayments were said to arise from the operation of the Transport Industry - Courier And Taxi Truck Contract Determination ("the Determination"). 3 The dispute was listed for a compulsory conference on 13 February 2008 and a report back on 29 February. Failing settlement of the matter, it was programmed for a Hearing. 4 The Hearing took place on 3 June. 5 At the Hearing, the Union was represented by Mr O Fagir, union official. Mr Fagir called as a witness, the owner-driver who claimed that he had been underpaid certain entitlements: Mr Anthony Phillips. 6 The Respondent did not file any witness statement(s). The Respondent was represented by Mr Brett Ralph, managing director.

BACKGROUND 7 Mr Phillips was engaged as a contract carrier by the Respondent between 5 March 2007 and 11 April 2008. He operated a one tonne utility vehicle. 8 Schedule A of the dispute notification set out the history of the claim of underpayments by Mr Phillips against the Respondent. Thus, he initially raised a query about non payment of superannuation entitlements. This, in turn, led to his view that he was not being paid the correct amount of pay per the Determination. 9 Mr Phillips claimed that the correct rate of pay was that owed to him under the Exclusive Hire Rate, ($25.17 per hour) plus an additional $1.01 Fuel Levy. 10 Allegedly the Respondent retorted that the Exclusive Hire Rate was too expensive and Mr Phillips was then placed on ad hoc work.

This ad hoc work arrangement lasted ten days. The Respondent then apparently agreed to pay Mr Phillips an amount of back pay in respect of monies owed. 11 However, Schedule A set out the Respondent's position that Mr Phillips was not entitled to be paid the Exclusive Hire Rate under the Determination, but was only entitled to the Probationary Rate for carriers. 12 Despite the payment of monies to Mr Phillips, that payment did not satisfy Mr Phillips calculations as to monies owed under the Determination. 13 Subsequently, he claimed he was advised by the Respondent that his services as a carrier were no longer required. In his filed witness statement, he stated that he had not been paid any termination or redundancy entitlements.

For the Union 14 Mr Fagir, for the Union, put the following in final submissions:

(a) Mr Phillips carried out carrier work for the Respondent.

(b) The Determination set out two schemes of remuneration for carriers: Clause 12. Remuneration and Clause 15. Exclusive Hire.

(c) Clause 12 is structured around an initial probationary rate and thence a safety net rate for carriers. This Clause 12, it was submitted, did not apply to Mr Phillips.

(d) Instead, it was submitted, the Respondent had engaged Mr Phillips on an Exclusive Hire (a higher hourly rate) basis. The evidence in support of the Exclusive Hire rate to be paid to Mr Phillips, was that he performed work for one client of the Respondent. That one client was Linfox Australia Pty Limited and the actual work performed was delivery of a product (Dulux paint products).

Accordingly, the Respondent erred in remunerating Mr Phillips at the probationary rate for the first ten weeks of his service with the Respondent and should have paid him at the Exclusive Rate for that period. The underpayment involved an approximated $225.

(e) The work performed by Mr Phillips fell within the definition of "Exclusive Hire", contained in Clause 1. Definitions.

(f) Mr Phillips was also entitled to a redundancy payment of five weeks. This was due to Linfox Australia Pty Limited no longer providing work for Mr Phillips who in turn was advised by the Respondent that no work was available to Mr Phillips.

For the Respondent 15 Mr Brett Ralph put the following in final submissions:

(a) The Determination has a provision for the payment of a probationary rate to a carrier. This was the rate applicable to Mr Phillips for the first six weeks of his engagement as a carrier.

(b) The Union's argument that the probationary rate had no application to carriers engaged on Exclusive Hire, was rejected by Mr Ralph.

(c) Mr Ralph referred to Clause 12.2.5 which advised of the application and non-application of the probationary rate. It did not apply to a contract carrier who provided a vehicle of greater than 3 tonnes carrying capacity. Mr Phillips' vehicle only had a one tonne carrying capacity and therefore, the probationary rate applied to Mr Phillips for the first six weeks of his engagement.

(d) The claim for redundancy payments was rejected. Mr Phillips, it was submitted, had his contract terminated for gross misconduct arising from his use of abusive language to a client.

Union in Reply 16 Mr Fagir in reply put the following:

(a) There was no evidence that Mr Phillips had been dismissed for gross misconduct. Further, that claim by Mr Ralph was not put by him to Mr Phillips in cross-examination.

(b) As to the probationary rate issue, it had no application to those carriers engaged on Exclusive Hire.

17 The Commission has two issues before it for consideration:

UNDERPAYMENT CLAIM 18 Mr Phillips is pursuing an underpayment claim. He claims that he was underpaid for the first six weeks of his engagement as a contract carrier. He says that he was paid a probationary rate of pay for that six week period and that he should not have been so remunerated. Instead, he asserts he should have been paid the Exclusive Hire rate, for that first six week period. 19 Mr Brett Ralph put forward two arguments to counter this underpayment claim. 20 Firstly, he said that the Exclusive Hire rate did not apply to Mr Phillips' carrier work circumstances. Rather, the rate payable to Mr Phillips carrier work was that contained in Clause 12. Remuneration of the Determination. Herein, was set out he said, the rate for ad hoc carrier work. The initial rate was a probationary rate for the first six weeks and then a safety net rate applied thereafter.

The Commission notes that the probationary rate is a lesser rate than the safety net rate which is a rate lesser than the Exclusive Hire rate. 21 Secondly, and in the alternate, if the Commission found that the Exclusive Hire rate applied to Mr Phillips' carrier work circumstances, then it was submitted that the probationary period concept also applied to any carrier (let alone Mr Phillips) engaged on Exclusive Hire. 22 Mr Fagir for the Union rejected those arguments put by Mr Ralph. He said that the Exclusive Hire rate applied to Mr Phillips because he was engaged on exclusive hire - that is, engaged by one client only. Further, Clause 15. Exclusive Hire, made no reference to the concept of probationary period, and therefore that concept had no application to carriers (let alone Mr Phillips) engaged on Exclusive Hire. 23 In considering the competing submissions by the parties about the application of Clause 12 - Remuneration and Clause 15 - Exclusive Hire, it will be necessary for the Commission to consider the principles to be applied for award interpretation. 24 The Commission sets out below the relevant extract on the approach to award interpretation taken by a Full Bench of this Commission in Kingmill Australia Pty Ltd t/as Thrifty Car Rental v Federated Clerks' Union of Australia, New South Wales Branch (2001) 106 IR 217 at 228 to 230. "[63] The interpretation of awards are, in our view, to be approached in accordance with the principles authoritatively stated by the Full Bench of the Commission in Court Session in Bryce. Hungerford and Schmidt JJ stated there (at 452): "In our view, in construing the true meaning of an industrial award, like any other instrument with legal force, the task requires an approach according to the actual words used and their plain, ordinary English meaning. As was said by Kelleher J in Re Dispute between Broken Hill Pty Co Ltd and the Federated Ship Painters and Dockers' Union of Australia, New South Wales Branch, Re Tank Tops [1961] AR (NSW) 312 at 314: The meaning is to be ascertained primarily from a consideration of the words actually used and, while it is proper to pay regard to the surrounding circumstances and the purposes for which the provision was intended, this cannot justify a meaning being given to the words which they are not fairly capable of bearing. Particular words or expressions, having a special trade significance, however, may need to be construed in that light." [64] Their Honours approved the approach adopted by Olney J in Norwest Beef Industries Ltd v Australasian Meat Industries Employees Union of Workers (WA Branch) (1984) 12 IR 314 at 331 as follows: "If it be the case that the correct approach to the interpretation of an industrial award is to read the document itself and give to the words used their ordinary commonsense English meaning (see Jackson J in United Furniture Trades Industrial Union v Dale Manufacturing Co Pty Ltd, 30 WAIG 539, at 540) then the first task in every case will be to determine whether the words used are capable in their ordinary sense of having an unambiguous meaning. If that question is answered in the affirmative then the further consideration of the expressed or supposed intention of the award making tribunal does not fall to be considered. The majority of the Full Bench in this case took that view when they said: It is now trite law that when the meaning of language read in its ordinary and natural sense is obtained it is not necessary or indeed permissible to look to the intention of the parties. In my opinion the majority of the Full Bench has correctly stated the basic principle to be applied in the interpretation of industrial awards. Any other conclusion would lead to industrial anarchy. If the contrary were the case every employer, union official and indeed each employee would need to have available to him the expressed views of the award making tribunal whether they be expressed before or after the making of the award in order to determine the intention of the tribunal whilst the award itself would be rendered meaningless."

[65] The principles stated in Bryce have been applied on a number of occasions by this Commission: see, for example, Kellogg (Aust) Pty Ltd v National Union of Workers, NSW Branch (1998) 89 IR 391 at 392-395; Re Hospital Employees Conditions of Employment (State) Award (1999) 96 IR 245 at 255-256 per Wright J, President and Schmidt J; ALHMWU v Manilla RSL & Ex-Servicemens' Club Ltd [2000] NSWIRComm 122 at [40]-[42] per Boland J; Australian Workers' Union, NSW v NSW Technical and Further Education [2001] NSWIRComm 25 at pars 15, 17-19 per Schmidt J. [66] We consider that Hungerford J was correct in observing, in Kellogg (at 395), that the passages cited by the majority in Bryce represented a "long-standing and settled approach" to the task of award interpretation. [67] The application of those principles, we think, should occur in conformity with general approaches to the construction of enactments and other instruments. In this respect, we note, with approval, the observations of Walton J, Vice-President, in Perisher Blue v Australian Workers' Union (1999) 91 IR 274 at 283-284: "Speaking generally, awards should be interpreted in a similar fashion to other enactments: Geo A Bond & Co Ltd (in liq) v McKenzie [1929] 28 AR (NSW) 498 at 503; Short v F W Hercus Pty Ltd (1993) 40 FCR 511 at 520. In the construction of the general order, and in conformity with general principles of award interpretation, the Commission should consider the wider context of the making of those provisions. Burchett J in Short v F W Hercus describes this approach to the interpretation of an award as follows: The context of an expression may thus be much more than the words that are its immediate neighbours. Context may extend to the entire document of which it is part, or to other documents with which there is an association. Context may also include, in other cases, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted, it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its former significance, standing bare in alien ground. True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used. Very frequently, perhaps most often, the immediate context is the clearest guide, but the court should not deny itself all other guidance in those cases where it can be seen that more is needed. In literature, Milton and Joyce could not be read in ignorance of the source of their language, nor should a legal document, including an award, be so read. (at 518). (See also Western Newspapers Pty Ltd v Warren (1994) 56 IR 340 at 351). I note that a similar approach was adopted by the former Industrial Commission in Re Butter, Cheese and Bacon Factories and Milk and Cream Condensories &c (State) and Butter Cheese and Bacon Factories and Milk and Cream Condensories, &c (Newcastle and Northern) Awards [1950] 49 AR (NSW) 62 at 64 where it was held that the meaning of words within an award (which are not expressed or precise) may be ascertained by 'placing upon the words their ordinary meaning as applied to the subject matter with respect to which they are used'." [68] The authorities set out in Bryce considered the circumstances in which it may be appropriate to apply the award-maker's intentions to the circumstances in which the award was made and to the practical effects of a particular construction. The decision in Perisher Blue indicated the desirability of considering the terms of an award in the context in which they appeared and emerged. Those principles apply with equal force to the circumstances in which it may be appropriate to have regard to other aids of construction such as the "major and substantial" or "principal purpose" tests. [69] Those principles apply to a clause which establishes the coverage of an award in the same way as they do to other clauses in the award. It is thus appropriate to consider the scope clause of the award in the context in which it appears and, in particular, by reference to the other provisions of the award. [70] It should be noted that the application of aids to construction, such as the "major and substantial" or "principal purpose" tests, should be approached with caution. The automatic adoption of such an approach may, depending on the terms of the award, have the potential for awards to be interpreted inconsistently with their plain words and, therefore, unnecessarily restrictively. This potential may be greatest when the scope of the award's coverage clause is expressed in broad and inclusive terms." 25 The foregoing relevant extract on the approach to be taken to award interpretation, establishes that the first step is to consider the plain, ordinary meaning of the words in question. 26 The Commission has analysed the relevant clauses contained in the Determination and concluded that the issues before the Commission for resolution, can be resolved by adopting the plain, ordinary meaning approach for understanding the relevant clauses.

In so applying that approach, the Commission finds firstly, that Mr Phillips' carrier work was of a kind that was to be remunerated on the Exclusive Hire rate; and secondly, the concept of a probationary rate does not apply to carriers (including Mr Phillips) who are engaged on Exclusive Hire. The Commission sets out its reasoning below. 27 Firstly, the Commission will deal with its finding that Mr Phillip's carrier work was to be remunerated at the Exclusive Hire rate. 28 The undisputed evidence given by Mr Phillips was that he is an owner driver who was engaged by the Respondent (the principal contractor) to perform work for one client only. That client was initially Westgate Transport which was bought out by Linfox Australia Pty Ltd. (Ex - paras 1 to 5). 29 The significance of his evidence that he performed work for one client only, goes to finding that the Exclusive Hire clause applied to him. Thus, Clause 1. Definitions, defines "Exclusive Hire" as follows: " Exclusive Hire " means contracts of carriage which on any day are performed by a contract carrier only on bank runs (as defined) or for only one client of a principal contractor which preclude performance of any contracts of carriage by that contract carrier for other clients of the principal contractor on that day. For this purpose a client of the principal contractor shall not include another principal contractor or a related company or enterprise of the principal contractor." (emphasis added)

The Commission has emphasised that part of the foregoing definition which was applicable to the type of carrier work performed by Mr Phillips. 30 Mr Ralph submitted that Clause 12. Remuneration covered the type of work performed by Mr Phillips. He submitted that this clause went to "ad hoc" work.

The Commission rejects that submission. 31 Firstly, the clause does not use the term "ad hoc", to describe the type of work that would be carried out by any carrier paid under the rate set out in this clause. In final submissions, both the Union and the Respondent agreed that this clause referred to "ad hoc" work, but the clause does not use that term. 32 Secondly, the term "ad hoc" is not defined in the Determination and so no evaluation of that term can be made against the evidence of Mr Phillips as to the type of work performed by him and/or its frequency. 33 Thirdly, when Mr Phillips was being cross-examined, it was not put to him by Mr Ralph, that his carrier work was one covered by the operation of Clause 12. Remuneration.

(Again, for the record, the Commission notes that the rate for a probationary carrier is less than the safety net rate paid to a carrier paid under Clause 12. Remuneration which, in turn, is a rate lesser than Clause 15. Exclusive Hire). 34 Accordingly, the Commission rejects the Respondent's submission that Mr Phillips' work was of an "ad hoc" nature. 35 Mr Ralph also submitted directly or by inference, that Clause 12. Remuneration applied to Mr Phillips because of the tonnage of his vehicle, which is one tonne. 36 Mr Ralph referred to Clause 12.2.5. whose subject matter is the concept of "probationary period". This sub-clause has an exemption provision to the effect that the probationary rate of pay does not apply to "a vehicle of greater than 3 tonnes carrying capacity".

Hence, Mr Ralph made a direct or inferred submission that, as Mr Phillips operated a one tonne vehicle, then his work came under Clause 12. Remuneration - and a lesser rate of pay. 37 The Commission rejects this submission. The exemption provision concerns the subject matter, "probationary period" as to the non-operation of that concept. The exemption provision is not a criterion for determining whether carriers are to be categorised and remunerated under Clause 12. Remuneration or Clause 15. Exclusive Hire. 38 In conclusion, the Commission has determined that Clause 15. Exclusive Hire, coupled with Clause 1. Definitions, makes it clear that the carrier work performed by Mr Phillips, is of a type covered by Clause 15. Exclusive Hire.

Accordingly, he was to be remunerated at the Exclusive Hire rate of pay. 39 Given that finding, the Commission now turns to the alternate argument of the Respondent, that if Mr Phillips' work was to be held to be paid at the Exclusive Hire rate, then he was to be paid at a probationary rate for the first six weeks of his engagement. The Union argued that the probationary period concept had no application to carriers engaged on Exclusive Hire. 40 The Commission rejects the Respondent's submission for the reasons set out below - based on the principles of award interpretation. That is, the Commission finds that the language of the Determination is clear on its face that the probationary period concept does not apply to carriers on Exclusive Hire. 41 Firstly, there is no reference to a probationary rate of pay in Clause 15. Exclusive Hire. 42 Secondly, the reference to a probationary rate is contained in Clause 12. Remuneration. A reading of that clause shows that a probationary rate applies for the first six weeks of service with a principal contractor. Thereafter, a safety net (a higher rate) applies. The probationary rate does not apply where a carrier provides a vehicle of greater than 3 tonnes carrying capacity. 43 However, the probationary period concept is restricted to those carriers engaged under "this Clause".

The Commission has already determined that Clause 15. Exclusive Hire applies to Mr Phillips and accordingly he has not been engaged under Clause 12 and therefore " this Clause" (and its reference to probationary period) does not apply to him.

The Commission sets out the relevant sub-clause with its reference to " this Clause " below: "12.2.5 When a contract carrier is first engaged with a principal contractor the safety net payable in accordance with this Clause shall, during the first 6 weeks of service with that principal contractor, be limited to a maximum of 7 hours on any day at the probationary rates set out in Schedule II. This sub-clause does not preclude a new contract carrier working more than 7 hours on any day. Provided that this probationary provision shall have no application to a contract carrier providing a vehicle of greater than 3 tonnes carrying capacity." (emphasis added) 44 Thirdly, other parts of the Determination show that the probationary period concept does not apply to carriers engaged on Exclusive Hire: see Schedule II and Clause 10. Remuneration Records. 45 Schedule II to the Determination sets out the hourly rates for certain classes of vehicles. Schedule II is headed up as follows: Probationary Contract Carriers - Safety Net - Clause 12(2)(b)(v). There is no reference to Clause 15. Exclusive Hire. 46 Clause 10. Remuneration Records, sets out the remuneration records to be maintained by the principal contractor.

Sub-clause 10.4 refers to the Safety Net/Probationary period concept but only with respect to Clause 12. Remuneration. There is no reference to Clause 15. Exclusive Hire.

Sub-clause 10.4(d) requires the principal contractor to furnish information about the time spent by a carrier on Exclusive Hire and makes no reference to probationary hours. 47 For the foregoing reasons, the Commission finds that the probationary period concept has no application to carriers engaged on Exclusive Hire.

REDUNDANCY PAYMENT CLAIM 48 The Union has made a claim for redundancy payment on the basis that Mr Phillips was retrenched by the Respondent.

Mr Brett Ralph, managing director, said in final submissions that Mr Phillips had not been retrenched. 49 The onus is on the Union to prove that Mr Phillips had been retrenched. 50 The Commission needs to be satisfied, on the balance of probabilities, that the Respondent had retrenched Mr Phillips. 51 The starting point for consideration of the Union's claim, is the meaning of the concept of redundancy. In that regard, the Commission relies upon the following statement by Bray CJ in R v The Industrial Commission of South Australia; Ex Parte Adelaide Milk Supply Co-operative Ltd (1977) 16SASR 6 at 8: "I should begin by saying that I agree with Bright J that the concept of redundancy in the context we are discussing seems to be simply this, that a job becomes redundant when the employer no longer desires to have it performed by anyone. A dismissal for redundancy seems to be a dismissal, not on account of any personal act or default of the employee dismissed or any consideration peculiar to him, but because the employer no longer wishes the job the employee has been doing to be done by anyone." 52 Relevantly, for the purpose of onus, the foregoing extract makes the point "that a job becomes redundant when the employer no longer desires to have it performed by anyone."

The Commission finds that the Union has not satisfied its onus to show that the Respondent had advised that it no longer wanted the job performed by Mr Phillips, to be performed any further.

The Union brought no evidence to show that Mr Phillips' job (a carrier job of transporting Dulux paints) was no longer being performed. 53 The Union sought to rely on a conversation between Mr Phillips and Mr Shaun Ralph, operations manager, as establishing a basis for redundancy. This conversation is reported by Mr Phillips in his statement. (Ex 1, paras 23 to 25). The conversation (given in the third person), does not, per se, show that Mr Shaun Ralph had advised Mr Phillips that he had been retrenched. 54 Mr Phillips was cross-examined on his conversation with Mr Shaun Ralph. That cross-examination (Tr 03/06/08 - pp18 to 22) elicited the following: (a) Shaun Ralph telephoned Mr Phillips on the night of 10 April, 2008 and advised Mr Phillips not to front for work at Dulux Paints the next day, because Dulux Paints did not want him on site. Dulux Paints did not provide a reason. (b) Shaun Ralph contacted Mr Phillips on 11 April and asked him to attend the office of the principal contractor. (c) At that office meeting, Mr Phillips was advised that Linfox Australia Pty Limited no longer required the services of Mr Phillips because of something he said to a job allocator called Sue. (d) As to his conversation with Sue, he stated he had asked her as to who had allocated him certain work. Sue responded that Mario had done so. Mr Phillips advised that his response to Sue's answer was, "Fucking bullshit." 55 The foregoing transcript extract was relied upon in Mr Brett Ralph's submission, to infer that the services of Mr Phillips were dispensed with by Mr Shaun Ralph, because of the conduct of Mr Phillips towards Sue and the subsequent complaint by Linfox Australia Pty Limited to the principal contractor.

The Commission finds that that is a reasonable inference to draw. The Commission then refers to the passage of Bray CJ, in which his honour held that a dismissal was not a redundancy, where the dismissal was an account of a personal act or default by the employee. In this case, the conduct towards Sue can reasonably be inferred as the cause of the termination of Mr Phillips' carrier work.

Accordingly, the Commission finds that the Union has not made out its case that Mr Phillips was retrenched.

CONCLUSION 56 The Commission has considered two claims brought by the Union on behalf of its member, Mr Phillips. 57 As to the Underpayment Claim, the Commission has found that Mr Phillips was engaged under Clause 15. Exclusive Hire of the Contract Determination - and not engaged under Clause 12 - Remuneration. Further, the concept of Probation did not apply to a carrier engaged under Clause 15. Exclusive Hire, but did apply if engaged under Clause 12 - Remuneration. The Commission has set out below the appropriate Orders in favour of Mr Phillips as to his Underpayment Claim.

The Orders made by the Commission comprise $474.60 (the underpayment amount for ten weeks), plus $47.46 (being GST amount) plus interest on $474.60 calculated at 9% per annum.

The parties were in agreement that the sum of $474.60 was the amount of the underpayment owed to Mr Phillips, if the Commission held that the probationary concept did not apply to his engagement on Exclusive Hire. The $474.60 derives from multiplying 210 hours of work over the initial ten week period by an hourly shortfall rate of $2.26.

Interest has been ordered by the Commission, pursuant to s372 of the Act , and is for the initial ten week period and this period of time reflects that claimed by Mr Phillips in his witness statement. (Ex1 - Annex TP2). 58 As to the claim for Redundancy Pay by the Union, the Commission found that the Union has not made out its onus to show that Mr Phillips' service had been terminated on the ground of redundancy. Further a reasonable inference is available that the services of Mr Phillips were dispenses with because of his conduct towards another person.

Jet Couriers (Sydney) Pty Ltd shall pay to Anthony Phillips the sum of $474.60.

Jet Couriers (Sydney) Pty Ltd shall pay to Anthony Phillips the sum of $47.46, being the amount for Goods and Services Tax.

Jet Couriers (Sydney) Pty Ltd shall pay to Anthony Phillips the interest on the sum of $474.60 at Supreme Court rates.

These Orders shall take effect on and from 29 October, 2008.

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.

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Judgment (56 paragraphs)

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Cases Cited (10)