In the period between February and April 2016, lorry owner drivers, members of the Transport Workers' Union, had concerns with certain matters going to their remuneration and their working arrangements with the principal contractor, Staples. I am told that those concerns involved doing home deliveries for what was said to be entirely inadequate remuneration and being given wrong directions to carry out deliveries, which I accept, if it were the case, would impact on their remuneration for their work.
On the evidence, the company was not moved to make any concession about those matters, or at least not to make any concession or come to any agreement that was satisfactory to the drivers.
They were clearly matters going to the working conditions under which the contractors worked with Staples and they were clearly matters which the Transport Workers' Union was perfectly entitled to bring on its members' behalf to this Commission, seek them to be conciliated and, if not available, to seek some kind of arbitral determination of those concerns.
That was not done. Rather, the drivers - not, as I understand it on the evidence, with the immediate advice or involvement of the Transport Workers' Union - decided to refuse to work for three successive days. If any person encouraged or advised the drivers to act in this way, particularly once it became clear that the company intended to insist on its contractual rights, then that person personally bears responsibility for the circumstances in which the drivers now find themselves.
I perfectly understand the frustration that arises in circumstances where negotiations are going nowhere against an opponent that one feels is not prepared to come to the party in any way. I understand that, but it should have been apparent at the outset and it certainly was apparent after the first day that the course of action the drivers adopted was going to lead to an impasse which would be resolved, and could only be resolved, against the drivers' interests. So it has transpired.
I make no comment at all, in the context of the application presently before me, about the company's decision. I neither condemn nor condone it today because it has no bearing upon what I am asked to do today. The remarks that I have just made point only to the inevitability of the outcome from the course of conduct that was adopted by the drivers and, therefore, the unwisdom of anybody who encouraged or advised it.
I am asked to do two things today: Make an interim determination under s 332(5) of the Industrial Relations Act 1996, ('the Act') restoring the contractual relationship, put shortly, or, in the alternative, to make an interim determination under s 314 of the Act, which is that part of the Act which provides for reinstatement, in contractual terms, of persons who have had their contracts terminated. They were put in that order and I will return to s 314 in due course.
I turn now to s 332 of the Act and those in the court will have heard that much of the argument before the Commission today centred on the proper interpretation and application of that Act.
An interim order is being sought from the Commission under s 332(5). The draft order with which the Commission was provided is in these terms:
"The Commission orders,
(1) That an interim determination be made under s 332(5) of the Industrial Relations Act 1996, ordering that Staples Australia Pty Ltd re-engage and provide work to the contract carriers contracted to it as at 21 April 2016, on the same terms and conditions as existed at that date.
(2) That his interim determination take effect from the date of the making of the order and remain in force for a period of one month."
The terms of the order itself might not be syntactically perfect but that does not trouble me. It is perfectly clear, on the face of the order, what is sought from the Commission.
In order to contemplate whether such an order can be made, I am obliged to address the power to make the order, which is set out expressly and only, in relation to s 332(5), in part 4, Dispute Resolution of the Act. There are a number of precursory tests which come before one can even consider looking at subs (5). I address them seriatim.
First, I am satisfied there is a matter properly before the Commission. The tests in subs 322(2), particularly (2)(c), are satisfied amply, in my view. It is the case that there is an application validly before the Commission.
Having passed through that gateway, that leads us to s 332(5), which deals with the circumstances in which an interim determination, which is exactly what is sought from the Commission, may be made.
First of all, the Commission has to consider whether the public interest is or could be affected by a question, dispute or difficulty referred to in the sections above. I have already found that there is such a question, dispute or difficulty before the Commission.
It seems to me that it would be open to conclude that the public interest would be affected by a major distribution firm having its business substantially disrupted and by, arguably, at least 40 small businesses being put out of work for a short or longer period of time, which, in broad terms, is what has occurred. Without ruling on it, I proceed on the basis that that is so, that is that the public interest is satisfied in this regard for the purpose of the statutory test.
Contrary to the submissions made by the company, I am satisfied that all reasonable steps to resolve the matter by conciliation, which is a function of this Commission and is distinct from discussions between the parties, which the parties are perfectly entitled to have but are not conciliation, have been taken. So, those precursors to looking at an interim determination are, in my view, for the purpose of today's decision at least, satisfied.
It is the nature of the determination itself that gives rise to doubt and which has been the subject of argument before the Commission today. I have read, in terms, the orders that are sought onto the record and whilst I am not constrained to make orders in the terms that are sought of me, the point is that the orders clearly go to making an interim determination, putting all the contract carriers who had contracts with Staples on 29 April 2016 back into contractual relations with Staples. That is what is sought.
When one looks at subs (6) of s 332, that subsection deals with the purpose of an interim determination and it says, in terms, what the purpose is meant to effect and for how long an interim determination can last.
On any reading of that subsection, in my view, it is abundantly clear that the mischief that the determination is meant to address is circumstances where things have changed within contractual relations between the parties. The purpose of an interim determination under s 332(6) is to maintain the status quo ante the events that led to the dispute, and I emphasise those words.
It is demonstrably intended to deal with the circumstance where something has arisen which brings the parties into industrial dispute. It does not provide the statutory address to the ultimate contractual consequences of that dispute, including the termination of those contracts. That seems to me to be abundantly clear from any plain reading of the Act. An interim determination - and it is only interim - up to a month, but it might be three days or ten days, to allow the subject matter of the dispute to be dealt with while the status quo is preserved, that is what the subsection is for. That is the power that it confers on the Commission and to read into it an ability to reinstate contracts that have been terminated by interim determination is, in my view, wrong and unavailable.
I have, I want to make it clear, no slavish attachment to a decision I gave earlier in TWU v Toll Transport Pty Ltd [2015] NSWIRComm 1018. I have had the benefit of learned counsel's submissions made today, expressly concerning that decision. I have listened to them carefully, I have taken them seriously and I have weighed them and I am, as always, perfectly prepared to be shown that I have wrongly formed a view and change my view.
But, having listened to counsel, reconsidered the matter and read the decisions to which I have been taken, including the decisions of Peterson J, a judge for whose decisions, if I may say so, I have significant respect, my view that s 332(6) simply does not give me any power, whether I wanted it to or not, to make an interim determination, remains. That is the effect of the subsection.
I observe that Peterson J, in the two decisions to which I was taken by counsel for the union, being TWU v P & O Trans Australia Pty Ltd [2002] NSWIRComm 19 and TWU (NSW Branch) v Conaust Ltd (1992) 46 IR 18, addressed the section and, in TWU v P & O used the section to make an interim determination as a means to restoring the status quo ante within a contractual relationship. I emphasise within the contractual relationship. Both the cases were about the allocation of work and, in my view, it is clear on reading his Honour's reasons and reasoning that his Honour firmly viewed and, in my view, correctly viewed, subs (6) as providing a power to deal with circumstances within an ongoing contractual relationship and not otherwise.
Hill v Director-General of the Department of Education and Training (NSW) (1998) 85 IR 201, to which I was taken by the Union, is readily distinguished. It is decided under a different statutory structure entirely and one which actually gives an ability in terms to do that which I cannot do under this section.
In my view, the correct reading of the statute, about which there has been so much argument today, is this and these are my reasons why, quite apart from relying upon the rationale and reasons adopted by Peterson J, in my view I am not permitted to make an interim determination, even if I wished to do so.
The interim orders that are contemplated under s 332(6) are for one month only. They are clearly designed to deal with the mischief of industrial situations, they are not designed to fit in with and they do not fit in with proceedings under s 314 of the Act which are about restoration of terminated contractual relations. For those proceedings in any practical terms could necessarily not be dealt with in a month and it would be incongruous and inappropriate that the parliament would actively determine that a person or a company could be put back into a contractual relationship, fall out of it again by, effectively, effluxion of time of the Commission's order, and all that happen well before any s 314 application could be dealt with, given the precursors to that determination under s 314, which would have to be given effect.
There is a second aspect to that too. It would mean that in the end the contractual relationship ended by effluxion of time and the effluxion of an order of the Commission, rather than by termination. Arguably, but I do not express a certain view about that, that would render otiose the effect of s 314.
But, in any event, to allow s 332(6) to provide interim reinstatement for a month or less in a matter capable of being determined under s 314 would be to read an inconsistent or absurd result under the legislation and I do not do that, I cannot do that. I rely on the case of Adler v George [1964] 2 QBD 7, [1964] 1 All ER 628 and other cases in that line of authority.
Secondly, the parliament was well aware of the possibility of giving a power to give interim or injunctive relief in respect of the ending of a contract. It does so in s 89(7), but it chose not to do so here. And again, one reads s 332, which deals with dispute resolution. If one reads that in comparison to the Commission's powers in dealing with industrial disputes under s 130, both regimes deal with industrial disputes, but under s 130 the Commission has access to its powers under, for example, s 89(7), that is to give an interim restoration of employment. But the same power was not given to the Commission under s 332 or in part 4 at all, and that difference must have been intended by the parliament. That is another pointer, and a clear one, in my view, to the fact that the parliament did not intend that to occur or it simply would have done so.
And there is further this: In my view, the degree of detail in s 314, when it is read against ss 84 to 89 of the Act - the one is dealing with contractors, the other dealing with employers and employees - is inconsistent with any proposition the legislature intended termination of a contract of carriage to be dealt with in any way outside s 314. In other words, in my view, s 314 provides a comprehensive code for dealing with contracts which are said to be unfairly terminated.
I then turn to the second application that was made to the Commission, that is for an interim determination under s 314. In my view, there is no power for me to do that, for exactly the reason I have just gone to. The parliament gave that power expressly to the Commission in the context of employment relationships under s 89(7). It expressly chose not to give it under s 314. In those circumstances, the superficially attractive argument, and I do not say that it was other than a proper submission to be made, put on behalf of the Union that I should infer the power, is not in fact available. It is not available in circumstances where there has been an express choice to place that power in the Commission's hands in another part of the Act, going to exactly the same kind of remedy, but not to place it in the Commission's hands here. An inference of the kind sought is simply not available in those circumstances.
But I do not decide that in a formal sense today because I do not need to decide that today. That is because the requirements of s 315, which are quite precise and quite detailed, and go beyond a broad conciliation of an industrial dispute, as occurred the other day, have not yet been met and I would have no power to do anything under s 314 until I dealt with the requirements of s 315.
It follows that I dismiss the application made to the Commission today to make an interim order or orders pursuant to s 332 (6). I propose to list the s 314 applications for conciliation before me as quickly as I humanly can, which is at 10 o'clock on Tuesday, 3 May.
PETER NEWALL
Commissioner
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Decision last updated: 14 July 2016