Zader v Truck Moves Australia Pty Ltd

1. The appeal be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

NORTH AND JESSUP JJ: 1 This is an appeal from the making of two declarations by a single Judge of the court on 2 October 2015. Those declarations, made at the behest of the now respondent, Truck Moves Australia Pty Ltd, were as follows: 1. It be declared that the applicant's employment of each respondent was not covered by the Road Transport and Distribution Award 2010 or the Road Transport (Long Distance Operations) Award 2010. 2. It be declared that during the period between 1 January 2010 and the respective dates on which his employment by the applicant terminated, the applicant was required to pay each respondent in accordance with the national minimum wage order as in force from time to time made pursuant to the provisions of the Fair Work Act 2009 (Cth) or at any higher rate actually paid to him. The question in the appeal is whether the primary Judge was in error in finding that the employment of the now appellant, John Zader, was not covered by the first of the two awards mentioned, the Road Transport and Distribution Award 2010 ("the award"). 2 Relevantly to the appeal, the coverage of the award was stated in cl 4.1, as follows: This industry award covers employers throughout Australia in the road transport and distribution industry and their employees in the classifications listed in clause 15 - Classifications and minimum wage rates to the exclusion of any other modern award. It is contended on behalf of the appellant that the primary Judge was in error to have found that the respondent was not "[an employer] … in the road transport and distribution industry …". 3 The expression "road transport and distribution industry" was the subject of a multi-part definition in the award, it being only the following general passage that was said to catch the respondent's operations: (a) the transport by road of goods, wares, merchandise, material or anything whatsoever whether in its raw state or natural state, wholly or partly manufactured state or of a solid or liquid or gaseous nature or otherwise, and/or livestock, including where the work performed is ancillary to the principal business, undertaking or industry of the employer; … Specifically, the issue upon which the case below turned was whether the respondent's business involved "the transport by road of goods, wares, merchandise, material or anything whatsoever". The primary Judge held not. 4 Predominantly, the respondent's business was to deliver new unregistered, or partially built, commercial vehicles from importers to wholesalers. The respondent took possession, and so became bailee for reward, of these vehicles. The vehicles did not carry any freight or goods. They were driven un-laden both locally and interstate as the client required. They were predominantly unregistered, or in a pre-registration state, and, in most cases, they were fitted with trade plates owned by the respondent. The vehicles could be of any size or type, including rigid vehicles with varying gross vehicle mass, two or more axle rigid vehicles or larger trucks. The respondent also moved passenger cars, such as fleet vehicles between yards or to auctions, or delivered new vehicles and returned with the traded-in vehicles that they replaced, again using trade plates, including where such vehicles were registered. It was understood by the respondent that, under State and Territory laws, a vehicle being driven with trade plates could not carry freight or a load. 5 The primary Judge held that the movement of vehicles as described in the previous paragraph did not constitute "the transport by road of goods, wares, merchandise, material or anything whatsoever". His Honour said: 52 The natural and ordinary meaning of the noun "transport" is: • the act or method of transporting or conveying [from one place to another] (Macquarie Dictionary online: sense 5); • the action of carrying or conveying a thing or person from one place to another (Oxford English Dictionary online: sense 1a). 53 I am of opinion that the expression "the transport by road of goods" as used in paragraph (a) of the industry definition in the RTD Award means the carriage of goods by road and does not extend to the mere driving or ferrying of vehicles between locations. 54 That is because the definition, read as a whole in the context of the RTD Award and the circumstances in which it was made, … identifies an industry that engages in the carriage and distribution of goods by road, as opposed to the mere driving of vehicles on roads. The qualifying words "of goods" distinguish the area of industrial activity caught by the initial words of paragraph (a) from the transport by road of passengers. The transport of goods and passengers are distinct and well understood forms of entrepreneurial activity that can be undertaken by road, sea or air. 55 A pilot who flies a plane could not be said to be engaged in the transportation of the plane itself. Rather, the plane is the means of transportation. So too, in the context of the RTD Award, the industry definition is intended to cover the means by which goods are carried from one place to another by road, but not to treat the vehicle of conveyance itself as the goods transported. His Honour then proceeded to consider the contribution to the construction of the contentious passage in the award made by the other award referred to (see para 1 above). 6 The appellant's case on appeal is that the respondent's business was caught by that passage because it involved the transport by road of vehicles, notwithstanding that this was done by driving the vehicles themselves. 7 It must be recognized that vehicles would, in the right context, readily be characterised as "goods". The carriage of vehicles on the back of a truck would, therefore, be a business activity that would fall comfortably within the definition in the award. Indeed, the predominant nature of the respondent's business as described above leaves little doubt but that the trucks which it moved from importer to wholesaler were "merchandise": they were, at that stage, articles of commerce in themselves. If the primary Judge was correct, therefore, it was not because the "goods" or "merchandise" with which the case was concerned happened to be vehicles. 8 Further, we do not consider that the appellant's point is sufficiently answered by making a distinction between goods (or passengers) being carried by a vehicle and the vehicle itself. Thus we do not, with respect, agree that the analysis is advanced to any extent by the plane analogy contained in para 55 of the primary Judge's reasons, set out above. We are here concerned with the business of the putative employer. When an airline transports its cargo of goods or passengers, it is not undertaking the business activity of transporting the plane. Likewise, when a haulier transports its cargo of goods by road, it is not undertaking the business activity of transporting the truck involved in that operation. It was no part of the appellant's case to suggest otherwise. However, it was submitted that the respondent's business was to transport the trucks themselves. The very purpose of each trip was to move the truck from one point to another. In our view, if that submission is good, it is not answered by reference to a business operation of an entirely different character, one which has the purpose of moving cargo as such. 9 Likewise, we do not, with respect, consider that the dichotomy posited by the primary Judge between "the carriage and distribution of goods by road," on the one hand, and "the mere driving of vehicles on roads", on the other hand, comes satisfactorily to grips with the appellant's case. That case did not involve the proposition that the respondent's business involved the "mere driving of vehicles". As mentioned above, it was a critical aspect of that case that the purpose of the commercial operation in which the respondent engaged was to deliver (to use a neutral term for the moment) the vehicles from the places where they were to the places where its customers wanted them to be. 10 The primary Judge referred to the award's predecessors, but little or nothing of any constructional value was revealed thereby. The relevant provision in the definition of "road transport and distribution industry" in the federal Transport Workers Award 1998 was relevantly indistinguishable from that used in the award. The words "by road" did not appear in the previous award. They were added only to mark out a point of distinction between transport of the kind intended to be covered by the award and transport of goods etc by some other means, presumably including air, sea and rail. Beyond that, the simple, if inconvenient, fact appears to be that the award was made in an environment where no-one drew to attention the specific issues that might arise from the conduct of a business such as the respondent's. 11 At base, the case came down to the sense in which the word "transport" was used in the definition of "road transport and distribution industry" in the award. Was the word confined, as the respondent contended, to the context of carriage, or did the word also encompass, as the appellant contended, the context of movement, where the corresponding verb was transitive (as in moving the deck chairs)? Both meanings are available: "The action of carrying or conveying a thing or person from one place to another", OED, 2nd ed. In the context in which the word is used in the award, however, we prefer the former. 12 The coverage clause of the award refers not to transport simpliciter, but to the transport of goods, wares, merchandise and material. Notwithstanding that trucks, considered as items, might come within the denotation of at least the first and third of these words, the overall sense of the phrase is that of cargo or freight. The words are referring, in our view, to things which are carried. In such a setting, the most natural sense in which the word "transport" is to be understood is that of carriage. The additional words, "anything whatsoever" expand the class, of course, but they are to be understood in the same sense as goods, wares, merchandise and material: they are, as the lawyers would say, to be read ejusdem generis with those more specific words. They do not introduce a concept of transport which is foreign to the context in which they appear. 13 Thus it is not to the point that trucks may be goods or merchandise. As mentioned above, so they may be, but the operation of moving them should, in our view, be regarded as "transport" only when they are being carried as such. To regard a pre-registration truck being driven to the wholesaler's premises - to take the example which appears to be typical of the respondent's operations - as goods or merchandise being transported would be, in our view, an awkward and unnatural understanding of the words used in the clause. 14 No doubt reflecting the way the case was argued before him, the primary Judge dealt also with the other award referred to - that concerned with so-called long distance operations - for such constructional assistance as it might provide in relation to the words in the award with which his Honour was directly concerned. His Honour also dealt with an argument, apparently put on behalf of the appellant, that the award must extend to situations in which trucks were driven on roads but without any cargo because of the presence in it of a classification of driver of a mobile crane. While we do not have any issue with what his Honour said in these respects, we take the view that the contribution which these kinds of considerations make to the task of construing the relevant definition in the award is highly tangential at best, and ultimately of little concrete value. 15 We would dismiss the appeal. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices North and Jessup.