Zader v Truck Moves Australia Pty Ltd [2016] FCAFC 83 | Case summary

Federal Court of Australia (Full Court)|2016-06-10|Before: Flick JJ, Jessup JJ

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.

FLICK J 16 The Appellant in the present proceeding is Mr John Zader. From August 2005 through to either March or August 2013, Mr Zader was employed by the Respondent, Truck Moves Australia Pty Ltd ("Truck Moves"). 17 In issue is whether Mr Zader is entitled to be paid pursuant to the Road Transport and Distribution Award 2010 (the "Road Transport and Distribution Award") (as he contends) for that period of his employment after that Award came into operation or pursuant to the national minimum wage order made pursuant to Pt 2-6 of the Fair Work Act 2009 (Cth) (the "Fair Work Act") (as Truck Moves contends). 18 In very summary form, Truck Moves employs drivers to move unladen vehicles for its clients between locations. 19 The primary Judge agreed with Truck Moves: Truck Moves Australia Pty Ltd v Simmonds [2015] FCA 1071. Mr Simmonds was another driver. He is not a party to the appeal. 20 The appeal itself raises no question of principle dividing the parties as to the manner in which a modern award, such as the Road Transport and Distribution Award, is to be construed. The question dividing the parties is confined to a simple question of construing the terms of cl 4.1 of that Award. 21 The appeal is to be dismissed.

The Road Transport and Distribution Award 22 A modern award applies to an employee where "the award is expressed to cover the employee…": Fair Work Act, s 48(1). 23 Clause 4 of the Road Transport and Distribution Award provides in part as follows: 4 Coverage 4.1 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. 4.2 This award does not cover employers and employees covered by the following awards: … • Road Transport (Long Distance Operations) Award 2010 whilst undertaking long distance operations. ... 4.8 Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work. NOTE: Where there is no classification for a particular employee in this award it is possible that the employer and that employee are covered by an award with occupational coverage. The phrase "road transport and distribution industry" is defined in relevant part in cl 3.1 as follows: road transport and distribution industry means: (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; … Clause 3.1 continues on to provide further instances in paras (b) to (i) of that which is included within the definition, including the "receiving, handling or storing of goods, wares" etc. (para (b)); the "storage and distribution of goods" etc. (para (c)); "mobile food vending" (para (e)); and "the road transport of crude oil or gas compensate" (para (g)). 24 Clause 4 of the Road Transport (Long Distance Operations) Award 2010 (the "Long Distance Operations Award"), to which reference is made in cl 4.2 of the Road Transport and Distribution Award, provides in part as follows: 4 Coverage 4.1 This industry award covers employers throughout Australia in the private transport industry engaged in long distance operations and their employees in the classifications listed in Schedule A - Classification Structure to the exclusion of any other modern award. 4.2 The award does not cover an employee while they are temporarily required by their employer to perform driving duties which are not on a long distance operation, provided the employee is covered by the Road Transport and Distribution Award 2010 while performing such duties. The phrase "private transport industry" is defined as meaning "the transportation by road of all materials whether in a raw or manufactured state, or of livestock, throughout Australia". Clause 4.2, it should be noted, was only inserted after Mr Zader ceased employment with Truck Moves. 25 Common to both awards (inter alia) is the term "transport". The word has various dictionary definitions including "the carrying or conveyance of a person or thing from one place to another" and "move or carry from one place to another": The New Short Oxford English Dictionary (1993 ed.). Albeit of no present relevance, it may be noted that the dictionary definition also refers historically to a "transported convict." 26 In Transport Workers' Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148 Siopis, Buchanan and Flick JJ concluded that the test that should be applied when construing the terms of a modern award is as follows: [22] The test that should be applied is to discern the objective meaning of the words used bearing in mind the context in which they appear and the purpose they are intended to serve. Here, the definition in question expressly extended to work ancillary to the principal business. That was the true question for examination. Their Honours continued: [46] … giving primacy to the text does not deny the importance of understanding the context in which an instrument is made, and which it is intended to address, nor the utility of bearing in mind the facts as they are known at the time the instrument is drafted. When construing the terms of a modern award, the "search is for the meaning intended by the framer(s)": Kucks v CSR Ltd (1996) 66 IR 182 at 184. Justice Madgwick there observed that "narrow pedantic approaches to the interpretation of an award are misplaced". 27 The words employed in an award are, accordingly, not to be construed "in a vacuum divorced from industrial realities": City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813 at [57], (2006) 153 IR 426 at 440 per French J (as his Honour then was). The "language of the agreement", it has been said, is to be "understood in the light of its industrial context and purpose": Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10 at [2], (2005) 222 CLR 241 at 246 per Gleeson CJ and McHugh J. See also: Shop Distributive and Allied Employees' Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [14] to [16] per Marshall, Tracey and Flick JJ; Construction, Forestry, Mining and Energy Union v Port Kembla Coal Terminal Ltd (No 2) [2015] FCA 1088 at [240] to [245], (2015) 253 IR 391 at 436 to 437 per Murphy J.

The transport by road of goods 28 The question dividing the parties in the present proceeding is simply whether the delivery of the unregistered vehicles from one location to another is the "transport by road of goods…". 29 No question arises whether the business of Truck Moves otherwise fell within the Road Transport and Distribution Award by reason of it being involved in: the "distribution industry" - the coverage of the 2010 Award not being confined to "road transport" but also embracing the "distribution industry"; the "transport by road" of one or other of the class of product that may be so transported, including the transportation of "anything whatsoever"; the "transport by road of goods" where the nature of its business was "ancillary to the principal business", within the meaning of cl 3.1(a); or the "road transport" industry falling within one or other of the paragraphs of the definition of the industry in cl 3.1, paras (b) to (i). 30 Although there were limited exceptions, the business of Truck Moves was largely confined to the movement of the unregistered vehicles. The business was predominantly to deliver commercial vehicles that were brand new, not registered or partially built from importers to wholesalers. The vehicles did not carry any freight or goods. The vehicles were either unregistered or in a pre-registration state. They could be of any size, including rigid vehicles with varying gross vehicle mass, two or more axle rigid vehicles or larger trucks. Truck Moves also moved passenger cars, such as fleet vehicles between yards or to auctions. 31 It was contended on behalf of Mr Zader that the "goods" being transported were the unregistered vehicles; Truck Moves contended that cl 4.1 applied to the movement of "goods" by means of trucks, the "goods" being separate from the vehicle in which those "goods" were transported. 32 Notwithstanding what may have been understood as an initial flirtation by Counsel for Mr Zader with the proposition that the phrase - "the transport by road of goods" - should be construed by reference to the discrete words of that phrase, namely whether Truck Moves was involved in: "transport"; "by road"; "of goods" - namely, the unregistered trucks it was ultimately common ground that the phrase was to be construed as a composite whole. It was also common ground for the purposes of the appeal that the business of Truck Moves did not involve the carriage by the unregistered trucks of any "goods". 33 The argument advanced on behalf of Mr Zader is rejected. 34 The "objective meaning" of the phrase "transport by road of goods" is that there is transported by road "goods, wares, merchandise…". The product being transported is not to be confused with the means by which such products are transported. The phrase "transport by road" identifies the means whereby product is transported - be it by means of truck of otherwise. The phrase "by road" serves to separate the means of transport from such other means of transport such as rail or air. Whatever the means of transport, the means of transport is separate from the product being transported. The phrase "goods, wares, merchandise, material or anything whatsoever" etc is a means whereby the product being transported was sought to be described in as comprehensive a manner as possible. The unregistered vehicles being delivered by Tuck Moves cannot at one and the same time be both the product being delivered and the means by which delivery of the product is effected. 35 A review of the remaining paragraphs to the definition in cl 3.1, being paras (b) to (i), also reinforces a construction of cl 3.1(a) such that the object and purpose of cl 3.1 is to contrast that which was the object of the activity - namely, the "goods wares, merchandise" etc - from the activity itself, namely "transport by road" (cl 3.1(a)) or "storage and distribution" (cl 3.1(c)). 36 A review of the background context out of which the Road Transport and Distribution Award emerged is (with respect) not helpful and certainly does not assist any contrary conclusion. Clause 6.1 of the Transport Workers Award 1998, for example, provided that the "industry covered by this award is or is in connection with the transport of goods, wares, merchandise, material or anything whatsoever…". And the statement made by the Fair Work Commission when making the Road Transport and Distribution Award and the Long Distance Operations Award that the definition of "the road transport and distribution" was "broad" takes the matter no further: Award Modernisation - Statement [2009] AIRCFB 50 at [98]. Whatever the terms employed, the assumption has been that a product is being transported; nothing said by the Commission supports a conclusion that the product transported may itself also be the means of transport. 37 Nor does a review of other provisions of the Road Transport and Distribution Award or the Long Distance Operations Award lead to any different conclusion. Reference was made in argument to: the balance of cl 3.1(a) of the Road Transport and Distribution Award, namely the transportation of "goods, wares, merchandise, material…"; clause 16.2(b)(ii) and (iii) of the Road Transport and Distribution Award which provided for the payment of an allowance for "[a]ny employee required to drive a motor vehicle with a truck loading crane mounted on the vehicle" and "any employee required to drive a motor vehicle with a side-lifter crane mounted on the vehicle" at an additional 0.46% of the standard rate per day; and the Long Distance Operations Award. The width of the examples of product that could be transported "by road" was, as the primary Judge correctly held, intended to cover "the plethora of narrow, specialised and individual Commonwealth, State and Territory awards and other forms of industrial regulation that the two modern awards were replacing": [2015] FCA 1071 at [58]. His Honour was further correct in concluding that there was "[n]othing in the Commission's reasons there, or in its earlier Statement [2009] AIRCFB 50, suggested that it had in mind that either of the two Awards would cover a business of the kind operated by Truck Moves". Although there may well be speculation as to the likelihood of vehicles with mounted cranes themselves transporting "goods" by road, and speculation as to the reason for including clauses such as cl 16.2(b)(ii) and (iii) in the Road Transport and Distribution Award, the primary Judge was correct in his conclusion that such provisions do "not suggest that the work performed by the two drivers as employees of Truck Moves was covered by the RTD award": [2015] FCA 1071 at [67]. 38 The context in which the Commission made the Road Transport and Distribution Award, the Long Distance Operations Award and the Mobile Crane Hiring Award 2010 does not suggest that the clause presently in question should be given anything other than the "objective meaning of the words" employed in cl 4 (cf. Coles Supermarkets), namely a meaning which confines its operation - no matter how "broadly" it may be construed - as being the transportation of product by road rather than also including as "goods" the very method of transport. Nothing can be gleaned from statements made by the Commission which exposes any intention of the drafters of cll 3.1 and 4 of the Road Transport and Distribution Award (cf. Kucks v CSR) to give the words employed any different meaning, such as that for which Mr Zader now contends. 39 Such references as were made in submissions to other provisions of the Road Transport and Distribution Award (including Sch C, being the classification structure and minimum rates of pay of various employees) suffered from the dual difficulty that: the Award was expressed to cover not merely those involved in the "road transport" industry but also the "distribution industry"; and the definition of those involved in the "road transport and distribution industry" included all of those activities identified in cl 3.1, paras (a) to (i), and not simply the limited phrase now in issue, namely "transport by road of goods". It was thus difficult to construe the phrase "the transport by road of goods" necessarily by reference to other provisions of the Award which may have been more apposite to some other industry or some other aspect of the industry. 40 Finally, it should be noted that the consequence of these conclusions is that drivers such as Mr Zader fall within no recognised industry and are not covered by any modern award. This follows from the simple fact that Mr Zader is not "covered by" the Road Transport and Distribution Award. But that outcome cannot dictate cl 4 of the Road Transport and Distribution Award being given a meaning which it otherwise does not bear. 41 Although it is understood that the question as to the coverage of cl 4 of the Road Transport and Distribution Award has been raised with the Fair Work Commission as part of its four yearly review being undertaken pursuant to s 156 of the Fair Work Act, what action the Commission may take to vary cl 4 remains a matter for it to determine. It remains open to Mr Zader (and perhaps other employees in the same position) to make an application pursuant to s 157 of that Act but, again, that remains a matter for Mr Zader and those advising him to pursue if they see fit.

CONCLUSIONS 42 The objective meaning of the phrase "the transport by road of goods" does not include, as the product being delivered, the very means of transport. The "goods" being delivered are separate from the means of transport. There is no reason to construe that phrase in any different manner by reference to other provisions of the relevant Award itself, other Awards also made in 2010 as part of the award modernisation process, predecessor State Awards or otherwise. 43 No appellable error is exposed in the conclusions of the primary Judge. His Honour was correct to make the orders that he did. 44 The appeal should be dismissed. No question of costs arises.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

Fair Work Act 2009(Cth)ss 156, 157, Pt

Zader v Truck Moves Australia Pty Ltd

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