Transport Workers' Union of Australia, New South Wales branch & Nowra Coaches Pty Limited trading as Premier Motor Service [2001] NSWIRComm 1049 (25 July 2001)

Last Updated: 31 January 2002

INDUSTRIAL RELATIONS COMMISSION

OF NEW SOUTH WALES

CORAM: CONNOR C

Wednesday, 25 July, 2001

Matter No. IRC 6159 of 1999

IN THE MATTER of a dispute between the Transport Workers' Union of Australia, New South Wales Branch and Nowra Coaches Pty. Limited trading as Premier Motor Service re: breach of the award.

D E C I S I O N

Background

Pursuant to the provisions of S.130 of the 1996 Industrial Relations Act, the Transport Workers' Union of Australia has lodged a notification of an industrial dispute with Nowra Coaches Pty Limited, trading as Premier Motor Service, alleging a breach of the Transport Industry - Motor Bus Drivers and Conductors (State) Award. The S.130 notification refers in that respect to an:

"...unilateral decision by the company to change the award governing the conditions of its employee bus drivers from the Transport Industry - Motor Bus Drivers and Conductors (State) Award to the Transport Industry - Tourist and Service Coach Drivers (State) Award..."

The matter was allocated to me and I set it down for a compulsory conference on Monday, 15 November, 1999 (in the AMP Centre in Wollongong) and Friday, 29 November, 1999, Monday, 14 February, 2000, Thursday, 23 March, 2000 and Thursday, 8 June, 2000. Conciliation failed to resolve the matter at that time. I issued the certificate of attempted conciliation required by S.135 and lodged it in the prescribed manner. The matter proceeded to arbitration before me.

On Tuesday, 18 July, 2000 I conducted inspections and on Wednesday, 19 July, 2000 I convened compulsory conference proceedings for an arbitrated hearing. In the proceedings Mr Hatcher represented the TWU and Mr Ward represented Nowra Coaches and the Bus and Coach Industrial Association of New South Wales. At issue in the proceedings is an interpretation of the relevant provisions of the two State awards - the State bus drivers award and the State coach drivers award. In essence, it is a question of determining which of those two State awards more appropriately covers the work performed by the employees of Nowra Coaches.

In the morning of Tuesday, 18 July, 2000 the inspection took place at the Girraween bus and coach depot of Baxter's Coach Lines. The afternoon inspection on that day took place at the Regents Park depot of Nowra Coaches. The matter then proceeded into arbitration on Wednesday, 19 July, 2000 and evidence was led by Mr Hatcher. He called two casual drivers employed by Nowra Coaches as witnesses in the proceedings: Mr M N Wilkins and Mr C E Johnston.

At that point, and before Mr Ward presented his case or called any witnesses to give evidence in the compulsory conference proceedings, I formed the view that there was insufficient material before me at that stage to convincingly answer the type of case that was being presented to me in the proceedings. I aborted the proceedings, directing the parties into further discussions. I had in mind further negotiations between them to address their own particular problems, possibly taking the form of an enterprise agreement, rather than an interpretation of the existing State common rule awards for bus and coach drivers.

I considered it a more productive course for the parties to explore other avenues less likely be produce a "win" or a "loss" than the resolution of the matter currently before me in these arbitrated compulsory conference proceedings. But further negotiations produced no positive outcome and, indeed, there appears to have been concern in some circles, judging by the amount of correspondence that has been forwarded to me or representations that have been made in various areas, that such negotiations between the TWU and Nowra Coaches has some sinister aspects to them. That is simply not the true position and the TWU cannot constructively negotiate in those circumstances. Consequently, the TWU claim remained unresolved.

The TWU members employed by Nowra Coaches have seen this matter in black or white terms, as to which of two State awards applies to them - and that remains the issue before me. It must be accepted that the operations of Nowra Coaches have many unique features not specifically dealt with in either the existing State bus drivers award or the State coach drivers award. But the question now before me is confined to which of the two State awards apply (or, indeed, as Mr Ward suggested in his submissions, whether either State award applies). It is an "all or nothing" approach which I must confess does not attract itself to me but that is the course that has been charted. It is certainly not the "win/win" approach to which I was attempting to steer the parties.

Upon a request by the TWU I reconvened the proceedings and the arbitration of the issue in dispute continued on Wednesday, 23 May, 2001 and Thursday, 24 May, 2001. Mr Ward argued that, in the light of jurisdictional issues (to which I will refer a little later in this decision) the matter should not proceed. He made that submission because of his concern that, following my decision in the matter, it would not be the end of the claim and it would be open for any aggrieved party to proceed elsewhere, ie before the local courts or an industrial magistrate. I rejected Mr Ward's argument in that respect on the basis of certain undertakings given by Mr Hatcher which satisfied me that the conclusion of these proceedings will finally determine the issue before me. Mr Ward then presented his case and called two witnesses: Mr B G Macdonald, an executive director of the BCA, and Mr J D King, managing director of Nowra Coaches.

Jurisdiction

S.136(1) sets out my jurisdiction in the arbitration of an issue in dispute in S.130 compulsory conference proceedings after conciliation has not assisted in resolving the matter, viz:

"The Commission may, in arbitration proceedings, do any one or more of the following:

(a) make a recommendation or give a direction to the parties to the industrial dispute,

(b) make or vary an award under Part 1 of Chapter 2,

(c) make a dispute order under Part 2,

(d) make any other kind of order it is authorised to make (including an order made on an interim basis)."

Dispute orders extend by virtue of S.137(1) to a range of matters. It reads as follows:

"The Commission may make the following kinds of dispute orders when dealing with an industrial dispute in arbitration proceedings:

(a) The Commission may order a person to cease or refrain from taking industrial action.

(b) The Commission may order an employer to reinstate or re-employ any one or more employees who were dismissed in the course of the industrial dispute or whose dismissal resulted in the industrial dispute.

(c) The Commission may order an employer not to dismiss employees in the course of the industrial dispute if the employer has threatened to do so.

(d) The Commission may order a person to cease a secondary boycott imposed in connection with the industrial dispute."

It is fundamentally a question of State award coverage at issue in these arbitrated S.130 compulsory conference proceedings - a matter of interpretation. But is there authority under the 1996 Act for such a function in S.130 proceedings?

Questions of interpretation have in the past been answered conclusively by industrial tribunals by way of order. Indeed, in the Public Hospital (Medical Officers) Award Case (1989) 31 IR 161 the Full Bench of the former State Industrial Commission (Fisher J - President, Cahill J - Vice President, Sweeney and Hill JJ), in the context of the 1940 Industrial Arbitration Act, expressed the view (at p.174) that it was appropriate that a decision involving the interpretation of a State award take the form of an order.

But the interpretation of documents remains primarily a judicial function and the subject of declaratory relief, something which is reserved in the 1996 Act to the Commission on Court Session by virtue of S.154, viz:

"(1) The Commission in Court Session may make binding declarations of right in relation to a matter in which the Commission (however constituted) has jurisdiction. The Commission in Court Session may do so, whether or not any consequential relief is or could be claimed.

(2) Proceedings before the Commission in Court Session are not open to objection on the ground that a declaration of right only is sought."

Because these S.130 proceedings are arbitral in nature - the resolution of a particular industrial dispute - the question before me would appear to be beyond my jurisdiction. That is certainly the position taken by Hungerford J in Kellogg (Australia) Pty Limited v. National Union of Workers (1998) 89 IR 391 at p.392, viz:

"...Although the arbitration was before the Commission, moved by Kellogg pursuant to S.136(1)(d) of the Act to `...make any other kind of order it is authorised to make...' in relation to the dispute, it was clear that the relief sought arose in the dispute proceedings but was in the nature of a declaration as to the right of Kellogg to implement its proposals having in mind the provisions of the award. By reason of S.154 of the Act, relief of that nature is exclusively within the declaratory jurisdiction of the Commission in Court Session..."

Of course, the interpretation of industrial instruments remains a fertile field of industrial dispute, as it has in this case, and I would think it to be appropriate, as a matter of policy, not to fetter my powers and discretions in the resolution of industrial disputes in any way. What I have in mind is what is termed an "arbitral" interpretation, a concept which has long been recognised in the Federal industrial jurisdiction where, because of restrictions from the Constitution, an historical distinction has been drawn between arbitral and judicial functions [Waterside Workers' Federation of Australia v. Gilchrist, Watts and Sanderson Limited (1924) 34 CLR 482 at pp.528 and 529]. But is such an approach authorised by the 1996 Act?

S.175 does contemplate interpretation of industrial instruments, including State awards, in S.130 proceedings, viz:

"The Commission may, for the purpose of exercising its functions in connection with a matter before it, determine any question concerning the interpretation, application or operation of any relevant law or instrument (including the industrial relations legislation and any industrial instrument."

But as I see the position, S.175 is not the source of my jurisdiction to interpret industrial instruments. It does not indicate how such a decision of interpretation should be put into effect. It is facilitative only, to authorise me during any proceedings, including S.130 compulsory conferences, to interpret an industrial instrument which, in itself, as in this case, may be the root of the matter in dispute between the parties. S.175 may come into play in S.130 proceedings but it does not stand alone as the source of my power.

I must look elsewhere in the 1996 Act for authority in these S.130 compulsory conference proceedings and, in particular, to Ss.136(1) and 137(1). One possible sources of jurisdiction was suggested by Mr Hatcher: I may "...make a recommendation or give a direction..." under S.136(1)(a). It was Mr Ward's concern that a recommendation of that nature was far from a final determination of a matter in dispute and it would not advance the case much further than a gentle suggestion to the parties in the light of fully arbitrated proceedings - something of an anti-climax I would think and something which would leave the dispute alive, as Mr Ward feared.

In my opinion the word "direction" in S.136(1)(a) has more strength, however. Rule 84 provides as follows:

"A tribunal may generally give all such directions and do all such things as in its opinion will enable expense or delay to be reduced and will help to achieve a prompt hearing of the matters at issue between the parties and will contribute to the expeditious conduct of the proceedings and the just determination of the matter or dispute and the equitable disposal of proceedings."

Rule 84 primarily suggests to me a matter relevant to the procedure for the determination of an issue in dispute rather than the determination itself. Nevertheless, I believe that it is also something which is final, binding and may be the subject of appeal by any party disaffected by such a direction.

I note the unreported decision of the Full Bench of the Commission (Wright J - President, Walton J - Vice President and Connor C) in the Teacher's Case [Matter No. IRC 6326 of 1999] where interlocutory directions made at first instance under S.134(2), ie in the conciliation phase of an industrial dispute (and consequently ahead of the issuing of the S.135 certificate of attempted conciliation), nevertheless grounded an appeal, with respect to which leave was not granted. The upshot of that position, to my mind, is that any decision taking the form of a direction that I make on a matter before me, especially after I have issued a S.135 certificate of attempted conciliation and entered the arbitral phase of a dispute, is a final determination of the issue in dispute and, subject to a right of appeal, binding on the parties to the dispute.

Merit

There are 32 vehicles owned by Nowra Coaches and they are involved in long distance coastal travel - from Sydney to Melbourne or from Sydney to Brisbane - with designated stops along the way. The vehicles in the fleet are relatively modern and are identical and I inspected one of them. There is room for 60 passengers on the vehicles. They have a toilet and ample space for luggage. They have reclining seats and are fitted with seat belts. Each vehicle may not stand passengers. The driver receives luggage and places it in the place under the vehicle for it, issuing a ticket to the passenger. I am informed that some freight may be carried in the luggage area if space permits.

Bookings for the journey are controlled through a central office but the drivers of the passenger vehicles have a live manifest in the sense that they may take on new passengers at any designated stop. When they take on additional passengers in that way they communicate by mobile telephone through to central bookings who confirm that there is a position on the vehicle and indicate to the driver the cost of that journey. The drivers then use a ticket machine to issue a ticket to the passenger. They accept cash payment only (not credit cards) for the journey. They carry no cash and if they need to provide a passenger with change they do so at the next designated stop where they obtain change for the cash they have received and give the change to the passenger.

By comparison, Baxters has a fleet of 90 vehicles attached to its Girraween and Villawood depots, the bulk of which (60 vehicles) are attached to the Girraween depot. Approximately 10% of those vehicles are used for tourist couch services. All Baxter drivers are paid under the State bus drivers award (which I understand gives a higher rate of remuneration to its employees than would be the case under the State coach drivers award). That obviously gives a degree of flexibility to Baxters in its operations.

I had inspected a range of different vehicles at the Baxter depot used for ordinary bus route services, school services and coach services. It is a modern and diverse fleet. Many of the vehicles would be suitable for either bus or coach work, subject to minor modifications. The vehicles used as coaches are predominantly used for day excursions, having no toilet in the vehicle and limited space for luggage, although my inspection included one vehicle exclusively used as a tourist coach and fitted out with a toilet and considerable luggage space so that it would be suitable for long distance travel.

There are restrictions on the use of tourist coaches in general. They may not operate on runs in competition with State owned transport agencies. Nor may they operate as buses and accreditation to drive coaches and accreditation to operate a bus service are different. Coaches do not comply with ADR 58 (established design specifications for buses and a standard that any vehicle to be used as a bus must meet) and Schedule F (which flows out of long standing arrangements between the Department of Motor Transport and the BCA for bus operations which now have the force of regulation). For instance, vehicles used exclusively as tourist coaches are licensed as tourist vehicles (TV) and may not be used as buses which are licensed as motor omnibuses (MO). State government subsidies (or reimbursements) apply to bus services but not coach services.

No standing is permitted on coaches, whilst buses are licensed for passengers to stand and are accordingly fitted to permit a specified number of standing passengers. Seat belts are fitted to the more modern coaches and must be worn when they are fitted: there are no seat belts on buses for the obvious reason that passengers will be frequently embarking and disembarking from a bus but invariably will not be doing so in a coach. If a bus is to be used as a school bus it must have "wag/wag" lights on the rear. That is not necessary on an ordinary route service bus and certainly not on a tourist coach.

There are no definitions provided in either the State bus drivers award or the State coach drivers award to provide any real assistance as to the distinction between a "bus" and a "coach" (although some assistance found elsewhere - legislative and from the dictionary - I will discuss shortly in this decision). The participants in the bus industry have apparently been content to operate on the basis of what was generally accepted by everybody to be the true position; whilst, like the distinction between an elephant and a rhinoceros, no one may have been bothered to describe in words what they are, everybody knows what they are when they confront them.

On that basis, at least, the vehicles of Nowra Coaches which I inspected and with respect to which a series of photographs was provided in these compulsory conference proceedings [Exhibit 12] are unquestionably coaches, suitable for long distance travel, which is what they do in fact. They have reclining high back seats, seat belts, a toilet, television, large bin capacity, radio/tape facilities, driver specific monitoring devices and mobile telephones. More importantly, since they do not comply with ADR 58 and Schedule F, they may not be used as buses. Equally, the series of photographs of a vehicle used typically for a route service and school bus service which were provided by way of comparison [Exhibit 14] are unarguably buses. They comply with ADR 58 and Schedule F where the coaches I inspected do not.

Nowra Coaches has inherited some special service contracts which depart somewhat from the general position for long distance travelling arrangements. One contract which Norwa Coaches has with the New South Wales Department of Transport, in particular, takes passengers from Nowra to Eden with regular set downs along the way, fares paid and subsidies given, ie akin to a bus service. It exists no doubt because the rail service for the south coast ends at Bomaderry. But that is an exception to the general rule and should not be regarded as setting any pattern for me to follow in these compulsory conference proceedings.

The evidence before me in these compulsory conference proceedings suggests that more recent developments in design has produced a vehicle which may effectively be used as a bus or a coach and the distinction between the two types of vehicles is becoming more obscure. The type of vehicles being used by Baxters is a case in point. In that respect Mr Hatcher provided as an exhibit a recent publication of the BCA [Exhibit 2] which spoke of a new "Starliner" vehicle being introduced into service which an article in the publication described as:

"...a very good fit when it comes to demanding quality bus-type work requiring a coach image..."

That may be a matter for the bus and coach industry to address elsewhere in the proper case. As Mr Ward suggested in his submissions, it is not my task in these proceedings to deal with the bus and coach industry in general in this State but only insofar as it affects the operations of Nowra Coaches and the type of vehicles in question in these compulsory conference proceedings which I have already clearly identified were coaches.

That having been said, a "bus" is defined in the 1990 Passenger Transport Act as meaning:

"...a motor vehicle which seats more than eight adult persons, and includes a vehicle of any class prescribed by the regulations for the purposes of this definition..."

Mr Hatcher also provided as an exhibit in the compulsory conference proceedings [Exhibit 1] a dictionary definition of a bus - "...a vehicle with a long body equipped with seats for passengers, usually operating within a scheduled service..." and a coach - "...a bus, especially a single-decker, used for long distances or for sight-seeing..." - ie a "bus" is the generic term of all relevant public conveyances and a "coach" is a type of bus.

To my mind, the State bus drivers award and the State coach drivers award reflect that type of approach. It seems to me that the State bus drivers award remains the principal award and the State coach drivers award flows out of it and to some extent is dependent upon it, ie a bus is a general description of a vehicle used for the transport of all passengers and a coach is a type of bus. Clause 40, Area, Incidence and Duration, of the State bus drivers award makes that position clear when it indicates that the latter State award shall apply:

"...to all motor bus drivers and conductors, other than regular drivers of tourist, parlour and service coaches or cars in the State..."

Clause 32, Area, Incidence and Duration, of the State coach drivers award picks those excluded employees up.

Nevertheless, Mr Ward disputed that claim. He suggested that there were, in fact, three options for me to consider: (i) the State bus drivers award, (ii) the State coach drivers award, or (iii) no State award at all. His argument is that if I were to conclude that the coaches in question were not covered by the State coach drivers award, they may not necessarily be covered by the State bus drivers award by default but may be State award free. His argument describes a common fallacy that is best expressed in the following manner: all dogs have four legs; all cats have four legs; therefore all cats are dogs. In this case, Mr Hatcher's claim, in its simplest form, is that all buses are passenger vehicles; a coach is a passenger vehicle; therefore a coach is a bus.

There is some logic to Mr Ward's argument in that respect but, in my opinion, it does not follow the actual scheme of the two State awards. I accept the proposition advanced by Mr Hatcher that, for the purpose of this exercise if the vehicles in question are not covered by the State coach drivers award, then they must be regarded as "buses" and be covered by the State bus drivers award.

The question then is whether the Nowra Coach vehicles are tourist, parlour or service coaches because that is what the State coach drivers award is confined to cover. I am not assisted by any formal definition of those terms, either in the State coach award or elsewhere, and must again rely on what is commonly accepted throughout the bus industry - not the most reliable foundation for a proper assessment but the best I can do in the circumstances, viz:

(i) a tourist coach is self-explanatory: it is a bus used to drive tourists, ie ordinarily those passengers who are travellers for pleasure as a group on a regular, pre-determined route;

(ii) a parlour coach is a type of bus with wide windows to permit panoramic views and comfortable accommodation for passengers, usually tourists; and

(iii) a service coach is a bus used primarily for long distance travel, ordinarily with one pick up and set down point, ie from Sydney to Melbourne.

It is generally accepted by Mr Hatcher and Mr Ward that the Nowra Coach vehicles are neither properly categorised as tourist coaches nor parlour coaches. But are those coaches service coaches?

Historically, it appears that the term service coaches has chiefly concerned passenger vehicles used in long distance travel, with one pick up and set down point. That is not what occurs with the operations of Nowra Coaches where, because of the live manifest, there may be frequent stops. There is some suggestion that long distance services in country regions of this State have now largely disappeared and been replaced by what Mr Macdonald claimed in his evidence was a "feeder service" for the rail network. But the Nowra Coaches operations are a separate activity entirely.

Mr Hatcher submitted that I should read the description of service coaches narrowly and, put simply, the operations of Nowra Coaches under question in these compulsory conference proceedings would fall outside that description and would not have been in contemplation by the parties when they made the State award. He buttressed his argument with the decision of the Full Bench of the former State Industrial Commission (Webb, Ferguson and De Baun JJ) in the Race Course Totalisers Employees Association Case (1948) AR 43 and the decision of Curlewis J in Wills v. Hartland (1917) AR 410 at p.412 to which their Honours referred with approval (at p.47), viz:

"...Let us stop for a moment to consider what really takes place on the hearing of an application for an award. The applicants put before the Board a statement of the work done by the various classes for whom they desire wages and conditions fixed. The Board makes an award for the classes to which its attention is drawn. I am now asked to hold that a Board must be deemed to have foreseen every contingency that can ever arise, and to have prescribed that every one who cannot be shown to be something else is to be deemed to be a journeyman. Every award is a bed of Procrustes, into which every employee is to be fitted, however manifest it may be that the case of such an employee could never have been considered by the Board..."

It is Mr Hatcher's submission that the classification of service coach does not comfortably fit the type of work performed by the Nowra Coach drivers and, accordingly, they should not be placed in the State coach award. But if the State coach drivers award may be a bed of Procrustes for the Nowra Coach drivers, then so would be the State bus drivers award, in my opinion.

Mr Ward submitted that I should not take a restrictive approach to the interpretation of the State coach drivers award but accept that it must move with the times into areas which may not have been in the contemplation of the parties when they made it. Street J in George A Bond and Company Limited v. McKenzie (1929) AR 498 commented in that respect (at pp.503 and 504) that:

"...now speaking generally, awards are to be interpreted as any other enactment is interpreted. They lay down the law affecting employers and employees in their relations as such, and they have to be obeyed to the same extent as any other statutory enactment. But at the same time, it must be remembered that awards are made for the various industries in the light of the customs and working conditions of each industry, and they frequently result...from an agreement between parties, couched in terms intelligible to themselves but often framed without that careful attention to form and draughtsmanship which one expects to find in an Act of Parliament. I think, therefore, in construing an award, one must always be careful to avoid a too literal adherence to the strict technical meaning of words, and must view the matter broadly, and after giving consideration and weight to every part of the award, endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole of the award..."

State awards are living documents and they must move to reflect changes which occur from time to time and be interpreted in that light. I do not believe that I should confine myself to what may have been the historical position. If I do so, I would still be dealing with horse drawn buses. I therefore do not believe that the words "service coach" in the State coach drivers award should be confined narrowly as Mr Hatcher submitted but given its full and proper meaning.

Mr Ward provided a dictionary definition of the word "service" [Exhibit 9] - "...the supplying or supplier of any article, commodities, activities etc required on demand, the providing or provider of some facility required by the public, as communication or transport...". He indicated that the word "service" therefore suggested only a coach which provided a "service" to passengers. The coaches of Nowra Coaches in question in these compulsory conference provided such a "service". I see no reason why I should reject such an approach which, to my mind, reflects the spirit of the State coach drivers award.

For that reason, I have formed the view that the work before me in these compulsory conference proceedings is appropriately covered by the State coach drivers award and I dismiss the TWU claim on that basis. A direction under S.136(1)(a) therefore becomes unnecessary to give effect to my decision.

P J CONNOR

Commissioner