Transport Workers Union of New South Wales v Grays Logistics Pty Ltd [2009] NSWIRComm 1029 (21 July 2009)

Last Updated: 30 July 2009

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION :
Transport Workers Union of New South Wales v Grays Logistics Pty Ltd [2009] NSWIRComm 1029



FILE NUMBER(S):
320

HEARING DATE(S):
17/07/09

DATE OF JUDGMENT:
21 July 2009

PARTIES:
APPLICANT
Transport Workers Union of New South Wales

RESPONDENT
Grays Logistics Pty Ltd

CORAM:
Macdonald C


CATCHWORDS: Notification pursuant to s332 and s380 by Union - dispute pursuant to s332 re alleged underpayments by principal contractor to a certain contract carrier engaged by the principal contractor - Union also filed s380 underpayment claim for the contract carrier - two compulsory conferences convened but principal contractor did not attend compulsory conferences - Hearing set down for underpayment claim - No appearance by principal contractor at Hearing - ex parte Hearing - consideration of natural justice concerning ex parte proceedings - particulars concerning Union's claim set out in claim and Hearing - Orders made in favour of Union's underpayment claim.

LEGAL REPRESENTATIVES

APPLICANT
Mr G Selig
Transport Workers Union

RESPONDENT
No appearance

CASES CITED:
BWIU (NSW Branch) v A Dimascio t/a Dima Homes Pty Ltd (1989) AILR Vol. 31, No 4.

LEGISLATION CITED:
Industrial Relations Act 1996


TEXTS CITED:




JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: MACDONALD C

21 July 2009.

Matter No IRC 320 of 2009

Notification under section 332 and section 380 by Transport Workers' Union of New South Wales of a dispute with Grays Logistics Pty Ltd re: alleged underpayments to contract carrier

DETERMINATION OF PROCEEDINGS

[2009] NSWIRComm 1029

1 The Transport Workers Union of New South Wales ("the Union") lodged an industrial dispute pursuant to section 332 of the Industrial Relations Act 1996 ("the Act") against Grays Logistics Pty Ltd ("the Principal Contractor"). The Union also lodged a section 380 applications for recovery of money against the Principal Contractor. Both notifications were lodged on 11 March 2009.

2 The s332 dispute notification advised that:

(a) The Principal Contactor had engaged a certain contract carrier (Mr Robert Cross), during the period 6 May 2008 to 26 June 2008.

(b) Mr Cross had contacted the Union about his remuneration as he believed he had been underpaid his minimum standards he was entitled to under the Transport Industry (General Carriers) Contract Determination ("the Contract Determination").

(c) A Union officer, Mr Mark Bell, contacted Mr Brett Gray, about this alleged underpayment and a cheque for the underpayment was made out to Mr Cross.

(d) Allegedly that cheque was dishonoured by Mr Gray.

(e) The issue as to alleged underpayments remained outstanding, despite the Union's attempts to resolve the matter with Mr Gray.

3 The dispute was set down for a compulsory conference on 17 March 2009. Mr M Bell, union official, appeared but there was no appearance by the Principal Contractor.

4 The dispute was set down for a further compulsory conference on 8 May 2009. Mr G Selig, union official appeared for the Union but there was no appearance by the Respondent.

5 The Union sought that the s332 and s380 notifications be set down for a Hearing.

A filing program for witness statements and any other evidentiary material was put in place and the Hearing set down for 17 July 2009 at 10.00am.

6 The Union was due to file its material by 5 June but did not do so until 1 July 2009.

7 The Principal Contractor was due to file its material by 3 July 2009. No material was filed by the Principal Contractor.

8 The Hearing took place, as advised, on 17 July 2009. There was no appearance by the Principal Contractor.

CONSIDERATION

The Union's Claim

9 The Union lodged an industrial dispute pursuant to section 332 of the Act against the Principal Contractor. The dispute notification concerns an underpayment claim by the union on behalf of its member, Mr Robert James Cross who was formerly engaged as a contract carrier (within the meaning of section 309) by the Principal Contractor (within the meaning of section 310). The Union also lodged a section 380 application in support of that underpayment claim and sought to pursue that claim pursuant to section 379.

Jurisdiction

10 The Union, being an industrial organisation, is entitled to make an application for an order for a small claim: s380(1) of the Act.

11 The maximum amount that an industrial court may order an employer to pay an employee under a small claims application is currently $20,000 for any one employee: s379(3) of the Act. Although this particular statutory provision refers to "any one employee" (contra "contract carrier"), another provision of the Act extends this small claims jurisdiction for employees to also apply to contract carriers: s343(1)(j).

12 The amount of the small claim being pursued by the Union is an amount less than $20,000.

13 Given the foregoing jurisdictional criteria, the Commission finds it has the jurisdiction to proceed in its deliberation of the Union's claim.

Applicable Industrial Instrument

14 The relevant industrial instrument having application to the remuneration (and other conditions) of Mr Robert James Cross is the Transport Industry (General Carriers) Contract Determination 1984 ("the Contract Determination"). (Vol 235 IG 1611)

Ex Parte Proceedings

15 The Principal Contractor was not represented in any of the proceedings before myself: Compulsory Conference on 17 March 2009; Compulsory Conference on 8 May 2009; and the Hearing (17 July 2009).

16 The Commission will now set out all of the material relevant to the issue that the Principal Contractor was aware of these proceedings and in particular, as to the Hearing of 17 July 2009 which was set down for the purpose of considering an underpayment of remuneration claim against the Principal Contractor.

17 The Commission was provided with an affidavit and oral evidence that the Principal Contractor was aware of the Union's underpayment claim against it. The affidavit of Mr Nicholas McIntosh (Union official) stated that the Union filed its dispute notification (section 332) and its accompanying underpayment claim (section 380), on 11 March 2009.

18 The dispute notification was set down for a Compulsory Conference on 17 March 2009. The Union was represented by Mr M Bell. There was no appearance on behalf of the Principal Contractor.

19 At the Hearing, Mr Nicholas McIntosh gave evidence (Exhibit 2 - Affidavit) of a telephone conversation he had with a Mr Brett Gray on 18 March 2009 - being the next day after the listing of the Compulsory Conference.

20 According to Mr McIntosh's uncontested evidence, the thrust of the telephone conversation was that Mr Brett Gray said he was not a Director or Secretary of Grays Logistics (the Principal Contractor) and that the "company no longer exists and has no money anyway". His witness statement also records that Mr Brett Gray said that he received a letter from Mr McIntosh "regarding a Robert Cross and underpayment." This witness statement also records Mr McIntosh as responding to the foregoing, that "we didn't have a fax number so we sent it to the only address we had for Grays Logistics"

21 There are some important observations to be made about this telephone conversation. Firstly, it shows that the Principal Contractor was aware of the dispute notification and the Union's remuneration claim on behalf of its member Mr Robert Cross. Secondly, it shows that Mr Brett Gray had knowledge of the Principal Contractor's financial position and gave an opinion about that financial position.

Thirdly, it shows that the Principal Contractor could be located at a particular address site (as shown on the dispute notification):

Grays Logistics Pty Ltd

9 Palmyra Avenue

Lethbridge Park 2770

This was the address shown on the dispute notification and the address to which the Commission addressed all of its communications as to proceedings before the Commission.

22 Mr McIntosh's witness statement also records that he carried out a company search on the Australian Securities & Investments Commission (ASIC”) website (Exhibit 2 - Annexure NM2). That annexure/website extract listed the Principal Contractor as being "REGISTERED" (as of 18 March 2009). The Director and Secretary is given as JOANNE MARY GRAY. The current Members (and shareholders) of the Principal Contractor are given as BRETT ANDREW GRAY and JOANNE MARY GRAY.

23 The next listing of this matter was for a Compulsory Conference on 8 May 2009. Mr G Selig appeared for the Union. There was no appearance for the Principal Contractor.

24 During that Compulsory Conference, Mr Selig provided a letter to the Commission, being on the Union's letterhead and dated 5 May 2009. (This letter became Exhibit 3 in today's Hearing). The letter was addressed to "The Proper Officer" at the same address as given above. The Commission was also provided with a Registered Post Number slip (Exhibit 4) as proof of delivery of the letter.

25 The letter of 5 May advised the Principal Contractor of the 8 May Compulsory Conference listing. It also stated that if the Principal Contractor did not attend that proceeding, (for the purpose of conciliation), then the Union would ask the Commission to set the matter down for a Hearing (in the absence of the Principal Contractor) and seek an order against the Principal Contractor for the underpayment claim.

26 The Commission had also notified the Principal Contractor (Attention Joanne Gray) of the 8 May Compulsory Conference at the address given above.

27 The Commission programmed the Union's dispute notification and underpayment claim for a Hearing, arising out of the Compulsory Conference proceeding.

28 By letter of 11 May 2009, the Commission notified Ms Joanne Gray of the Principal Contractor of the filing program for evidentiary material and the Hearing date of 17 July 2009. This letter was sent to the address given above. This letter was not returned to the Commission as "Return to Sender".

29 The Commission did not receive any evidentiary material in respect of the Hearing from the Principal Contractor. There was no communication from any person on behalf of the Principal Contractor.

30 The Hearing was set down for a 10.00 am start on Friday, 17 July. The Commission intentionally deferred the starting of the Hearing, just in case the representative(s) for the Principal Contractor was delayed. No appearance on behalf of the Principal Contractor was forthcoming, whatsoever.

31 The Commission has set out the forgoing chronology of events, in order to satisfy itself that the Principal Contractor was aware of the proceedings before the Commission. The foregoing chronology establishes that the Principal Contractor was aware of the proceedings (including the particulars of the small claim) initiated by the Union when Mr Brett Gray contacted the Union by telephone on 18 March, 2009. That telephone call also established that the address (given above) was the correct address for communicating with the Principal Contractor. All correspondence from the Union and the Commission alerting the Principal Contractor to the second Compulsory Conference and the Hearing (including notification of the Hearing proceeding in the absence of the Principal Contractor) was sent to that address.

32 The Commission is accordingly satisfied that natural justice has been afforded to the Principal Contractor, who was aware of all stages of the proceedings, and the particulars of the Union's claim: BWIU (NSW Branch) and A Dimascio t/a Dima Homes Pty Ltd (1989) AILR Vol 31, No. 4.

The Particulars of the Union's Claim

33 The Union's dispute notification (section 332), had attached to it the Application For Recovery Of Money claim (section 380). The latter document set out the particulars of the remuneration claim under Schedule A.

34 At the Hearing, the Union amended those particulars as to the quantum being claimed. The actual conditions of engagement (as found in the Contract Determination) that gave rise to the remuneration claim remained the same.

35 Those conditions of engagement and the quantum claimed for each, is set out below (as set out in Ex. 1, - RC1 of the witness statement of Robert James Cross and Schedule A of the section 380 claim form). Schedule A also sets out the reference to the relevant clause in the Contract Determination and which clause is relevant for underpinning the underpayment claim.

(a) Hourly Rate Entitlement

The unpaid hours worked by Mr Cross total 398 hours. The hourly rate set out in the Contract Determination is $22.72.

The hourly rate entitlement claimed quantifies to $9,042.56.

(b) Kilometre Rate Entitlement

The unpaid kilometres travelled by Robert Cross total 7009 km. The Contract Determination sets out a kilometre rate of $0.5467 cents per km.

The kilometre rate entitlement claimed quantifies to $3,831.82.

(c) GST Entitlement

The Transport Industry (GST Protocol) Contract Determination creates an entitlement to GST rates based upon the hourly and kilometre rates.

The GST entitlement claimed (on those two other entitlements) quantifies to $1,287.44.

(d) Fuel Rebate Entitlement

The fuel rebate fuel price entitlement is based on a surcharge of 2.9 cents per kilometre.

The fuel price surcharge entitlement claimed on 7009 km travelled quantifies to $203.26.

(e) Rope and Gear Allowance

Mr Cross provided his own rope and gear and is therefore entitled to a rope and gear allowance of $3.42 per day. He was engaged for 33 full days and two part days by the Principal Contractor. The rope and gear allowance entitlement claimed quantifies to $112.80.

36 The foregoing items quantify to a total entitlement claim of $14,477.94 (see Ex. 1 - Annex. RC1). However, the Principal Contractor had provided some remuneration to Mr Robert Cross, being $3,004.00, inclusive of GST. (Ex. 1 - para 4). Accordingly, that latter amount of money needs to be deducted from the total claim of $14,477.94.

As a result, the quantum of entitlement sought is $10,673.94, inclusive of GST. It is this amount for which the Union seeks an Order in favour of Mr Robert Cross.

37 The Union has also requested that, if an Order is made, then such Order is sought as a matter of urgency. The Union advised that it had carried out a further ASIC website search concerning the Principal Contractor. That search (Ex. 5) listed (under the heading of "Document Details"), the following entry: 13 July 2009 - Notification of Filing of Application For Winding Up Order.

CONCLUSION

38 The Union filed a dispute notification (s332) and recovery of money claim (s380) on behalf of Mr Robert James Cross (contract carrier), against Grays Logistics Pty Ltd (the Principal Contractor).

39 The Commission is satisfied that the Union has met the jurisdictional requirements in order to bring the small claim against the Principal Contractor, based on the relevant industrial instrument.

40 The Commission is satisfied that there has been no denial of natural justice towards the Principal Contractor, given that there was no appearance by the Principal Contractor in any of the proceedings.

41 The Union provided evidence (oral and documentary) in support of its underpayment claim on behalf of Mr Robert James Cross against the Principal Contractor.

42 Given the foregoing, the Commission now makes the following Order:

O R D E R

1. Grays Logistics Pty Ltd shall pay to Mr Robert James Cross, the sum of $10,673.94 gross, within twenty-one days from the date of this Determination of Proceedings.

2. The Order shall take effect on and from Tuesday, 21 July, 2009.

A Macdonald

Commissioner

LAST UPDATED:
21 July 2009