FCL Interstate Transport Services Pty Ltd v Mould [2004] ICQ 42 (2004) 176 QGIG 492

492 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 16 July, 2004 ########################################################################################################################## # INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 – s. 341(1) – appeal against decision of industrial commission FCL Interstate Transport Services Pty Ltd AND Jamie Mould (No. C16 of 2004) PRESIDENT HALL 1 July 2004 DECISION This is an appeal against a decision of the Queensland Industrial Relations Commission now reported at 175 QGIG 1057. The Commission found that a contract between the appellant and the respondent was an unfair contract within the meaning of s. 276 of the Industrial Relations Act 1999. The basis of the conclusion that the contract was unfair was a finding that the total remuneration received by the respondent was less than the sum of money which the respondent would have received if he had performed the work under the Transport Distribution and Courier Industry Award – Southern Division (State). Having determined the contract to be unfair, the Commission exercised the discretion to declare the contract to be void (save for the provisions which entitled the respondent to payment) and awarded the respondent a global amount for $58,000 as compensation. It is the contention of the appellant that the Commission erred in law both in finding that the contract was unfair and in assessing the quantum of compensation. It is common ground that it is a consequence of the definition of “unfair contract” at s. 276(7) that a contract is unfair if it: “…provides, or has provided, a total remuneration less than that which a person performing the work as an employee would receive under an industrial instrument …”. It is also common ground that the relevant industrial instrument is the Transport Distribution and Courier Industry Award – Southern Division (State) (the Award). The issue is whether the Commission applied the correct owner/driver rate. In my view the Commission did apply the correct owner/driver rate. Owner/drivers receive a reward for labour and a vehicle allowance. The Award sets vehicle allowances which vary according to the type of vehicle used. The purpose of the scheme is to ensure that owner/drivers are adequately compensated for the provision of the vehicle. The rate applied by the Commission was the rate which described the lorry provided by the respondent. In so applying the Award to the facts the Commission gave the Award the construction which best achieved its purpose, compare s. 14A of the Acts Interpretation Act 1954 made applicable by s. 14(1) of the Statutory Instruments Act 1992. The lower rate upon which the respondent relies is a safety net provision to meet the case of a vehicle not otherwise listed. In attacking the Commission’s global amount of $58,000 the appellant challenges both the Commission’s finding about the discrepancy between the amount paid and what would have been paid under the Award, and challenges also the way in which the Commission took into account certain financial and lifestyle benefits said to flow from the respondent’s status as an independent contractor. As to the matter of discrepancy between the contract figure and the Award figure, notwithstanding the criticisms levelled at the decision, the meaning of the language clearly emerges. The Commission rejected a submission that the hypothetical employment under the Award was employment of a casual nature, and held that the discrepancy was $74,857. Though amendments were made to calculations during the course of the trial, the discrepancy found by the Commission was the figure ultimately identified in submissions as the discrepancy if the hypothetical employment was not of a casual nature. The matter of discounting is rather more difficult. To begin with the appellant takes the point that the respondent’s expenses in connection with the vehicle were less than postulated by the Award. The impertinent answer is that the expenses would have been less than the Award allowance if the respondent had been employed. The real answer is that the Award rate is the statutory comparator in determination of the issue whether the contract is an unfair contract. The starting point in formulating a remedial order under s. 276(5) is inevitably the basis for the earlier finding that the contract is an “unfair contract”. The finding that the contract is an “unfair contract” within s. 276(7)(c) is no more a percussor to a moving feast of an inquiry into “real unfairness” as a preliminary to fixing an amount under s. 276(5). The next criticism is that the Commission failed to identify with any measure of precision the weight given to each of the financial and lifestyle advantages in discounting by $16,857. The difficulty which I have with the submission is that the factors to be taken into account cannot be translated into money amounts with any measure of precision. (Indeed, at first instance the parties did not seek to be precise). For example, the Commission was required to (and did) take into account that the respondent enjoyed a measure of freedom as to hours worked which he would not have enjoyed as an employee. Put aside the consideration that because the appellant assigned jobs to the respondent and must have had some idea about the time which performance of each job would take and therefore had some control over the hours worked by the respondent, the importance which individuals will attribute to control over their hours of work will vary enormously. Value decisions will commonly arise under s. 276(5). Doubtless, it is for that very reason that s. 276(5) vests the Commission with power to “…make an order it considers appropriate about payment of an amount for a contract amended or declared void”. To impose upon the Commission a duty to award the “appropriate amount” would be to impose an unenviable task. The value judgements involved in setting an amount under s. 276(5) are such that objectivity had to give way to the Commission’s own opinion, compare Australian Heritage Commission v Mount Isa Mines Limited (1997) 187 CLR 297 at 304. -- 1 of 2 -- 16 July, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 493 In those circumstances, it seems to me that the Commission was correct to identify the factors which it had taken into account in discounting the figure of $74,857 and did not err in failing to attempt to descend into mathematical calculation. It also seems to me that the factors involved lend themselves to differences of opinion which, within a range, will be both legitimate and reasonable. In such circumstances this Court should not substitute its opinion for the opinion of the Commission merely because it disagrees with the Commission’s conclusion. The Court should interfere only in accordance with the principles House v The King (1936) 55 CLR 499 at 504 to 505 per Dixon, Evatt and McTiernan JJ: compare Norbis v Norbis (1986) 161 CLR 513 at 518 and Macauslane v Fisher and Paykel Finance Pty Ltd [2003] 1QdR 503 at 513 per Holmes J (with whom the other members of the Court of Appeal agreed). Here, the decision to discount by $16,857 is not so “unreasonable or plainly unjust” as to suggest an undiscoverable error by the Commission in forming the requisite opinion under s. 276(5). I dismiss the appeal. I reserve all questions of costs. Dated 30 June 2004. D. R. HALL, President. Released: 1 July 2004 Appearances: Mr A.A.J. Horneman-Wren instructed by Blake Dawson Waldron for the Appellant. Mr P.D.T. Applegarth SC, instructed by Carne Reidy Herd for the Respondent. -- 2 of 2 --