Allied Express Transport Pty Ltd v Transport Workers’ Union of Australia, Union of Employees (Queensland Branch) [2004] ICQ 9 (2004) 175 QGIG 975

12 March, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 975 INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 – s. 341(1) – appeal against decision of industrial commission Allied Express Transport Pty Ltd AND Transport Workers’ Union of Australia, Union of Employees (Queensland Branch) (No. C72 of 2003) PRESIDENT HALL 24 February 2004 DECISION The Transport Workers’ Union of Australia, Union of Employees (Queensland Branch) (TWU) is an applicant for orders under s. 275 of the Industrial Relations Act 1999. There were 13 respondents to the application. The relief sought against each respondent is a declaration that the members of a class of owner-drivers engaged by the respondents to perform work in the courier and taxi truck industry are employees. Very early on in the history of the application issues arose about the (lack of) particularity in the claim advanced by the TWU against each respondent. By a decision of 1 October 2002 the Full Bench of the Queensland Industrial Relations Commission into whose hands the matter had fallen gave the TWU a further opportunity to particularise its claim against each respondent so as to enable each respondent to know with precision the case which it had to meet. A further amended application was filed on 17 December 2002. It did not satisfy the respondents. Each of the respondents made application pursuant to s. 331(b) to have the claim against it dismissed for lack of particularity. The TWU resisted the claim and filed an application of its own seeking discovery. When the applications came before the Full Bench, the claim for relief against certain of the respondents was dismissed pursuant to s. 331(b). In the case of each respondent whose application under s. 331(b) was unsuccessful an order was made for discovery. One of the respondents against whom an order for discovery was made was Allied Express Transport Pty Ltd (Allied Express). To the extent that the order for discovery requires Allied Express to discover documents about the fees charged to clients, Allied Express now appeals against the order. To succeed the appellant must show that the Commission erred in law or exceeded its jurisdiction. The suggested error of law, which would (I think) if made out also amount to jurisdictional error, is that the Commission discriminated against the appellant. At paragraph 7 of its written outline of submissions the appellant summarised its case as follows: “There were three respondents whom it was said remunerated their courier drivers according to a percentage of the customer charge, namely the fourth respondent (Reliable Couriers Pty Ltd), the eighth respondent (Allied Express Pty Ltd – the present Appellant) and the ninth respondent (Couriers ‘R’ Us (Qld) Pty Ltd) – although in their case it was described as commission. There was a twelfth respondent (Lindcastle Pty Ltd) against whom it was said that the courier drivers were remunerated for a 2 tonne or larger truck at 75% of the customer invoice value. However, the only respondent required to disclose documentation in relation to the client charge is the present Appellant.”. Because the appellant’s case required construction of orders made against other respondents in the proceedings before the Full Bench, the appeal was adjourned to give those respondents the opportunity to seek leave to be heard. In the event the other respondents did seek leave to be heard. I have some doubt whether any construction of the orders made against the applicants for leave to be heard would so directly affect their rights that natural justice requires that the discretion at s. 329(b)(v) be exercised in their favour. However, any construction adopted would plainly be persuasive in future proceedings in the Commission. Leave to be heard may be granted on the basis of fairness, compare Re Ludeke and Others; Ex parte Customs Officers Association of Australia, Fourth Division (1985) 59 ALR 417 at 421 per Gibbs CJ. Although grant of leave under s. 329(b)(v) will always be disruptive of the inter partes nature of an appeal, there are here moderating factors in that those seeking leave are parties to the proceedings below and in that only brief submissions are involved. In all the circumstances the proper course is to grant the other respondents leave to be heard and to take account of their submissions. I turn then to the substantive issues. Notwithstanding the skill with which Mr Watson of counsel has argued the appeal, it seems to me that the simple answer is that the Commission did not discriminate against the appellant. It is certainly true that the order made against the appellant was couched in different language to the orders made against the fourth, ninth and twelfth respondents. There is a reason for that. The Commission was concerned to make orders requiring discovery of documents relating to the matters in issue. The matters in issue vary from respondent to respondent. The Commission chose to meet that difficulty by drafting the order for discovery (in each case) in language “stolen” from the pleadings, especially the particulars, pressed by the TWU against each particular respondent. If one goes to the case pleaded against the appellant it is alleged, inter alia, that “the eighth respondent is to pay the worker at a rate of 65% of the ‘client charge’ ”. Unless one knows, inter alia, the quantum of the client charge one cannot determine whether the earnings of a particular courier exceed or fall below the remuneration the courier would receive under any relevant industrial instrument. The documentation relating to client charges plainly relates to the matters in issue. At paras [41] to [45] of its decision, the Commission dealt with the matter as follows: “Eighth Respondent [41] The Eighth Respondent contends that paragraph 9(a) of Schedule K does not provide any identification of any ‘other industrial instrument’ such that the Eighth Respondent could respond to the allegation of fact contained therein. [42] Schedule K to the Application provides particulars of the Eighth Respondent’s arrangement with its couriers. The Schedule outlines the following relevant matters: • the contracts are in writing having been made on or about the date which each contract bears; • the terms of the contracts are in all material respects the same as those set out in the document entitled ‘Agreement between Allied Transport Express Pty Ltd and the Contract Carrier’ which is Attachment ‘HW7’; • the material terms of the contracts are that the couriers are paid at a rate of 65% of the ‘client charge’, the couriers provide services in accordance with the directions for performance of the work as set out in the contracts, the couriers are to have, at the couriers’ expense, the insurances set out in the contracts, the couriers are subject to the restraint of trade set out in the contracts, the Eighth Respondent may terminate the contracts without notice in certain circumstances and in other circumstances either party may terminate the contracts on 7 days’ notice; and • the ‘client charge’ is an amount set by the Eighth Respondent from time to time. [43] In our view there is a sufficient particularisation of the case against the Eighth Respondent to enable it to know basically the case against it. -- 1 of 3 -- 976 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 12 March, 2004 [44] We order the Eighth Respondent to discover to the TWU the following documents: • the version of ‘HW7’ that has been supplied to current couriers or the current documentation which outlines the matters covered by ‘HW7’; • any documentation evidencing those terms and conditions of current couriers outlined in Schedule K; and • any documentation evidencing the ‘client charge’ in respect of current couriers. [45] To the extent that the TWU has not complied with s. 70(2) of the Rules insofar as the Eighth Respondent is concerned we will waive compliance with the Rule.”. The claim pleaded against the fourth respondent was, inter alia, that a material term of the contract (partly oral and partly written) was that “the owner- driver is paid 68.5% of the ‘customer charge’ for each job completed in a satisfactory manner.” To determine whether the earnings of an owner-driver exceed or fall below the remuneration which the owner-driver would receive if remunerated under the applicable industrial instrument, it is necessary to know the “customer charge”. The Full Bench was entirely ignorant of what documents might exist which related to that issue. At paras [24] to [26] the Commission dealt with the matter of discovery by the fourth respondent as follows: “[24] Schedule G to the Application provides particulars of the Fourth Respondent’s arrangements with its couriers. The Schedule outlines the following relevant matters: • the contracts are partly oral and partly written; • to the extent that the contracts are partly written, the terms are contained in Attachment ‘HW2’. ‘HW2’ is a detailed document and has a number of Schedules attached to it; • to the extent that the contracts are partly oral they consist of conversations between the couriers and Jamie Sienwerts or Terry McGarry as agents for the Fourth Respondent; • the conversations constituting the contract took place on a date that was shortly prior to the date when the respective couriers first commenced to provide courier services or on the date that they commenced to provide courier services; and • the material terms of the contract are that the courier is paid 68.5% of the ‘customer charge’ for each job completed in a satisfactory manner, the courier is required to supply a vehicle, the courier is to have a two-way radio installed for which the courier pays a sum of money per week to the Fourth Respondent, the courier is to pay tax on any payments made by the Fourth Respondent, the courier is responsible for any superannuation, workers’ compensation insurance and any other insurance in respect of owning and operating the vehicle, the courier pays for the installation and ‘deinstallation’ of radio data equipment and for shirts in terms set out in ‘HW3’, the courier performs the contract in accordance with the operating procedures set out in ‘HW3’, the courier is to have ‘Goods in Transit’ insurance which insurance is available to the courier through Elders Insurance at an annual premium of $192.50 and in accordance with ‘HW4’ and the courier is paid weekly. [25] In our view there is a sufficient particularisation of the case against the Fourth Respondent to enable it to know basically the case against it and/or the Fourth Respondent is able to ascertain information from the persons identified as having entered into the oral contractual arrangements on behalf of the Fourth Respondent. [26] We order the Fourth Respondent to discover to the TWU the following documents: • the current version of ‘HW2’, ‘HW3’ and ‘HW4’ that is supplied to couriers or the current document which outlines the matters covered by ‘HW2’, ‘HW3’ and ‘HW4’; and • all documentation evidencing the current remuneration received by couriers. [27] To the extent that the TWU has not complied with s. 70(2) of the Rules insofar as the Fourth Respondent is concerned we will waive compliance with the Rule.”. It is unnecessary to go to the directions about discovery given to the ninth and the twelfth respondent in order to provide further examples of the same point. It must be remembered that the discretion vested by s. 326(f) is a discretion reposed in the Full Bench dealing with the s. 275 application. It may well be that a Full Bench differently constituted would have preferred to sculpt a generic order directed to all respondents. But it is in the nature of a discretionary power that opinions may differ as to its exercise. A discretionary power allows some measure of latitude in decision making. I can see nothing in the course adopted by the Full Bench to bring its decision within the principles applicable to appeals against the exercise of discretion which are still well summarised in House v. The King (1936) 55 CLR 499 at 504 to 505 per Evatt, McTiernan and Dixon JJ. I reject the submission that whatever noble intention the Full Bench might have entertained, the orders actually made were discriminatory, arbitrary, capricious or unjust. The argument focuses on the decision of the Full Bench, now reported at 174 QGIG 123, and seeks to ascertain the content of the order made against each respondent by contrasting the language in which it is cast with the language in which orders made against other respondents are structured. Once the pleadings pressed against any particular respondent and the decision of the Commission are taken into account, an entirely different picture emerges. And frankly, I consider in the case of any particular respondent the starting point is the order and the relevant schedule in the pleadings. I accept that in the case of some respondents, and Mr Reidy who appears for the TWU appears to concede that in the case of the twelfth respondent there may be deficiency in the case of owner-drivers of light utility trucks under 2 tonnes and that the orders made against a particular respondent may not flush out the documentation between the respondent and the clients, a consequence may be that one cannot make sense of the terms of conditions upon which owner-drivers are engaged. But the Full Bench considered that eventuality, and in an exchange with Mr Reidy were told that any such problem would be met by further application. The transcript for 8 May 2003 at p. 84-85 records: “DEPUTY PRESIDENT BLOOMFIELD: That payment schedule might need to be provided as well as the rates. Because if you look at the document my colleague took you to a moment ago, HW6, it talks about the piecework rate and a general work rate being a certain percentage of the invoice value. So, unless you know what the invoice value is, you’ve got no means of establishing whether the contractor has been paid rates which might equate to the award or not. MR REIDY: The only answer I can make to that very relevant and practical point is that it may all come out in the first exercise or become patently clear in the first exercise, that’s not to say that it won’t and that a further application might need to be made. Or that the parties can negotiate between themselves to obviate the need for an application to resolve it. And of course, there’s another way to proceed. If we thought that was advisable, and that was that we could frame a set of interrogatories based on those documents and seek an order from the Commission to deliver those interrogatories because there is the power to do so.”. -- 2 of 3 -- 12 March, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 977 That exchange could only have emboldened the Full Bench. If in the end result only the appellant discovers documents going to its relationship with its clients and if such documents prove to be material in the case of other respondents, omission by the TWU to do anything about the issue may create discrimination and prejudice. In such a situation the appellant is free to approach the Full Bench. I accept that if the Full Bench had discriminated against the appellant in the way alleged, it would have been necessary for the Full Bench to give reasons. But the reasons for the decisions actually made are sufficiently disclosed. I dismiss the appeal. I reserve all questions of costs. Dated 24 February 2004. D.R. HALL, President. Appearances: Mr K. Watson, directly instructed, for the appellant. Mr S. Reidy of Carne Reidy Herd Lawyers, for the respondent. Mr A. Horneman-Wren, for all remaining respondents to matter B67 of 2002. -- 3 of 3 --