Rooth v S. Brady Industries Pty Ltd - [2014] FCCA 1435

FEDERAL CIRCUIT COURT OF AUSTRALIA

ROOTH v S. BRADY INDUSTRIES PTY LTD

[2014] FCCA 1435

Catchwords:
INDUSTRIAL LAW – Small claim raising point of construction in Road Transport Awards – whether transportation of unladen vehicles can be transport of goods – whether lacuna in the Road Transport Awards.

Legislation:

Fair Work Act 2009, s.548

Road Transport and Distribution Award 2010, cls.3, 4.1, 15, 16(1)(b), 16(1)(c), 16(1)(d), 16(2)(b)

Road Transport (Long Distance Operations) Award 2010

TWU v Syddeck Pty Ltd t/as Royale Limousines [2003] NSWCIMC 11
Award Modernisation Statement of the Full Bench [2009] AIRCFB 50
Award Modernisation- Decision of the Full Bench [2009] AIRCFB 345

Applicant:

PAUL ROOTH

Respondent:

S. BRADY INDUSTRIES PTY LTD TRADING AS VEHICLE RELOCATORS

File Number:

MLG 211 of 2014

Judgment of:

Judge Burchardt

Hearing date:

5 May 2014

Date of Last Submission:

5 May 2014

Delivered at:

Melbourne

Delivered on:

10 July 2014

REPRESENTATION

The Applicant:

In Person

Counsel for the Respondent:

Mr Scott

Solicitors for the Respondent:

John F. Morrissey & Company Lawyers

ORDERS

The matter be listed for further hearing in light of the matters raised by this judgment.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 211 of 2014

PAUL ROOTH

Applicant

And

S. BRADY INDUSTRIES PTY LTD TRADING AS VEHICLE RELOCATORS

Respondent

REASONS FOR JUDGMENT

This matter commenced by way of a small claim application filed on 10 February 2014. The applicant sought payment of $15,000 allegedly underpaid as wages. In an affidavit also filed on 10 February 2014, Mr Rooth appended a report from the Fair Work Ombudsman dated 31 July 2013, payroll advices for the period from 1 September 2010 until 31 March 2013, together with a handwritten schedule of calculations suggesting an underpayment of $22,471.
The Ombudsman’s report makes a number of relevant observations. In particular, the Ombudsman thought that both The Road Transport and Distribution Award 2010 (“the RTD Award”) and The Road Transport (Long Distance Operations) Award 2010 (“the LDO Award”) were capable of covering Mr Rooth’s employment at different times, depending upon the nature of the works that Mr Rooth was performing.
The Ombudsman noted that the rates of pay paid to Mr Rooth as a casual employee were, on any view, lower than those prescribed by the RTD Award and the rates prescribed per kilometre by the LDO Award. The Ombudsman recommended that the respondent review its records and rectify any underpayments by paying Mr Rooth the applicable hourly or kilometre rate of pay according to the distance travelled or type of vehicle driven for each job performed by Mr Rooth, minus any amounts already paid to Mr Rooth and a deduction of overnight allowances paid to him (Mr Rooth claimed to have been paid $35 per overnight absence for long distance work).
The Court is required, pursuant to s.548 of the Fair Work Act 2009 (“FW Act”), to deal with this matter in an informal and expeditious way without regard to the rules of evidence. However, in the particular circumstances of this case, it will be necessary to make what in effect is a preliminary declaration and to then consider the future conduct of the matter.
The respondent’s Response raises what in effect is a jurisdictional issue. It is submitted that the Fair Work Ombudsman is wrong to conclude that either the RTD or the LDO Award apply. The reasons for this are essentially set out in attachment “B” to the affidavit of Christopher Lowe, the solicitor for the respondent, filed 2 May 2014. Attachment “B” is a letter to the Fair Work Ombudsman from Mr Morrissey and states, inter alia:
“My client has submitted that their reading of that definition is that ‘transport’ by its very nature involves the use of a carrier, in this case a vehicle. I must say that I am in agreement with this reasoning. Therefore, it is difficult to accept or understand how the carrier in this case can in fact also represent the goods being transported.”
Mr Morrissey also observed:
“I have reviewed Clause 16.1(b) (c) and (d) of the Award under the heading Allowances. You will note that all of those potential allowances appear to envisage that some type of good (not including a vehicle) is intended to be transported.”
So far as the applicability of the LDO Award is concerned, having set out the definition of Long Distance Operation, Mr Morrissey said:
“In this instance, I would respectfully submit that this classification has no relevance to the operations of Vehicle Relocators as the vehicle is never involved in moving livestock or materials.”
The letter goes on to note that if the respondent adopted the Fair Work Ombudsman’s proposed methodology:
“…it would place an immense burden on payroll, requiring very detailed calculations for every job undertaken. My client is doubtful that this modus operandi would be at all practical.”
The respondent also filed, on 5 May 2014, an affidavit by Stuart Anthony Brady, who is clearly the moving force of the respondent as its sole director, and has been in the industry for nearly 25 years. The respondent employs 42 casual drivers and two office staff. Mr Brady deposed at paragraph 6:
“6. 99% of the vehicles we relocate are unregistered which means we have to drive them with a trader’s plate attached. Part of the conditions of use for a trade plate is that you are not allowed to carry any load as stated in paragraph 3 of the NSW Roads & Maritime Services Trader’s Plate Conditions of Use. …”
I note that Mr Brady deposed at paragraph 14:
“14. Each successful applicant before starting employment receives a letter of employment stating what they will be paid both in local and interstate work and how it works in relation to pay breakdown. To acknowledge their acceptance, they will sign the letter and return it to the office before commencing work. I do not put any pressure on the employee to sign the letter. The employee will take that letter home as well as our employment pack and read through them at their own leisure and then return it once they are happy. Annexed to this affidavit and marked “B” is a copy of the letter of employment signed by the Applicant and myself on 22 September 2010.”
When the matter came before the Court, the Court permitted counsel to appear on behalf of the respondent. That is not the Court’s ordinary practice, bearing in mind the terms of the legislation and the nature of the small claims list. In this case, however, bearing in mind that the respondent is based in Sydney and the matters sought to be raised are matters of law, it seemed appropriate to me to permit, as a matter of simple fairness, the respondent to be represented, even though the applicant was not.
Counsel sought, in essence, to rely upon the written or outline of submissions filed on 2 May 2014. I note the uncontested assertion at paragraph 6 of those written submissions, that:
“The Respondent does not transport any goods or materials, it simply provides drivers to ferry unladen vehicles. The Respondent is engaged in the business of vehicle relocation.”
Having referred to a decision of the chief industrial magistrate in TWU v Syddeck Pty Ltd t/as Royale Limousines [2003] NSWCIMC 11, it was submitted at paragraph 8 of the respondent’s outline of submissions:
“The Respondent is not in the business of, and does not employ drivers of vehicles being engaged in the carriage of goods, merchandise and the like.”
Without doing disservice to the written submissions which were extremely helpful, ultimately, the point made by the respondent boils down to that assessed by Mr Morrissey. The matter is encapsulated at paragraph 21 as follows:
“The coverage applies to the transportation of goods (however described). The modern award talks about the transportation by road of particular items, namely the goods. The transportation occurs by use of a truck or other such vehicle. What is being transported cannot, as a matter of logic, be interpreted to include what is doing the transporting. Both are separate and this is borne out by the phrases “transport by road of goods…” and “transportation by road of all material…”.”
As Counsel pointed out, it was possible that there was simply a lacuna in the Modern Award.
Mr Rooth, in brief oral submissions, pointed out that on any view, something was being transported.
I have, as I was invited to by counsel, obtained copies of the decision of the Chief Industrial Magistrate and of the two decisions of the Industrial Relations Commission referred to in the written submissions. I should say immediately that the decision of the Chief Industrial Magistrate in Syddeck turned on consideration of a different point in a different award. It is of limited, if any, assistance in this instance.
The two statements of the Industrial Relations Commission, which led up to the creation of the awards with which we are now concerned, are of assistance. In the Award Modernisation Statement of the Full Bench [2009] AIRCFB 50, the Full Bench of the Commission relevantly said at [98]-[99]:
“98. The RT&D Modern Award covers the road transport and distribution industry as defined in the exposure draft. The definition is broad and is intended to incorporate the scope of the pre-reform Transport Workers Award 1998 (Transport Workers Award) and NAPSAs operating in each state as the general industry transport award. It also incorporates the transport activities previously covered by freight forwarding, petrol and petroleum products, crude oil and gas and quarried materials awards. These are a subset only of the sectors covered by the exposure draft and the parties should give close consideration to the definition of the industry.
99. We are aware that the definition of the industry does not reproduce the wording in each of the existing scope or incidence clauses in relevant pre-reform awards and NAPSAs. The parties should give consideration to whether there is a need to specifically identify other activities. In this respect, however, we note the breadth of paragraph 3.1(a) of the definition and it may not be necessary to specifically identify the various subcategories of those goods, wares and merchandise, etc.”
At [105], the Full Bench continued:
“The draft RT Long Distance Modern Award is based on the pre-reform Transport Workers (Long Distance Drivers) Award 2000 (LDD Award). We considered the TWU submission that no award for this sector of the transport industry should be issued at this stage. We have decided that it is appropriate that we publish this exposure draft. If any relevant legislation is passed which impacts on the terms and conditions appropriate for such an award that will be taken into consideration.”
In the Award Modernisation- Decision [2009] AIRCFB 345 which the Full Bench brought down in due course following further consideration, the Full Bench relevantly said at [168]:
“We have previously published exposure drafts of each of the awards we now propose to make. We should make a number of comments about issues raised by the parties concerning the exposure drafts and variations of substance that have been made to the drafts. We refer first to be [sic]? RT&D Modern Award. In our statement of 23 January 2009 we said that the definition of the industry should be closely considered by the parties and submissions made as to whether the description was sufficient to encompass the various sectors of the industry that were being incorporated into the award. No party submitted that any additional paragraphs needed to be added to the definition and accordingly it retains paragraphs (a) to (i) however we have made some variations to make it clear that the award relates to the transport of goods etc by road.”
I note the submissions of the respondent about Award interpretation at paragraphs 9-11 of the written submissions as follows:
“9. In interpreting industrial instruments, the High Court of Australia has said there is a need to have regard to not only the text of the particular clause in dispute but also the text and operation of the whole instrument with reference to the industrial and legislative context in which the instrument was made: Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10.
10. In interpreting an industrial instrument, it is permissible to have regard to the history of a clause to understand what is likely to have been intended: Short v FW Hercus Pty Ltd [1993] 40 FCR 511 at 517 to 518.
11. Industrial instruments are to be given their plain and ordinary meaning (City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813).”
I would indicate that those principles are, in my view, unobjectionably expressed and I bear them in mind as I now turn to the Awards themselves. The RTD Award in cl.4.1 (under the heading Coverage) states:
“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 goes on, however, to exclude, inter alia, employees employed under the LDO Award.
The road, transport and distribution industry is defined in cl.3 as:
“(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;”
It is clear that if Mr Rooth’s employment falls under this Award, this is the very broadly expressed clause where it would come in. In a sense, the difference between the parties really turns on the way in which the Court is to construe the words “the transport by road of goods… or anything whatsoever”. The respondent’s argument, as already noted, is that this cannot mean the transport, so to speak, of the transporter itself. Something must be transported other than the transporting vehicle. Although not articulated in these terms, Mr Rooth’s position is that the transport itself is sufficient to attract the operation of this clause. It is certainly true, as Mr Morrissey’s letter asserts, that the allowances prescribed by cl.16.1(b) in a number of instances suggest that allowances envisage some type of good is being transported. By the same token, however, a number of the matters set out in cl.16.2(b) of the copy I have been provided with simply deal with additional allowances by reference to the size of the vehicle.
I appreciate that this matter is susceptible of being argued persuasively both ways, but in the ultimate, I confess I have reached the same conclusion as the Fair Work Ombudsman. The reality is that these vehicles, which are unlicensed vehicles being delivered to their prospective owners, are clearly of themselves goods. They are vehicles which have been bought by the prospective purchaser and which are required to be transported. Their transport on the roads would, in any event, meet the definition of the transport by road of anything whatsoever. While I would certainly accept that in an enormous number of cases, transport by road will involve the transport of something other than the transporting vehicle, in the circumstances of this case, it seems to me quite clear that the vehicles themselves are goods or anything whatsoever, and accordingly, the RTD Award does apply to Mr Rooth’s employment.
The LDO Award, in my opinion, does not apply. The copy of that Award shows that a long distance operation relevantly means circumstances where “the operation involves a vehicle involving livestock or materials, whether in a raw or manufactured state”.
That sentence is differently constructed to that in the RTD Award. It expressly involves a vehicle moving livestock or materials. In this sense, the submission that it cannot include the transporting vehicle is, in my view, correct.
As earlier indicated, this is a small claim that the Court is required to deal with expeditiously and economically. However, the proceeding was conducted very much on the basis of what in effect was a preliminary point. On any view, the respondent has not had the opportunity to undertake the task according to the methodology proposed by the Fair Work Ombudsman.
It might be inferred that the rounded-off total of $15,000 claimed by Mr Rooth in some fashion reflects his total claim (in excess of $22,000) less those matters that the Fair Work Ombudsman suggested should be removed. The very precise nature of the resultant figure, however, suggests this may be something of a guesstimate.
In the circumstances, it would be, in my view, equally unfair to dismiss Mr Rooth’s claim on the footing that he has failed sufficiently to articulate it in circumstances where he has not been challenged, and on the respondent to force payment of a sum they have not had a proper opportunity to consider or challenge.
I will publish these Reasons for Judgment and hear further from the parties as to how this matter should properly be brought to a conclusion.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate:

Date: 10 July 2014