Truck Moves Australia Pty Ltd v Simmonds

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FEDERAL COURT OF AUSTRALIA

Truck Moves Australia Pty Ltd v Simmonds

[2015] FCA 1071

Citation: Truck Moves Australia Pty Ltd v Simmonds [2015] FCA 1071
Parties: TRUCK MOVES AUSTRALIA PTY LTD ACN 103 399 891 v BRIAN SIMMONDS and JOHN ZADER
File number: NSD 1249 of 2014
Judge: RARES J
Date of judgment: 2 October 2015
Catchwords: INDUSTRIAL LAW – principles of construction of modern award made under Fair Work Act 2009 (Cth) – whether employer covered by modern award – whether business of employer within definition of “road transport and distribution industry” in Road Transport and Distribution Award 2010 – whether movement of unladen trucks or other vehicles at request of or for delivery to employer’s customer within meaning of “the transport by road of goods” in cl 3.1 of Award – whether unladen trucks or vehicles moved by road between locations are themselves “goods” that are transported by road – whether infrequent instances of laden trucks being moved by road by employee were ancillary to business of employer
Legislation: Fair Work Act 2009 (Cth)
Workplace Relations Act 1996 (Cth)
Cases cited: Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Rooth v S. Brady Industries Pty Ltd t/as Vehicle Relocators [2014] FCCA 1435 overruled
Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd (2014) 245 IR 449
Date of hearing: 2-3 September 2015
Place: Sydney
Division: FAIR WORK DIVISION
Category: Catchwords
Number of paragraphs: 72
Counsel for the Applicant: Mr Y Shariff
Solicitor for the Applicant: Bartier Perry
Counsel for the First Respondent: Mr M Treherne
Solicitor for the First Respondent: Mark Treherne and Associates
Counsel for the Second Respondent: Mr M Gibian
Solicitor for the Second Respondent: Transport Workers’ Union of Australia

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

FAIR WORK DIVISION

NSD 1249 of 2014
BETWEEN:

TRUCK MOVES AUSTRALIA PTY LTD ACN 103 399 891
Applicant
AND:

BRIAN SIMMONDS
First Respondent

JOHN ZADER
Second Respondent

JUDGE:

RARES J

DATE OF ORDER:

2 OCTOBER 2015

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.It be declared that the applicant’s employment of each respondent was not covered by the Road Transport and Distribution Award 2010 or the Road Transport (Long Distance Operations) Award 2010.

2.It be declared that during the period between 1 January 2010 and the respective dates on which his employment by the applicant terminated, the applicant was required to pay each respondent in accordance with the national minimum wage order as in force from time to time made pursuant to the provisions of the Fair Work Act 2009 (Cth) or at any higher rate actually paid to him.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

FAIR WORK DIVISION

NSD 1249 of…

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Details
Case
[2015] FCA 1071
Decision Date

CaseChat Overview and Summary

Truck Moves Australia Pty Ltd brought this proceeding against two of its former employees, Mr Simmonds and Mr Zader, seeking declarations that the employees were not covered by the Road Transport and Distribution Award 2010 or the Road Transport (Long Distance Operations) Award 2010, and that Truck Moves was required to pay them in accordance with the national minimum wage order during the period between 1 January 2010 and the respective dates on which their employment by Truck Moves terminated. The drivers had complained to the Fair Work Ombudsman that they had been underpaid, claiming that the RTD Award applied to them while they were employees of Truck Moves but that they had not been paid in accordance with that award. The employees argued that the vehicles they moved were goods that were transported by road as a result of that operation. The court was required to decide whether the business of Truck Moves was within the definition of “road transport and distribution industry” in the Road Transport and Distribution Award 2010, and whether the movement of unladen trucks or other vehicles at request of or for delivery to the employer’s customer was within the meaning of “the transport by road of goods” in clause 3.1 of the Award.

The court held that the business of Truck Moves was not within the definition of “road transport and distribution industry” in the Road Transport and Distribution Award 2010. The court found that the employees were not covered by the RTD Award or any other award because the vehicles they moved were not goods being transported by road. The court held that the definition of “goods” in the RTD Award did not include the vehicles moved by Truck Moves, which were being transported for reward as a bailee, not as goods being transported. The court also held that the infrequent instances of laden trucks being moved by road by the employees were ancillary to the business of Truck Moves. The court held that the employees were not covered by the RTD Award or any other award because the movement of unladen trucks or other vehicles at request of or for delivery to the employer’s customer was not within the meaning of “the transport by road of goods” in clause 3.1 of the Award. The court found that the drivers were not engaged in the transport of goods by road, but rather in the transportation of vehicles for reward as a bailee. The court also found that the infrequent instances of laden trucks being moved by road by the employees were ancillary to the business of Truck Moves, and therefore did not bring Truck Moves within the scope of the RTD Award.

The court made the following orders: (1) It was declared that the applicant’s employment of each respondent was not covered by the Road Transport and Distribution Award 2010 or the Road Transport (Long Distance Operations) Award 2010. (2) It was declared that during the period between 1 January 2010 and the respective dates on which his employment by the applicant terminated, the applicant was required to pay each respondent in accordance with the national minimum wage order as in force from time to time made pursuant to the provisions of the Fair Work Act 2009 (Cth) or at any higher rate actually paid to him.

Orders

Orders of the court

1. It be declared that the applicant’s employment of each respondent was not covered by the Road Transport and Distribution Award 2010 or the Road Transport (Long Distance Operations) Award 2010.

2. It be declared that during the period between 1 January 2010 and the respective dates on which his employment by the applicant terminated, the applicant was required to pay each respondent in accordance with the national minimum wage order as in force from time to time made pursuant to the provisions of the Fair Work Act 2009 (Cth) or at any higher rate actually paid to him.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Because cl 4.2 of the RTLDO Award was only inserted after each of the two drivers ceased to be employed by Truck Moves, it is not presently relevant. Clause 4.8 was in the same terms as its counterpart in the RTD Award. Schedule A set out a classification structure based on tonnage capacity or vehicle type.Background Truck Moves brought these proceedings after each of the drivers complained to the Fair Work Ombudsman that they had been underpaid. They had claimed that the RTD Award applied to them while they were employees of Truck Moves but that they had not been paid in accordance with that award. Truck Moves’ sole director and shareholder is Matthew Whitnall. Mr Simmonds worked for Truck Moves between 29 March 2012 and about 11 November 2013 as a casual driver. Mr Zader first commenced employment with Truck Moves on 15 August 2005 as a casual driver when he was based in Sydney. In about 2008, Mr Zader moved to live in Melbourne and continued to drive trucks for Truck Moves, but in around 2009 he had several months break before resuming this work. Then, in May 2011, Mr Zader suffered a heart attack and was unable to work for two and a half months. He said that he last worked for Truck Moves on 25 March 2013 although Mr Whitnall said that his last day was 25 August 2013. It is not necessary to resolve that discrepancy. Truck Moves’ contract of employment under which each of the drivers worked contained the following terms:You are employed on a casual basis. As such, Truck Moves is under no obligation to provide you with any number of shifts, hours or jobs.…These terms and conditions are the written authorisation you require to operate various traders plates in your capacity as a driver working exclusively as directed by Truck Moves … Mr Whitnall explained that Truck Moves’ business predominantly was to ferry commercial vehicles that were brand new, not registered or partially built from importers to wholesalers. Truck Moves took possession, and so became bailee for reward, of the vehicles. Mr Whitnall said that the vehicles did not carry any freight or goods. The vehicles were driven unladen both locally and interstate as the client required. He said that the types of vehicles varied, but they were predominantly unregistered or in a pre-registration state and that, when its drivers drove them, in the majority of cases they fitted trade plates owned by Truck Moves as the vehicles’ number plates. The vehicles could be of any size or type, including rigid vehicles with varying gross vehicle mass (GVM), two or more axle rigid vehicles or larger trucks. Truck Moves also moved passenger cars, such as fleet vehicles between yards or to auctions, or delivered new vehicles and returned with the traded-in vehicles that they replaced, again using trade plates, including where such vehicles were registered. Mr Whitnall understood that under State and Territory laws, a vehicle being driven with trade plates cannot carry freight or a load. Mr Whitnall said that Truck Moves engaged its drivers as casual employees and paid them in accordance with the national minimum wage order made by the Commission under the Act, including in respect of the applicable casual loading.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Next, on 3 April 2009, the Commission published its Decision to make, among others, the two Awards ([2009] AIRCFB 345). The Commission recorded that no party had submitted that any additional paragraphs needed to be added to the definition of the road transport and distribution industry in its exposure draft of the RTD Award, but it stated that ([2009] AIRCFB 345 at [168]-[169], [171]):[168]… 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. We have also adopted the definition of a distribution facility as proposed by the Transport Workers’ Union (TWU) so it is clear that they are facilities which are operated by an employer as part of its road transport business.[169]We have retained the reference in paragraph (a) of the definition of the road transport and distribution industry to the transport of goods etc where that work is ancillary to the principal business, undertaking or industry of the employer …[171]We also gave consideration to a number of other matters. Even though the RT&D Modern Award is an industry award it is clear that the practical effect of the various existing private transport awards it encompasses is that they operate by reference to a structure of types, models and classes of vehicle and, it follows, to the driver of those vehicles thereby having occupational coverage. We note that there are very few transport classifications in the modern awards made to date and it is likely that any transport functions of any significance are carried out by dedicated transport operators. If the transport of goods etc as defined in the RT&D Modern Award is ancillary to an employer’s business but it is carried out by an employee in one of the classifications in the award it should be covered by the award. In this respect we are not persuaded that an employer will loose [sic] the ability to have those drivers, who may be a small number only of its workforce, work hours which the employer’s business requirements dictate. The RT&D Modern Award contains numerous facilitative provisions which relate to matters like hours of work, shifts and spread of hours. (emphasis added) In 2008 and 2009, Mr Whitnall was aware of the ongoing award modernisation process being undertaken by the Commission. He kept himself informed of it but did not involve Truck Moves in it. He said that this was because he did not understand that the modern award would affect matters to cause a change in his belief that Truck Moves’ business and employees were not covered by any award. Mr Whitnall said that, as a result, Truck Moves paid its drivers in accordance with the national minimum wage order and continued to organise and carry on its business on the basis that its drivers were not covered by the RTD Award or any other award.The two drivers’ submissions The two drivers argued that the trucks or other vehicles that Truck Moves ordinarily had its drivers deliver to, or convey for, its customers, were themselves “goods” that were transported by road as a result of that operation, within the meaning of the definition in cl 3.1 of the RTD Award of “road transport and distribution industry”. The two drivers argued that the Commission intended that the RTD Award would have a broad application and relied on the decision of Judge Burchardt in Rooth v S. Brady Industries Pty Ltd t/as Vehicle Relocators [2014] FCCA 1435 who had held that, in respect of a business similar to that of Truck Moves, vehicles were goods for the purposes of the industry definition. They contended that because Truck Moves was a bailee for reward to convey the vehicles to the customer, the vehicles, as the goods bailed, were “goods” moved as freight for the purposes of the definition.

Ratio Decidendi

Legal Principle Established

The two drivers argued that in any event, the fact that Truck Moves, on occasion, had agreed to move loaded trucks for its customers, meant that that work was “ancillary to the principal business” within the meaning of paragraph (a) of the industry definition and so they were covered by the RTD Award.Consideration – principles for construction of modern awards Part 2-3 of the Act prescribes a process for the Commission to follow when it makes a modern award. The process requires the Commission to decide upon how the award will deal with the matters for which such an award may and must provide. The making of a modern award does not involve, as a necessary contextual element, the resolution of an industrial dispute between an individual employer and its employees, or an organisation or organisations representing one or particular employers or employees, or employers or employees in the relevant industry or trade. The Commission’s functions under Pt 2-3 of the Act are unlike those exercised historically by its predecessors in the conciliation and arbitration of industrial disputes, although the Act contemplates that the Commission will have such or similar functions in other circumstances. Rather, under Pt 2-3, the Commission must undertake the task of formulating the terms of a general award that will regulate the relationship of employers and their employees nationally, so as to achieve the modern awards objective in respect of an entire industry or particular persons or classes of persons covered by the award (ss 134, 143). The Act contemplates that a modern award will be made by the Commission under Pt 2-3 in terms that it, as opposed to disputant industrial parties, formulates to regulate identified industrial relationships generally in order to provide a fair and relevant minimum safety net of conditions in accordance with s 134. The function of making a modern award under Pt 2-3 must be exercised by a Full Bench of the Commission (s 616). Siopis, Buchanan and Flick JJ held in Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd (2014) 245 IR 449 at 455 [22] that the test for construing a modern award (indeed, in that case, the RTD Award):is to discern the objective meaning of the words used bearing in mind the context in which they appear and the purpose they are intended to serve. Their Honours noted that principles that had been used in times past to construe awards may be relevant to awards that reflect a form of bargain between agreeing parties and to other statutory processes made under other provisions of the Act, such as enterprise agreements under s 172 (245 IR at 458-461 [39]-[46]), adding (at [46]):However, giving primacy to the text does not deny the importance of understanding the context in which an instrument is made, and which it is intended to address, nor the utility of bearing in mind the facts as they are known at the time the instrument is drafted. This is similar to, but not exactly the same as, the task of statutory construction namely, as French CJ, Hayne, Crennan, Bell and Gageler JJ explained in Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at 519 [39]:“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text” [Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46 [47]]. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.