WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION SITTING AS THE ROAD FREIGHT TRANSPORT INDUSTRY TRIBUNAL CITATION : 2018 WAIRC 00717 CORAM : SENIOR COMMISSIONER S J KENNER HEARD : FRIDAY, 27 JULY 2018, TUESDAY, 21 AUGUST 2018 DELIVERED : WEDNESDAY, 29 AUGUST 2018 FILE NO. : RFT 2 OF 2018 BETWEEN : NIGHTSTONE ENTERPRISES PTY LTD Applicant AND STRETCH EXPRESS PTY LTD ABN 67 622 592 429 Respondent Catchwords : Owner-driver contract - failure to comply with summons to attend compulsory conference - respondent duly notified - enforcement proceedings - respondent could not demonstrate good cause for failure to appear - order issued Legislation : Industrial Relations Act 1979 (WA) s 84A Owner Drivers (Contracts and Disputes) Act 2007 (WA) ss 45(3), 46(1)(a) and 46(4) Result : Enforcement proceedings upheld Representation: Counsel: Applicant : No appearance required Respondent : Mr M Mumme Reasons for Decision 1 The Tribunal of its own motion under s 46(1)(a) of the Owner Drivers (Contracts and Disputes) Act 2007 (WA) has commenced these proceedings for the enforcement of the summons issued to the respondent on 18 July 2018, requiring it to attend a compulsory conference before the Tribunal on 27 July 2018 at 2.15 PM. 2 By s 45(3) of the OD Act, there is an obligation on a person summoned to appear before the Tribunal at a compulsory conciliation conference, unless good cause is shown by the person summoned, as to why they are not able to appear. 3 The relevant facts in this matter are contained in the affidavit of Ms Danielle Amy Lisbon, my Associate, sworn on 20 August 2018. Ms Lisbon’s affidavit sets out the steps taken by her to contact the parties in the present application; to list the matter for a compulsory conference; and to issue summonses to the parties for that purpose, in accordance with the terms of the OD Act. 4 From the terms of Ms Lisbon’s affidavit, I am satisfied and I find that both parties to these proceedings were summonsed under s 45 of the OD Act, by both letter and email, at their addresses for service, set out in the notice of referral in application RFT 2 of 2018. The content of the affidavit, put to the respondent at the enforcement proceedings, including the steps taken by Ms Lisbon to contact the parties, was not disputed by the respondent. Furthermore, I am satisfied that the respondent, on advising my Associate of a new email address for service, was duly served with the notice. Accordingly, the Tribunal is satisfied that both parties were duly served the s 45 summonses. 100 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 163 5 On the date listed for the conciliation conference, that being 27 July 2018 at 2.15 PM, the respondent failed to appear. Ms Lisbon made telephone contact with Mr Mumme of the respondent, the person summonsed to appear, at approximately 2.15 PM. Ms Lisbon asked Mr Mumme if he was on his way to the conciliation conference as he had failed to appear at the listed time for its commencement. Ms Lisbon’s evidence was that Mr Mumme informed her that he would not be attending the conciliation conference and referred to work commitments. There seems to have been some issue from Ms Lisbon’s affidavit in relation to Mr Mumme moving residential premises however, as the Tribunal has already indicated, I am satisfied that the notices were eventually duly served on the respondent. 6 The respondent appeared at the enforcement proceedings. Mr Mumme informed the Tribunal that he did not dispute the fact that he had failed to comply with the summons, referred to the failure of his business and significant financial difficulties that he was experiencing at that time. Mr Mumme informed the Tribunal that he apologised for the failure to comply with the summons, was regretful of his actions, had learned his lesson and would ensure that any further summons or other requirements imposed by the Tribunal in any later proceedings, were complied with. 7 In dealing with enforcement proceedings, the Tribunal under s 46(4) of the OD Act has the powers of the Full Bench of the Commission under s 84A of the Industrial Relations Act 1979 (WA) in relation to the enforcement of the IR Act. Those powers, on a finding of a contravention being proved, include: (a) accepting an undertaking from the person concerned; (b) issuing a caution by order; or (c) imposing a penalty not exceeding $2,000 for an employer, organisation or association, and $500 in any other case. 8 It is plainly important to the functioning of the Tribunal that parties comply with summons to attend proceedings before it. In this case, Mr Mumme has accepted the error of his ways and has given an undertaking to the Tribunal that failure to comply will not occur again in the future. Having regard to the circumstances of the failure to comply, and Mr Mumme’s undertakings to the Tribunal in the enforcement proceedings, the Tribunal will on this occasion, accept the undertaking he has given. 2018 WAIRC 00722 DISPUTE RE OUTSTANDING PAYMENTS IN THE