WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION SITTING AS THE ROAD FREIGHT TRANSPORT INDUSTRY TRIBUNAL PARTIES TRANSPORT WORKERS' UNION OF AUSTRALIA, INDUSTRIAL UNION OF WORKERS, WESTERN AUSTRALIAN BRANCH APPLICANT -v- KEYFAST BULK HAULAGE PTY LTD RESPONDENT CORAM COMMISSIONER S J KENNER DATE WEDNESDAY, 30 MARCH 2011 FILE NO/S RFT 24 OF 2010 CITATION NO 2011 WAIRC 00272 790 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 91 W.A.I.G. Catchwords Owner-driver contract – Referral of dispute regarding payment of claim – Claim for interest on outstanding sum – Owner-Drivers (Contracts and Disputes) Act 2007 ss 4(2), 40(a)(ii). Result Application upheld. Order issued. Representation Applicant Mr A Dzieciol of counsel Respondent No appearance Reasons for Decision Ex tempore 1. I have before me application RFT 24 of 2010. That application is brought by the Transport Workers' Union of Australia, Industrial Union of Workers, Western Australian Branch, which I am satisfied is a transport association for the purposes of section 40(a)(ii) of the Owner-Drivers (Contracts and Disputes) Act 2007, which I will hereafter refer to as the Owner- Drivers Act. The total claim made by the applicant against the respondent Keyfast Bulk Haulage Pty Ltd, as amended during the course of the proceedings is $49,596.72. Also a claim is made for interest at the rate of 6 per cent pursuant to Schedule 1 of the Owner-Drivers Act from 31 August 2010 to the date of judgment, being today. 2. The circumstances essentially are these. The applicant has referred the matter on behalf of its member, Mr Milevski. Mr Milevski carries on a business known as Dragan Truck Hire and Sand Supplies in partnership with his wife, Mrs Milevski. 3. The evidence before the Tribunal given by Mr Milevski is broadly as follows. As I have indicated, Mr Milevski describes himself as a self-employed transport contractor. He owns a Mack truck with trailer with a combined gross tonnage of some 45 tonnes on the evidence before the Tribunal. 4. Approximately eight years ago, Mr Milevski entered into an oral agreement with Mr Boys of the respondent to provide transport services throughout the State, primarily by way of cartage of limestone, rubble and other construction type of materials generally in relation to the construction industry. 5. Mr Milevski testified that he worked in accordance with the terms of the oral contract as set out in the applicant's amended particulars of claim. The first issue to note in relation to the claims is a claim for some $22,866.12, which the applicant disputes was received by him. The Tribunal takes note that in earlier proceedings it, it was asserted by the respondent that that amount was paid by cheque to the applicant and therefore should be deducted from any total sums owing to the applicant. 6. Mr Milevski's evidence before the Tribunal, which was uncontradicted, there being no evidence at all from the respondent, is that from a search of his bank records, there is no evidence that that payment was received by the applicant. Mr Milevski confirmed in his testimony that the bank account to which reference has been made is the applicant's usual business bank account and the bank account into which all payments made by the respondent to the applicant under the terms of the contract had been made, either by cheque or, latterly it seems, by direct bank transfer. 7. Thus, on the evidence before the Tribunal, there is no indication that that money has been received by the applicant. 8. Mr Milevski also referred in his testimony to a number of exhibits which were tendered before the Tribunal, those being exhibits A1, A2 and A3. Exhibit A1 is a copy of recipient created tax invoice, otherwise known as an “RCTI”, which refers to work undertaken in the period April to August 2010. Mr Milevski testified that in relation to work performed in May 2010 for the total sum of $21,894.30, to which GST must be added, that sum was not included in his original claim. 9. In relation to exhibit A2, Mr Milevski testified that these dockets, which are dockets 36686 and 51101, and refer to par 22(b) of the applicant's particulars of claim, refer variously to work undertaken by the applicant which reflects work done but unpaid by the respondent. 10. Furthermore, in relation to exhibit A3, Mr Milevski testified in relation to a number of dockets, including 36682, 36630, 51103 and 51117, that work was undertaken by the applicant for the respondent in relation to a variety of jobs at the request, it seems, of Mr Boys. 11. The particulars of the applicant's claim in relation to exhibit A3 appear at par 22(c)(i) to (iv) inclusive of the particulars of claim. The particulars of claim in that regard refer to particulars of further underpaid dockets whereby the applicant was short paid for work undertaken on behalf of the respondent. 12. The Tribunal has considered carefully Mr Milevski's evidence where he referred to the payments received by him and payments that he should have received in accordance with the terms of exhibit A3. Accordingly, on the evidence of Mr Milevski, the Tribunal is satisfied that the work performed by the applicant on behalf of the respondent, as set out in the particulars of claim and for which payment claims have been made, has been performed and the respondent has failed to pay the applicant the sum claimed or, indeed, any amount. 13. In all of the circumstances, and particularly in the absence of any evidence from the respondent, the Tribunal is therefore satisfied and finds as follows. 14. First that the applicant is a transport association for the purposes of s 40(a)(ii) of the Owner-Drivers Act. Secondly, that Mr Milevski is an owner driver for the purposes of s 4(2) of the Owner-Drivers Act as the operator of a heavy vehicle supplied by him to transport goods within Western Australia. Thirdly, the Tribunal is satisfied, and it finds, that the applicant and approximately eight years ago entered into an oral owner driver contract for the purposes of s 5 of the Owner- Drivers Act. That owner driver contract was for an indefinite term and was for the cartage of goods at rates agreed from time to time between the parties, either paid by an hourly rate arrangement or per tonne. 91 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 791 15. Furthermore, the Tribunal is satisfied on the totality of Mr Milevski's evidence, which I unreservedly accept in the absence of any evidence from the respondent, that on the balance of probabilities the sums as claimed by the applicant are due and owing under the owner driver contract with the respondent, which payments have not been made by the respondent. 16. As to the disputed cheque payment of $22,866.12, in the Tribunal's view, the onus is on the respondent to establish that that payment was made to the applicant. There is no evidence of such. Indeed, the evidence of Mr Milevski is to the contrary, that no such payment was received by him in the applicant's business account used for normal business transaction purposes between the parties to these proceedings. Therefore, accordingly, on the balance of probabilities the Tribunal is satisfied that no such payment has been made. 17. In all of the circumstances, therefore, the Tribunal is satisfied and it finds that the respondent is indebted to the applicant in the total sum as claimed as amended, that being $49,596.72. In accordance with Schedule 1 of the Owner-Drivers Act, interest will be applied to that sum from, I think the most convenient date being 31 August 2010, when the applicant essentially ceased performing work for the respondent to the date of judgment at the rate of 6 per cent per annum, which on the Tribunal's calculation is some $1,735.89. 18. The Tribunal orders accordingly. 2011 WAIRC 00273 REFERRAL OF DISPUTE RE PAYMENT OF A CLAIM IN THE