DISPUTE RE OUTSTANDING PAYMENTS IN THE WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION SITTING AS THE ROAD FREIGHT TRANSPORT INDUSTRY TRIBUNAL CITATION : 2019 WAIRC 00306 CORAM :Senior Commissioner S J Kenner HEARD : Thursday, 20 June 2019 DELIVERED : Friday, 21 June 2019 FILE NO. : RFT 2 OF 2019 BETWEEN : T&H Wilkes Pty Ltd Applicant AND M.A. Builders 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 - Enforcement proceedings upheld – Undertaking accepted Legislation : Industrial Relations Act 1917 (WA) ss 40A, 84A Owner Drivers (Contracts and Disputes) Act 2007 (WA) ss 45, 46(4) Result : Enforcement proceedings upheld Representation Applicant : No appearance required Respondent : Mr M Daqui Reasons for decision The Tribunal has of its own motion commenced these proceedings under s 45 of the Owner-Drivers (Contracts and Disputes) Act 2007 (OD Act). The proceedings are in relation to the enforcement of a summons issued to the respondent to appear at a compulsory conference before the Tribunal on 11 June 2019. An affidavit has been filed by Ms Lisbon, my Associate, on 19 June 2019. Ms Lisbon’s affidavit sets out the background to the listing of the compulsory conference and the circumstances of the failure of Mr Daqui, a Director of the respondent, to appear at the compulsory conference. A copy of Ms Lisbon’s affidavit has been provided to Mr Daqui and he took no issue with its content. In short, Mr Daqui submitted to the Tribunal that whilst he had recently suffered some health issues, he simply forgot the conference date and that was the reason he did not appear before the Tribunal in response to the summons. Mr Daqui was apologetic for his conduct and undertook to ensure that he complies with any further summonses issued by the Tribunal. Based on Ms Lisbon’s evidence the Tribunal is satisfied that the respondent was duly notified of the compulsory conference and without a reasonable cause, failed to appear. The Tribunal has, by s 46(4) of the OD Act, all of the powers and duties of the Full Bench of the Commission under ss 84A(4) to (8) of the Industrial Relations Act 1979 (IR Act) for the purposes of enforcement. Under s 84A(4) of the IR Act, the Tribunal can have regard to the seriousness of any contravention or failure to comply, any undertakings that may be given by a person as to future conduct, and any mitigating circumstances. As I have already mentioned, Mr Daqui on behalf of the respondent accepted his failure to appear as an oversight and was apologetic. He has undertaken to ensure that a summons will be complied with on any future occasion. By s 40A of the IR Act, the Tribunal is empowered to do a number of things in the event that a contravention or failure to comply is proved. On the facts as stated in Ms Lisbon’s affidavit as I have found them to be, and on the basis of Mr Daqui’s submissions, the Tribunal is satisfied the contravention or failure to comply is proved. Where such is the case, the Tribunal may accept any undertakings given or, in the alternative, issue a caution or impose a penalty. In this case the Tribunal has decided to accept Mr Daqui’s undertaking that he will comply with any future summonses issued by the Tribunal.