DISPUTE RE ALLEGED BREACH OF CONTRACT IN THE WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION SITTING AS THE ROAD FREIGHT TRANSPORT INDUSTRY TRIBUNAL CITATION : 2018 WAIRC 00156 CORAM :Senior Commissioner S J Kenner HEARD : Monday, 10 October 2016, Monday, 27 February 2017, Tuesday, 28 February 2017, Wednesday, 1 March 2017, Monday, 13 March 2017, WEDNESDAY, 31 MAY 2017, MONDAY, 7 AUGUST 2017, TUESDAY, 14 NOVEMBER 2017 WRITTEN SUBMISSIONS - THURSDAY, 2 MARCH 2017, WEDNESDAY, 21 JUNE 2017, tHURSDAY, 22 JUNE 2017 DELIVERED : TUESDay, 6 march 2018 FILE NO. : RFT 9 OF 2015 BETWEEN : Ram Holdings Pty Ltd, Michael Italiano Applicant AND Kelair Holdings Pty Ltd Respondent Catchwords : Industrial Law (WA) - Owner-driver contract - Breach of contract - Unconscionable conduct - Safe and sustainable rates - Principles applied - Application upheld in part Legislation : Industrial Relations Act 1979 (WA) Independent Contractors Act 2006 (Cth) Industrial Relations Act 1988 (Cth) Interpretation Act 1984 (WA) Limitation Act 2005 (WA) Owner Drivers and Forestry Contractors Act 2005 (VIC) Owner-Drivers (Contracts and Disputes) Act 2007 (WA) Owner-Drivers (Contracts and Disputes) (Code of Conduct) Regulations 2010 (WA) Retail Trading Hours Act 1987 (WA) Workplace Relations Act 1996 (Cth) Result : Application upheld in part Representation: Counsel: Applicant : Mr K Trainer as agent Respondent : Mr J Parkinson of counsel Intervenor : Mr A Dzieciol of counsel on behalf of the Transport Workers Union, Western Australian Branch (by written submissions) Solicitors: Respondent : K & L Gates Case(s) referred to in reasons: AB v Western Australia (2011) 244 CLR 390 Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113 Derrick v Thiess Pty Ltd [2017] WADC 41 Dickins v Herald and Weekly Times Ltd (1994) 124 ALR 308 Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627 Federal Commerce & Navigation Co Ltd v Molena Alpha Inc [1979] AC 757 Gerrard and Anor v Mayne Nickless Ltd (1996) 135 ALR 494 Harding v EIG Ansvar Ltd (2000) 95 IR 349 Hochester De la Tour (1853) 2 E & B 678 Holden v Nuttall (1945) VLR 171 Inco Europe Ltd and Others v First Choice Distribution (A Firm) and Others [2000] 2 All ER 109 Jones v Dunkel (1959) 101 CLR 298 Keldote Pty Ltd v Riteway Transport Pty Ltd [2008] FMCA 1167 Mersey Steel and Iron Co Ltd v Naylor, Benzon and Co (1884) 9 App Cas 434 Pelka v Sundquist [2005] WASC 52 Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355 Public Transport Authority of Western Australia v Yoon [2017] WASCA 25 R v Gee (2003) 212 CLR 230 Re Bolton; Ex Parte Beane (1987) 162 CLR 514 Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 Re Transport Workers Union of Australia (1993) 50 IR 171 Red Hill Iron Ltd v API Management Pty Ltd [2012] WASC 323 Saeed v Minister for Immigration and Citizenship [2010] HCA 23 SP & S Scolaro T/AS SPS Transport and Ors v Twentieth Superpace Nominees P/L ATF Byrns Smith Unit Trust T/A SCT Logistics [2015] WAIRC 00995 State of NSW v Amery (2006) 230 CLR 174 Steve Burke Transport Pty Ltd v Toll Transport Pty Ltd t/as Toll IPEC [2016] WAIRC 00718 Summersands Pty Ltd t/as Chase Hauliers v BGC (Aust) Pty Ltd t/as BGC Transport [2007] WAIRC 00144 Supaworld Pty Ltd (t/as Cousins Transport) v LN Price Partners Pty Ltd (ACN 053 962 299) (t/as Busselton Freight) (2015) 95 WAIG 649 Sydney Water Corporation Ltd & Anor v Industrial Relations Commission of NSW & Anor [20014] NSWCA 436 Taylor v The Owners of Strata Plan No 11564 & Ors (2014) 88 ALJR 473 The City of Subiaco v Local Government Advisory Board [2011] WASC 322 Van Dongen and Ors v Sims Metal Management Ltd [2016] WAIRC 00327 Case(s) also cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 Amcor v The Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 CFMEU v The Australian Industrial Relations Commission (2001) 178 ALR 61 ING Administration Pty Ltd v Jajoo (2006) 158 IR 239 King v Patrick Projects Pty Ltd [2015] FWCFB 6323 Seiffert v Patrick Projects Pty Ltd [2014] FWC 7019 The Civil Service Association of Western Australia Incorporated v Director-General, Department for Child Protection [2010] WAIRC 00206 === REASONS FOR DECISION === ¶1 The applicant, Ram Holdings Pty Ltd entered into a written owner-driver contract with the respondent, Kelair Holdings Pty Ltd on 20 December 2010. The contract was for a period of five years to run until 19 December 2015. The contract was contained in a document called “Deed of Agreement for Waste Disposal”, a copy of which was exhibit A1. Mr Italiano, the sole director of Ram Holdings, provided driving services for Ram Holdings to Kelair under the contract. The vehicle provided by Ram Holdings was a 22.4 tonne Hino truck fitted with a lifter owned by Kelair. There was no dispute on the evidence that Ram Holdings was an owner-driver and an owner-driver contract, in accordance with the terms of the Owner-Drivers (Contracts and Disputes) Act 2007 (WA), was formed. I am satisfied on the evidence that this was so. The work performed involved the picking up and delivery of skip bins for both residential and commercial customers throughout the metropolitan area. ¶2 Ram Holdings maintained that it diligently provided these services under its contract with Kelair. On 24 March 2015 Kelair terminated the contract with Ram Holdings summarily without notice for breach. The reasons for the summary termination of the contract, were set out in a letter from Kelair to Ram Holdings dated 24 March 2015 which, formal parts omitted, was in the following terms: Termination of Deed of Agreement for Waste Disposal I refer you to the meeting between yourself, Sam Mangione and myself at 50 Clune Street, Bayswater on 23 March 2015. This meeting was held as a direct result of a request by you to meet with Sam, following my instruction to have our trade staff remove our Skip Lifter from your truck. I can confirm as a result of that meeting, we have terminated the Deed of Agreement for Waste Disposal between Ram Holdings Pty Ltd and Kelair Holdings Pty Ltd dated 20 December 2010. We particularly refer you to clauses 6 and 16 concerning your obligations under the deed and our rights to terminate the deed without notice. It is our contention that: 1. Since 1 July 2014 you have not made your truck available to carry out services for Instant Waste Management for 11 weeks (this includes 6 weeks in the last 6 months); 2. You refuse to carry out services for Instant Waste Management on Saturdays; 3. On 22 September 2014, I sent out an e-mail to all subcontractors (including yourself) specifically stating that all leave for periods in excess of 1 week had to follow specific procedures. The email required all subcontractors to confirm receipt. 4. On 25 September 2014, I sent a follow up e-mail to all subcontractors (including yourself) reminding subcontractors to reply to the e-mail of 22 September 2014 in relation to the new leave policy. 5. On 3 October 2014, Bridgette Jacob (from our office) contacted you to follow up on the above two mentioned e-mails to have you reply and acknowledge that you received the e-mails. Bridgette e-mailed me on 3 October 2014 indicating you were rude to her and that you would not reply back. 6. Following your discussion with Bridgette, I personally called you to discuss the new policy that applied to all leave going forward from 23 September 2014. You indicated you would not reply to my e-mail and you made it clear to that you did not intend to comply with the new policy (eg. you specifically stated you would not have a replacement driver in the truck). I finished off our discussion to say that if you failed to apply to the policy you may face disciplinary action. 7. Despite the specific instruction to seek and receive from me approval to take leave (and not make alternative arrangements such as have a replacement driver), you commenced to undertake leave on 23 March 2015 for approximately three (3) weeks in direct contravention of the "leave" policy in place. As you continually demonstrated your reluctance to comply with your obligations under the deed relating to having a truck on the road, we believe we had no[t] option but to terminate the deed. We believe you may have a number of our skip bins on or around your property. Please advise the location of these bins and when it would be suitable to have these bins picked up. Finally, there are outstanding amounts owed to the company. We retain the right to recover these amounts pursuant to the terms of the deed. Should you have any queries, please contact me. ¶3 The reasons for the summary termination of the contract are disputed by Ram Holdings. It has referred its dispute to the Tribunal in accordance with s 40(a)(i) and (b)(i) of the OD Act. Several issues are raised by Ram Holdings in these proceedings, in response to Kelair’s decision to summarily terminate the contract and they include: that Kelair failed to comply with its obligation under the contract to give notice to Ram Holdings of its default and to give it an opportunity to remedy any alleged breaches of the contract; that Ram Holdings maintained that it was not in breach of contract by failing to comply with Kelair’s leave policy and that all leave taken or proposed to be taken by Mr Italiano was approved by Kelair; and that Ram Holdings, in not working Saturdays after the first two years of performance under the contract, did so with the knowledge of and acquiescence by Kelair and Kelair cannot now complain. ¶4 Additionally, Ram Holdings maintained that Kelair engaged in unconscionable conduct in the way it allocated work to Ram Holdings which was said to be unfair. This was said by Ram Holdings to have deprived it of earning income comparable to that earned by other owner-drivers engaged by Kelair. Ram Holdings further alleged that Kelair engaged in unconscionable conduct by the way the contract was terminated, which according to Ram Holdings, involved deception by Kelair. A further claim made by Ram Holdings in these proceedings, is that the rates paid by Kelair to Ram Holdings under the contract were not “safe and sustainable rates” for the purposes of the OD Act and the Owner-Drivers (Contracts and Disputes) (Code of Conduct) Regulations 2010 (WA). ¶5 A range of declarations and orders are sought by Ram Holdings including damages for breach of contract in the sum of $99,523.90, being the amount that Ram Holdings would have earned had the contract continued to its date of termination on 19 December 2015. Additionally, unspecified damages for unconscionable conduct are sought. Furthermore, an order is sought by Ram Holdings that Kelair pay it at a “sustainable rate” as set out in Appendix B to Ram Holdings’ amended particulars of claim. In the alternative as to this claim, Ram Holdings sought the referral of the issue of sustainable rates to the Road Freight Transport Industry Council under the OD Act. This latter course is not one open as the resolution of disputes is for the Tribunal. ¶6 Kelair denied Ram Holdings’ claims in their entirety. Furthermore, Kelair also maintained that the Tribunal has no jurisdiction to deal with Ram Holdings’ sustainable rates claim and to make the orders which it seeks. ¶7 A further preliminary issue for the Tribunal to determine is whether it can hear Ram Holdings’ claim for breach of contract under s 40(a)(i) of the OD Act. This is because at the time of the referral of the matter to the Tribunal, Ram Holdings was no longer a party to an owner-driver contract, as it had already been terminated. The Tribunal will turn to consider this issue first. [Jurisdiction – s 40(a)(i) OD Act] ¶8 In relation to this issue, the Transport Workers’ Union of Australia Industrial Union of Workers (WA Branch) was granted leave to intervene in these proceedings and by written submissions, addressed the issue of jurisdiction. The TWU referred to the decision of the Tribunal as presently constituted in SP & S Scolaro T/AS SPS Transport and Ors v Twentieth Superpace Nominees P/L ATF Byrns Smith Unit Trust T/A SCT Logistics [2015] WAIRC 00995; (2017) 97 WAIG 398 in which it was held by the Tribunal, by way of obiter, that for a matter to be validly referred to it under s 40(a)(i) of the OD Act, a party to an owner-driver contract needed to be a party to an existing owner-driver contract and not one that had been terminated. The TWU also referred to a later decision of the Tribunal as otherwise constituted, in Steve Burke Transport Pty Ltd v Toll Transport Pty Ltd t/as Toll IPEC [2016] WAIRC 00718; (2016) 96 WAIG 1652 in which it was held that a party to an owner-driver contract can refer a dispute to the Tribunal under s 40(a)(i) of the OD Act, despite the contract having come to an end. In neither Scolaro nor Steve Burke Transport was there an appeal to the Full Bench of the Commission. The submission was made that given that the Tribunal is not bound by its previous decisions, then the Union invited the Tribunal in this matter to revisit the issue of the interpretation of s 40(a)(i) of the OD Act based on its submissions. ¶9 The first point raised by the TWU, was that s 8 of the Interpretation Act 1984 (WA) provides that “a written law shall be considered as always speaking and whenever a matter or thing is expressed in the present tense, it shall be applied to the circumstances as they arise, so that effect may be given to every part of the law according to its true spirit, intent, and meaning.” In this respect, the TWU referred to Pelka v Sundquist [2005] WASC 52 in which McKechnie J applied the terms of s 8 of the Interpretation Act to s 39(g) of the Retail Trading Hours Act 1987 (WA). In that case, McKechnie J at par 33, considered that s 8 provided “sufficient authority” to read the word “belongs” in s 39(g) to encompass the past tense of the word as reading “belonged”. The view was taken by McKechnie J in that case, that a contrary interpretation would not give the law its true spirit, intent and meaning, when regard was had to the purpose of the relevant provision of the statute under consideration. ¶10 The second point made by the TWU in its written submissions, was that the purpose of the OD Act is “to promote a safe and sustainable road freight transport industry by regulating the relationship between persons who enter into contracts to transport goods in heavy vehicles and persons who hire them to do so …” It was submitted that adopting the approach of the Tribunal in Scolaro, to limit the referral of matters to the Tribunal only in cases where a person is a party to an extant owner-driver contract, would not be consistent with this purpose and object. As was recognised in both Scolaro and in Steve Burke Transport, to limit the application of s 40(a)(i) in this manner, may allow an unscrupulous hirer to take advantage of the limitation by terminating a contract before an owner-driver has an opportunity to refer a dispute to the Tribunal. ¶11 It was therefore submitted, that the interpretation of a statutory provision that would enable a person to take advantage of his or her own wrongdoing, should be resisted: Holden v Nuttall (1945) VLR 171. ¶12 Having regard to the terms of relevant parliamentary materials, in view of s 18 of the Interpretation Act, the TWU submitted that in considering the second reading speech and the explanatory memorandum referring to the OD Act on its introduction into Parliament, it is doubtful that Parliament would have intended what the TWU described as an “odd” consequence. ¶13 As to the purpose and object of the legislation, the TWU referred to the well-known and oft cited decision as to the approach to the interpretation of statutes in Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355. In this respect, the Union submitted that the Tribunal should not adopt a narrow reading of s 40(a)(i) of the OD Act, when considering its purpose as an object, and the relevant Parliamentary materials referred to above. ¶14 The third point raised by the TWU in its written submissions was the acceptance by the Tribunal in Steve Burke Transport, that the OD Act should be regarded as beneficial legislation and therefore should be construed liberally: State of NSW v Amery (2006) 230 CLR 174. The submission was that when dealing with beneficial legislation, a court or tribunal should avoid a literal or technical interpretation and the construction which should be afforded is “fair, large and liberal”: AB v Western Australia (2011) 244 CLR 390. In this regard, the Union submitted that the Tribunal should adopt a construction to s 40(a)(i) of the OD Act consistent with the object of the legislation, to provide a means of disputes between owner-drivers and hirers being resolved in a manner that is expeditious and inexpensive. It was contended that a narrow construction of s 40(a)(i) is not consistent with this purpose. ¶15 Finally, the TWU submitted that it is accepted that in certain situations, it would be permissible for a court or tribunal to add, omit or substitute words into a statute: Inco Europe Ltd and Others v First Choice Distribution (A Firm) and Others [2000] 2 All ER 109. In this case, three conditions were stated that needed to be met in order for a court to consider reading words into legislation, they are the intended purpose of the provision and the legislation; that by error the provision in question does not give effect to that purpose; and the provision Parliament would have used had it been aware of the error. ¶16 Thus, the submission of the Union was that the intended purpose of the OD Act was to give the Tribunal a wide jurisdiction in relation to owner-driver disputes. The use of the word “is” in s 40(a)(i) appears to be out of step with the wide definition of “dispute” and also the insertion of the words “in relation to” in the section. The submission was it can be reasonably concluded that had this matter been drawn to the attention of Parliament, then it would have included in this provision, words that made it clear that parties to an owner-driver contract that was no longer extant, could refer disputes to the Tribunal. Finally, the further submission was that if consistent with the object of a statute, and only simple grammatical rectification is required, then a court can read additional text into legislation: Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627 at 639. ¶17 Ram Holdings adopted the submissions of the TWU. ¶18 On behalf of Kelair, it was submitted that the approach of the Tribunal to this issue adopted in Scolaro rather than in Steve Burke Transport is to be preferred. Kelair emphasised in its submissions that interpretation is a text based activity and the focus must always be on the words used in the statute in question. Reference was made by Kelair to the observations of the High Court in Taylor v The Owners of Strata Plan No 11564 & Ors (2014) 88 ALJR 473, referred to by the Tribunal in Scolaro. ¶19 As to s 40(a) specifically, Kelair submitted that the introductory words may appear to be wide in scope, however the following sub-pars in (i) and (ii) condition the scope of the matters that may be referred to the Tribunal. The terms of s 40(a)(i), construed in its ordinary and natural sense, refer to “a person who is a party” to the owner-driver contract. The meaning of “is” is clear. Kelair submitted that it extends to those contracts on foot or in existence as at the time of the referral. The scheme of language in s 40(a)(i) also refers to a person who is “a party” to the owner-driver contract. A person can no longer be characterised as a “party” to an instrument when it is no longer on foot. Kelair further contended that this on foot and operative quality to s 40(a)(i) is maintained in s 40(a)(ii). This aspect of the referral provision deals with the capacity of a transport association to refer a matter to the Tribunal on behalf of a person eligible to be a member, as “a party to the owner-driver contract”. ¶20 Again, consistent with its earlier submissions, Kelair submitted that the statutory scheme is consistent in requiring the on foot and operative quality of the contract for a dispute in respect of it to be referred to the Tribunal. Thus, in the case of both ss 40(a)(i) and (ii), the language of the legislation focuses on the individual at the time of the referral, as being a party to an extant owner-driver contract. On the submissions of Kelair, this is a clear part of the statutory scheme. Consistent with this broad approach, Kelair also referred to the powers of industrial inspectors under s 32(1) of the OD Act. These powers, in relation to the investigation of whether an owner-driver contract “is” being complied with, are also expressed in the context of an extant owner-driver contract, consistent with the terms of ss 40(a)(i) and (ii). ¶21 On the broader question of the purposes and objects of the legislation, it was Kelair’s contention that this approach to the interpretation of ss 40(a)(i) and (ii) was consistent with the purposes of the OD Act. The long title to the legislation refers to the OD Act as: An Act – to promote a safe and sustainable road freight transport industry by regulating the relationship between persons who enter into contracts to transport goods in heavy vehicles and persons who hire them to do so; and to establish the Road Freight Transport Industry Tribunal and the Road Freight Transport Industry Council, and for related purposes. ¶22 Having regard to the first point in the long title, Kelair contended that it was a clear purpose of the OD Act to “regulate the relationship” between owner-drivers and hirers whilst the relationship is on foot. For there to be any regulation of the relationship by the legislation, Kelair contended that the relationship must be in existence. Consistent with this proposition, the Tribunal can remain able to deal with matters referred to it despite the subsequent termination of an owner-driver contract, after a referral. I will comment on this latter submission further below. ¶23 Even accepting that the legislation should be described as remedial or beneficial in nature, the submission of Kelair was that giving the terms of the OD Act a “large and liberal interpretation”, must be within the confines of the limits expressed by the High Court in Taylor, as observed by Gageler and Keane JJ in that case. Thus, such an approach does not permit speculation as to what Parliament may have intended or seek to engage in statutory repair. ¶24 As to the other heads of referral under ss 40(b) and (c), Kelair in its submissions distinguished these as dealing with a different subject matter and there being no requirement expressly, by the language of the statute, for an ongoing contractual relationship. It was submitted that no support for the contentions of the applicant and the TWU as intervenor, can be found in either ss 40(b) or (c). ¶25 As a general point of principle, Kelair also submitted that given there is no time limit specified in the OD Act for the referral of matters to the Tribunal under s 40(a)(i), and the Tribunal is not, as opposed to the Commission, a court, the Limitation Act 2005 (WA) has no application. Accordingly, claims could be potentially made to the Tribunal many years after the termination of an owner-driver contract, on the interpretation advanced by the TWU. Kelair submitted that this could not have been the intention of Parliament, for there to be such an open-ended situation. ¶26 As to the reference by the TWU to s 8 of the Interpretation Act 1984 (WA) and the decision in Pelka, Kelair submitted that this case was distinguishable from the present circumstances. In Pelka, McKechnie J read “belongs” as “belonged” in reliance on s 8 of the Interpretation Act. Kelair submitted that this did not involve reading words into legislation. The TWU’s submission sought to rewrite the OD Act using the reasoning in Pelka and this goes beyond the permissible application of this approach to construction. ¶27 As the Tribunal observed in Scolaro at par 10: 10 The issues of jurisdiction arising in these proceedings turns essentially on matters of statutory interpretation. The relevant principles in relation to this are well settled. It is always to be borne in mind that at its essence, statutory interpretation is a text based activity and it is to the text of the statute to which primary emphasis must be given: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 per Hayne, Heydon, Crennan and Kiefel JJ at par 47; Amcor Ltd v CFMEU (2005) 222 CLR 241 per Kirby J par 67. Additionally, a construction that is consistent with the purpose of a statute is to be preferred to one that is not: s 18 Interpretation Act 1984 (WA). Furthermore, a statutory provision is to be construed in the context of the statute as a whole: Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355. Most recently, as Gageler and Keane JJ said in Taylor v The Owners – Strata Plan No 11564 (2014) 88 ALJR 473 at par 65: [65] Statutory construction involves attribution of legal meaning to statutory text, read in context. “Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning … But not always.”112 Context sometimes favours an ungrammatical legal meaning. Ungrammatical legal meaning sometimes involves reading statutory text as containing implicit words. Implicit words are sometimes words of limitation. They are sometimes words of extension. But they are always words of explanation.113 The constructional task remains throughout to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative inattention. Construction is not speculation, and it is not repair. ¶28 I also adopt the reference to the statutory scheme set out in pars 11-21 in Scolaro and I need not repeat it for the purposes of these reasons. ¶29 As to the question of the OD Act being beneficial or remedial, as was recently said by the Industrial Appeal Court in Public Transport Authority of Western Australia v Yoon [2017] WASCA 25; (2017) 97 WAIG 249 at par 56 as follows: 56 The general principles of statutory construction were not in contest. They have been set out, relatively recently, by the Court of Appeal in, eg, City of Kwinana v Lamont19 and Director General of Department of Transport v McKenzie.20 Ms Yoon also relied upon the principle that remedial legislation should be construed beneficially. That principle, where it applies, requires that the provision in question be construed so as to give the fullest relief which the fair meaning of its language will allow, but not that its true signification should be strained or exceeded: Bull v Attorney-General (NSW);21 Khoury v Government Insurance Office (NSW).22 The court is not at liberty to give the provision a construction that is unreasonable or unnatural: IW v City of Perth.23 Further, in Victims Compensation Fund Corporation v Brown24 it was said that to commence the process of construction by posing the type of construction to be afforded - liberal, broad or narrow - may obscure the essential question regarding the meaning of the words used in the text. ¶30 The task of a court or tribunal is to always commence with the text of the legislation, read in its ordinary and natural sense. It is erroneous to begin this task of construction through the lens of whether a statute should be regarded as beneficial or remedial. As the authorities above refer, to do so may obscure the issue of the proper meaning of the language used in the statute. ¶31 Also, while it is the case that reference may be made to extrinsic materials such as Parliamentary debates and explanatory memoranda as an aid to the construction of legislation, it is “erroneous to look to extrinsic materials before exhausting the ordinary rules of statutory construction”: The City of Subiaco v Local Government Advisory Board [2011] WASC 322 per Edelman J at par 90 citing Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252, 265. In Saeed, it was said by the plurality (French CJ, Gummow, Hayne, Crennan and Kiefel JJ) at pars 31-33 as follows: 31 As Gummow J observed in Wik Peoples v Queensland, it is necessary to keep in mind that when it is said the legislative "intention" is to be ascertained, "what is involved is the 'intention manifested' by the legislation." Statements as to legislative intention made in explanatory memoranda or by Ministers, however clear or emphatic, cannot overcome the need to carefully consider the words of the statute to ascertain its meaning. 32 In Re Bolton; Ex Parte Beane the question was whether a statutory provision concerned with "visiting forces" applied to deserters from the armed forces of the United States. Mason CJ, Wilson and Dawson JJ said: "[T]he second reading speech of the Minister … quite unambiguously asserts that Pt III relates to deserters and absentees whether or not they are from a visiting force. But this of itself, while deserving serious consideration, cannot be determinative; it is available as an aid to interpretation. The words of a Minister must not be substituted for the text of the law. Particularly is this so when the intention stated by the Minister but unexpressed in the law is restrictive of the liberty of the individual. It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the Court remains clear. The function of the Court is to give effect to the will of Parliament as expressed in the law." 33 Regard was had by the Full Court in this case to what was said in Re Bolton; Ex Parte Beane. Nevertheless, it is apparent that the Court did not consider the actual terms of s 51A and its application to the provisions of the subdivision. As was pointed out in Catlow v Accident Compensation Commission it is erroneous to look at extrinsic materials before exhausting the application of the ordinary rules of statutory construction. ¶32 In any event, in my view, from a review of the relevant Parliamentary materials, I do not consider them to be of much assistance in the determination of the present issue. There appears to be nothing in either the Second Reading Speech or the Explanatory Memorandum accompanying the owner-driver legislation, that sheds direct light on the issue to be considered in this matter, as to the proper construction of s 40(a)(i) of the OD Act. Even if it did so, having regard to the observations of the High Court in Re Bolton; Ex Parte Beane (1987) 162 CLR 514 cited above in Saeed, it is the language of the statute itself that must be taken as expressing Parliament’s intention. ¶33 Adopting the above approach, I have come to the following conclusions in view of the submissions made by the parties and the intervenor. Firstly, I do not consider that s 8 of the Interpretation Act provides the refuge sought in this case by the TWU and Ram Holdings. I disagree with respect, with the conclusions of the Tribunal in Steve Burke Transport and more recently in Summersands Pty Ltd t/as Chase Hauliers v BGC (Aust) Pty Ltd t/as BGC Transport [2007] WAIRC 00144, to the extent that the Tribunal in those cases reached a contrary view. Section 8 refers to the “law always speaking” approach to the interpretation of legislation, which is principally concerned with the changes in the meaning of words used in legislation over time. Thus, words in legislation may be deliberately drafted in ambulatory language, to cover changes in subject matter in the future: R v Gee (2003) 212 CLR 230; Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113. Furthermore, and relevantly to the present matter, this principle of interpretation, along with the application of the Interpretation Act provisions generally, is subject to any contrary intention as expressed in the statute concerned. This is expressly acknowledged in s 3. ¶34 In Pelka, the issue in that case was the status of a certificate issued under s 39(g) of the Retail Trading Hours Act 1987 (WA), which is an “evidentiary” provision by which the CEO of the Department of Consumer and Employment Protection may sign a statement, stating the class of shop to which a retailer “belongs”. The matter before the court involved an appeal from a decision of the Court of Petty Sessions dismissing complaints against certain retailers for allegedly trading on Sundays, contrary to the legislation. A contention was put on the appeal that it was not open to give a s 39(g) certificate retrospective effect. McKechnie J held that s 8 of the Interpretation Act was sufficient authority to read “belongs” as “belonged”, to extend it to the class of shop at the time of the alleged offence. ¶35 The present matter before the Tribunal is of a different kind. There is no scope to simply read “is” as “was” in s 40(a)(i). This would be nonsensical. It is not just a case of reading a word in the statute in the past tense, to apply to the circumstances as they arise before the Tribunal. The contention advanced by the TWU and Ram Holdings, requires words to be inserted into the legislation that are not there. Furthermore, Pelka concerned the interpretation of a facilitative evidentiary provision as a part of the evidentiary background to support a prosecution under the relevant legislation. The question in this case is far more fundamental. It concerns the standing and status of persons to refer matters to the Tribunal to invoke its jurisdiction. ¶36 In the case of s 40(a)(i), Parliament chose quite different language to that used in ss 40(b) and (c). Parliament could have referred to “an owner-driver or hirer” in (i) without reference to the words “is a party to the owner-driver contract”. To do this would have still made it clear from the introductory words in s 40(a), that the dispute referred by such an owner-driver or hirer, is one “arising under or in relation to an owner-driver contract”. This would still give full effect to the expansive words used in the introductory part of s 40 itself. The key to the capacity to refer in such a case, if the legislation is read in this way, would be the person’s status as an owner-driver or hirer. This is the scheme used in the comparable Victorian legislation, the Owner Drivers and Forestry Contractors Act 2005 (VIC). It is notable that the legislation in this State uses quite different language. ¶37 Whilst not referred to in the submissions in this matter, nor raised and considered in either Scolaro or Steve Burke Transport, an issue of a similar kind has arisen in cases under federal legislation dealing with independent contractors. From my research the cases under s 127A of the Workplace Relations Act 1996 (Cth) and the Independent Contractors Act 2006 (Cth) include Keldote Pty Ltd v Riteway Transport Pty Ltd [2008] FMCA 1167; Harding v EIG Ansvar Ltd (2000) 95 IR 349; Dickins v Herald and Weekly Times Ltd (1994) 124 ALR 308; Re Dingjan; Ex parte Wagner (1995) 183 CLR 323; Gerrard and Anor v Mayne Nickless Ltd (1996) 135 ALR 494 and Re Transport Workers Union of Australia (1993) 50 IR 171. ¶38 In Re TWU, an application made under s 127A of the then Industrial Relations Act 1988 (Cth) came before Munro J of the Australian Industrial Relations Commission. An issue arose as to the jurisdiction of the AIRC to deal with the matter, on the basis that on the ordinary and natural meaning of the words used in the relevant parts of the legislation, the jurisdiction of the AIRC only existed in respect of a contract on foot at the time of the exercise of powers to make any orders by the AIRC. Munro J accepted that there was doubt as to the application of the legislation, given the use of the present tense in the language in the sections concerned. However, in relying on two earlier decisions of the NSW Industrial Relations Commission, albeit the legislation in those cases containing different language in the statutory provisions, Munro J came to the view at 195, that the AIRC had jurisdiction because, despite the subsequent termination of the contracts, the contracts were on foot at the time of the commencement of the relevant legislation and at the time of the lodgement of the application. ¶39 In Re TWU, and in the subsequent decision of the NSW Court of Appeal in Sydney Water Corporation Ltd & Anor v Industrial Relations Commission of NSW & Anor [2014] NSWCA 436 dealing with jurisdictional challenges to the NSW Industrial Commission under the s 106 unfair contracts jurisdiction, it was held that termination of a contract, after the commencement of a claim, did not preclude the AIRC’s or the NSW Industrial Relations Commission’s jurisdiction to review it. ¶40 Following Re TWU, consideration of the scope of ss 127A and 127B of the then Industrial Relations Act 1988 (Cth) came before the Industrial Relations Court of Australia in Dickins. In this case, an application was made to the court on the basis that a contract for services was “unfair and/or harsh”. At the time of the application, the relevant contract had come to an end. The respondent moved a motion that the application be dismissed on two grounds. The first was that s 127A did not permit a review of a contract no longer in existence as at the time the application was made. The second ground was that in any event, the legislation conferring jurisdiction on the court came into effect after cessation of the contract and the presumption against retrospectivity applied. ¶41 As to the first ground, it was argued that the use of the present tense in the legislation made it clear that the court’s jurisdiction was limited to contracts that had not been terminated. Keely J, at 311, accepted these arguments and dismissed the application. His Honour referred to earlier decisions including Re TWU, but was not persuaded the court could exercise powers in relation to a contract that had come to an end. To this extent, Dickins must be taken to have overruled Re TWU. ¶42 Harding was an application to the Federal Court under s 127A of the Workplace Relations Act 1996 (Cth). Section 127A was relevantly in the following terms: 127A Unfair contracts with independent contractors: Court’s powers (1) In this section and in section 127B: contract means: (a) a contract for services that: (i) is binding on an independent contractor; and (ii) relates to the performance of work by the independent contractor, other than work for the private and domestic purposes of the other party to the contract; and (b) any condition or collateral arrangement relating to such a contract. (2) Application may be made to the Court to review a contract on either or both of the following grounds: (a) the contract is unfair; (b) the contract is harsh. (3) An application under subsection (2) may be made only by: (a) a party to the contract; or (b) an organisation of employees of which the independent contractor is (or has applied to become) a member, if it is acting with the written consent of the independent contractor; or (c) an organisation or association of employers of which the person contracting for the services is (or has applied to become) a member, if it is acting with the written consent of the person. (4) In reviewing the contract, the Court may have regard to: (a) the relative strength of the bargaining positions of the parties to the contract and, if applicable, any persons acting on behalf of the parties; and (b) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, a party to the contract; and (d) whether the contract provides total remuneration that is, or is likely to be, less than that of an employee performing similar work; and (e) any other matter that the Court thinks relevant. (5) If the Court forms the opinion that a ground referred to in subsection (2) is established in relation to the whole or part of the contract, it must record its opinion, stating whether the opinion relates to the whole or a specified part of the contract. (6) The Court may form the opinion that a ground referred to in subsection (2) is established in relation to the whole or part of the contract even if the ground was not canvassed in the application. (7) The Court must exercise its powers under this section in a way that furthers the objects of this Act as far as practicable. … (My emphasis) ¶43 The matter came before Spender J for interim relief and his Honour expressed the view that s 127A “contemplates an application to review a presently subsisting contract on the grounds that it is unfair or harsh”: at 350. Spender J expressed doubt as to the court’s jurisdiction to grant relief if the relevant contract had come to an end. However, his Honour was prepared to proceed on the basis that the court could deal with the matter, because of a concession as to jurisdiction made by the respondent in those proceedings. ¶44 Not long after, similar issues arose again before the High Court in Re Dingjan; Ex parte Wagner (1995) 58 IR 138. In this case, challenges were made to the constitutional validity of ss 127A, 127B and 127C. In doing so, the court also considered arguments as to whether the provisions had application in circumstances where independent contracts have come to an end. In the proceedings before the AIRC at first instance, it was held that it did have power to do so and that the powers of review and variation under ss 127A and 127B, applied to contracts that were on foot when the application to the AIRC was made. ¶45 The prosecutors before the High Court challenged that decision and contended that the legislation properly construed, was confined to current contracts. The challenge to the AIRC’s powers in relation to ss 127A and 127B, was based on the use of the present tense in those provisions. In particular, attention was focused on the relevant definition of “contract” in s 127A(1), set out above, which referred to a contract that “is binding on an independent contractor”. Furthermore, the same reference to the present tense was in s 127A(2) in relation to grounds of review, when referring to a contract that “is unfair”, or “is harsh”, and “is against the public interest”. The contention advanced by the prosecutors was that the use of the present tense in ss 127A and 127B must be interpreted so that the powers of the AIRC to vary and review contracts only applied to those on foot at the time that orders were to be made. ¶46 In her judgement, Gaudron J (Mason CJ, Deane and Toohey JJ agreeing) in addressing this issue, said at 162-163: ¶47 The present tense may be used descriptively or it may be used to signify contemporaneity. Although there is no fixed rule, the use in a statute of the present tense, simpliciter, generally indicates that it is being used descriptively (the "simple present"), whereas "is" followed by a present participle (the "continuous" or "progressive" present) usually indicates contemporaneity.92 The descriptive use of the present tense can be seen in s 127B(4) where the words "takes effect" do not indicate that an order then takes effect but, rather, describe and, thus, prescribe the way in which an order must take effect. ¶48 The power of the Commission under s 127B(3) to make interim orders "to preserve the position of a party to the contract" does not, in my view, provide any reliable guide to the construction of ss 127A and 127B. The power to make interim orders is not confined to orders which operate to keep a contract on foot. Moreover, it is power that might usefully be invoked even if the Commission has power to vary contracts that have come to an end. ¶49 The most persuasive of the matters relied on for the argument that the Commission has no power to vary contracts that have come to an end is the definition of "contract" in terms of a contract that "is binding on an independent contractor".93 As earlier indicated and although there is no fixed rule in that regard, the present participle often imports contemporaneity. However, the use of "binding" as a participle adjective meaning "enforceable" is also well recognised94 and, when so used, "is binding" is a descriptive use of the simple present, rather than a use of the continuous or progressive present. No question arises in this case as to whether the Commission's jurisdiction is confined to contracts that are current when application is made to it under ss 127A and 127B. That question may raise a different issue from that involved in this case. In particular, it may raise the issue whether ss 127A and 127B were intended to have retroactive operation. Whatever the position in that regard, ss 127A and 127B are not, in my view, confined to contracts which are current when the particular power of review or variation comes to be exercised. That construction would allow the Commission to review a contract that is current when the review takes place, but not to vary the contract if it comes to an end or, as is more likely, if it is brought to an end before an order is made under s 127B. It cannot be supposed that Parliament intended that consequence, particularly in the context of contracts relating to the performance of work by an independent contractor where, in the nature of things, the power to terminate without notice or on short notice may well be the very matter which makes the contract unfair, harsh or against the public interest.95 That being so and given that "binding" is often used to mean "enforceable", the use of the present tense in ss 127A and 127B is merely descriptive of the nature of the contracts which may be the subject of the Commission's powers, namely, contracts enforceable against an independent contractor and whose terms or operation may be described as unfair, harsh or against the public interest. Contrary to the argument advanced on behalf of the prosecutors, its use does not signify that the Commission's powers under ss 127A and 127B are confined to contracts that are current when it comes to exercise those powers. ¶50 In considering the same question, Brennan J came to a different conclusion. His Honour was unable to conclude that a contract which has come to an end, could provide the foundation for the exercise of any power to set aside or vary such a contract by way of orders to be made as a remedy. In this respect, Brennan J said at pp 145-146 as follows: 3. Can the power to set aside or vary the terms of a contract conferred by s 127B(1) be exercised in relation to a contract that has been discharged? In my opinion the answer to this question turns not on the tense of any verb in s 127A or s 127B but on the existence of a contract amenable to being set aside or varied by an exercise of the power conferred by s 127B(1). With great respect to the opposite view, I am unable to see how it is possible to set aside or vary a contract that is sterile of any enforceable right or obligation. A contract, created by the mutual agreement of the parties to be bound by its terms, is a source of mutual rights and obligations. By definition in the Act,27 a contract must be "binding" on the independent contractor, that is, enforceable against that party. However, when a contract is terminated, one or more of the parties may have a cause of action against the other party or parties28 but, generally speaking,29 no contractual right or obligation survives termination so as to be enforceable as such.30 It is true to say that the contract, viewed as a source of enforceable rights and obligations, has ceased to exist.31 The terms of a terminated contract will govern the measure of damages for its breach, if there has been a breach, but the very hypothesis on which damages are awarded is that the innocent party has not had, and is no longer entitled to, performance of the executory terms of the contract.32 It may be that it would be beneficial to one of the parties to a discharged contract if s 127B(1) were construed to authorise the subsequent setting aside or variation of the contract but the language of s 127B does not permit such a construction. By subs (4) an order under subs (1) takes effect "from the date of the order or a later date". The order which takes effect is made so as to place the parties as nearly as practicable "on such a footing that the ground [of unfairness, harshness or contrary to the public interest] on which the opinion is based no longer applies": subs (2). Subsection (4) precludes the backdating of that alteration in the position of the parties to a time when the condition of unfairness, harshness or contrariety to public policy was being produced by the contract then subsisting. Ex hypothesi, once the contract is terminated, it no longer produces such a condition. I would mention a further point — though not to base my decision upon it, for the point was not raised by the parties and was not fully argued. The point would require consideration if a retrospective operation were attributed to s 127B(1). Once a contract is discharged and the rights of the parties inter se depend not on contract but on property,33 would a power to alter retrospectively the rights of the parties under the contract amount to an acquisition of property within s 51(xxxi) of the Constitution and be subject to the requirement of just terms? On the view I take of ss 127A and 127B, this question does not need to be answered. I would hold that those sections have no application to a contract that has been terminated. As s 127C(1)(b) fails to attract the support of s 51(xx) of the Constitution, I would make absolute the order nisi for writs of prohibition and certiorari made by Dawson J. ¶51 The question of whether the Commission’s powers under ss 127A and 127B can be exercised to vary a contract that was terminated prior to referral was left open in Re Dingjan. This issue was considered in Gerrard. In this case, the Full Court of the Industrial Relations Court, on issues of law referred to it, was asked whether the court had power to deal with an application made to the court after the termination of the contract. In considering this issue, the Full Court (Wilcox CJ, Ryan and Marshall JJ) referred to the arguments of senior counsel, to the effect that the language of ss 127A and 127B was compelling; the absence of any indication the provisions were intended to have retrospective effect; and the absence of any prescribed limitation period, which meant that contractors could seek to reopen contracts long after their termination and seek orders having substantial retrospective operation. The court, at 506, found the latter contention to be a “telling point” in favour of the challenger’s submissions and that if the legislation did not require an application to be made prior to the termination of a contract, it would enable a party to “reopen issues seemingly dead and buried” (at 506). However, the Full Court was persuaded to adopt the underlying approach taken by the majority in Re Dingjan, that the court’s jurisdiction could be enlivened even if the contract had been terminated prior to the referral. The court also referred to the history of the legislation, and that it was intended to operate in a similar way to the long standing New South Wales unfair contracts legislation. That is not the case with the OD Act in this State. ¶52 The conclusions reached by the Tribunal in Scolaro, as to the scope of s 40(a)(i), were strictly obiter, as it was not necessary to finally decide that point for the purposes of the final disposition of those proceedings. In Scolaro, it was found by the Tribunal on the facts, that the contract in question had not in fact been terminated prior to the referral of the matter to the Tribunal. The cases presently under consideration were not the subject of submissions in Scolaro, nor was the Tribunal’s attention in that case drawn to s 8 of the Interpretation Act. ¶53 With respect, I retain considerable reservations as to the conclusions reached by the Tribunal in Steve Burke Transport, and the contentions advanced on the submissions of the TWU. Apart from the cases to which I have referred above, one such reservation, if the TWU’s submissions should now be accepted, is the fact that a referral to the Tribunal under s 40(a)(i) is completely open-ended in time. There are no time limits imposed for the bringing of such an application under the OD Act. Given that the Tribunal, as identified by Kelair, as opposed to the Commission, is not a court for the purposes of the Limitation Act 2005, this means it would be open for an owner-driver or former owner-driver to refer a dispute to the Tribunal under s 40(a)(i) many years after the termination of an owner-driver contract. This could expose a respondent hirer to those proceedings, to the possibility of orders being made against it under s 47 of the OD Act. ¶54 By s 43(1) of the OD Act, ss 22B and 26(1)(a) and (b) of the IR Act are adopted provisions. These require the Tribunal to proceed to deal with matters with all due speed and in accordance with equity, good conscience and the substantial merits of the case without regard to legal form and technicality. These provisions sit uncomfortably with an open-ended capacity to refer matters to the Tribunal under s 40(a)(i) and (ii), where there is no time limit under either ss 40(b) or (c). It will remain an argument for another day, as to whether the equitable defence of laches has any application to the Tribunal’s jurisdiction. This is particularly so where, as opposed to the federal independent contractor legislation, parties may refer owner-driver contract disputes to the civil courts for relief, as s 49 of the OD Act makes clear. ¶55 In view of my reservations, but for the decisions in Re Dingjan and more appositely Gerrard, I would not be prepared to alter the views I expressed in Scolaro. I would prefer the approach of Keely J in Dickins. With respect, whilst not binding on the Tribunal and in considering somewhat different legislation, the conclusions in Gerrard appear to be based in part on matters of policy, and the possibility of inconvenience of a contrary conclusion. I also remain less than convinced that there is scope to read words into s 40(a)(i) and (ii) as contended by the TWU. I refer to the observations of Gaudron J in Re Dingjan, to the use of the present tense in a statute as being descriptive or contemporaneous. In this case, the language of s 40(a)(i) and (ii) is not just expressed in the present tense simpliciter. The word “is” is followed by the words “a party to an owner-driver contract”. The words used are relational. They refer to a particular relationship. In this case, that relationship ended a long time before the referral to the Tribunal. ¶56 However, despite my apprehension, I am prepared to accept in this case, that the Tribunal has jurisdiction to deal with Ram Holdings’ claim for breach of contract. [The Agreement] ¶57 Before turning to the evidence in relation to the alleged breaches of the Agreement, I will briefly set out some relevant provisions of it. ¶58 Under the Agreement, a copy of which was exhibit A1, Ram Holdings would provide waste disposal services to Kelair for a period of five years from 20 December 2010 to 19 December 2015. As specified in cl 1, the provision of services by Ram Holdings to Kelair was to be on an exclusive basis. It was a further term of the Agreement in cl 4(a), that Ram Holdings was required to purchase a truck from Kelair. ¶59 By cl 6(a) Ram Holdings was to provide the services to Kelair on request by Kelair, between the hours of 4:00 am to 6:00 pm Monday to Saturday and to work after hours as required. Ram Holdings was required to comply with reasonable requests and directions from Kelair as specified in cl 6(c). Ram Holdings was further required to deliver and pick up all sizes of bins from any location as directed by Kelair in cl 6(e). The definition of “services” was specified in cl 1. ¶60 Furthermore, as to the performance of the work, Kelair was to provide work to Ram Holdings in designated areas, where possible given market conditions and as determined by Kelair at its discretion, as specified in cl 10(a). As usual for such arrangements, Ram Holdings was required to hold and maintain all relevant insurance cover, including workers’ compensation for its employees as set out in cl 13(a). By cl 14(a), a default under the Agreement would occur if Ram Holdings did not remedy a breach of the Agreement within five days of Kelair giving written notice of such breach. Notices of default under the Agreement were required to be in writing and served either personally or by sending it by post or fax. ¶61 By cl 15, Kelair had a discretion to allocate work to any contractor or employee in any designated area to ensure the collection of waste. As to termination of the Agreement, either party to it could terminate the contract for default or other specified reasons as set out in cl 16. On termination of the Agreement, there was an obligation on Ram Holdings to return property to Kelair and the costs of the removal of a skip lifter were to be borne by Ram Holdings. ¶62 In relation to the entering into the Agreement, Ram Holdings acknowledged that there was no guarantee of any specified return; there was no inducement for it to enter into the Agreement and furthermore, an acknowledgement that Ram Holdings had legal advice as to the terms of the Agreement, as specified in cl 31. In relation to rates of remuneration, they were specified in the Schedule to the Agreement. It was common ground in this case, that the rates for the waste removal contractors were negotiated between Kelair and the TWU. [Breach of contract] ¶63 There were two bases for Ram Holdings’ breach of contract claim. The first was that the summary termination of the Agreement by Kelair was not justified, as Ram Holdings was not in breach of its obligations under the Agreement. Specifically, Ram Holdings contended that it did not fail to comply with Kelair’s new leave policy dealt with below. Furthermore, Ram Holdings contended that it was not in breach of the Agreement by ceasing to work on Saturdays after the first 18 months or so of the performance of services under the Agreement. It was contended in this respect, that the relevant provision of the Agreement does not require all contractors to work hours which include Saturdays each week. ¶64 The second contention of Ram Holdings that Kelair breached its obligations under the Agreement, was that Kelair failed at any time during the performance of services by Ram Holdings under the Agreement, to serve a default notice as required by the Agreement, and to give Ram Holdings a reasonable opportunity to remedy the alleged default. [Saturday work] ¶65 There was no dispute on the evidence that for the first year and a half or so of services under the Agreement, Ram Holdings performed work for Kelair on Saturdays. Mr Italiano testified that by mid-2012, he came to the view that it was no longer financially viable for Ram Holdings to continue to do this. He testified that in performing Saturday work, Ram Holdings was earning less income than if the work had been performed as an employee of Kelair. According to Mr Italiano, from about this time he ceased working on Saturdays for this reason. In response to this situation, Mr Italiano testified that no one from Kelair required or directed him to resume Saturday work, especially the general manager of Kelair, Mr Miniello. It was Mr Italiano’s evidence that after stopping Saturday work for the reasons specified, he heard nothing further about this issue until he received the letter from Kelair, set out above, terminating the Agreement. ¶66 Mr Miniello described Ram Holdings’ reluctance to work Saturdays as consistent with Kelair’s overall experience with Ram Holdings in the performance of services under the Agreement. This was described by Mr Miniello as being a general reluctance to work the available hours to be worked, as opposed to other owner-drivers who regularly maximised their working hours and hence their earnings. It was Mr Miniello’s evidence that Ram Holdings’ failure to continue work on Saturdays contributed to its inability to earn income comparable to other owner drivers. Mr Miniello did accept however, that Ram Holdings was never told by Kelair that it would be in breach of the Agreement by not continuing to perform services on Saturdays. [Leave and the new policy] ¶67 It was common ground that Mr Italiano had extensive time off work because of an injury which he sustained in or about September 2013. This injury led to two periods of absences of three weeks each in 2014. The absences were covered by medical certificates and Kelair took no issue with them at the time. ¶68 The issue that did arise in the proceedings was in relation to the taking of holidays and annual leave. Tendered as exhibit A10, were various leave requests made by Ram Holdings to Mr Sims the then Operations Manager of Kelair. These leave requests covered the periods of leave in August 2014 and March to April 2015. It is the latter period that was the most controversial for present purposes. ¶69 According to Mr Italiano, on 19 June 2014 he made a request for leave to be taken from 23 March 2015 to 10 April 2015 to attend his son’s wedding. This request was sent by email to Mr Sims. Mr Sims replied on 23 June 2014 to the effect that whilst no rosters had yet been developed for this period, in other respects, “this request should be fine”. Mr Italiano’s evidence was that he assumed therefore, having received this response from Mr Sims, that the taking of leave on these dates would be in order. In the interim period however, Kelair introduced a new leave policy. This was set out in an email from Mr Miniello to all owner-drivers dated 22 September 2014. In it, Mr Miniello announced a new approach to the issue of owner-drivers taking leave. As it assumed some significance in these proceedings, and was a substantial basis for the decision of Kelair to terminate the Agreement, I set out the email of 22 September 2014, contained at exhibit A11, formal parts omitted, as follows: Dear Instant Waste Subcontractor Historically, we have allowed subcontractor drivers take extended leave and have their truck off the road. As we have been extremely busy over the past 12 months and foresee a very busy 12 months ahead, we cannot continue with this policy. As a result, effective immediately subcontractors are not permitted to take leave for periods extending beyond 1 week except in the following circumstances: You are able to organise a replacement driver who will be able to drive your truck while you are on leave; You pre-arrange (before 31 October) leave over the Christmas break between approximately 20 December to 5 January each year; or You have been granted special leave which has specifically been agreed by the General Manager (which is currently me). In all cases, you should provide, as a matter of professional courtesy, at least 4 weeks notice of a request to take any leave. So that there is no misunderstanding, please bear in mind that just because you have applied for special leave does not necessarily mean you will be granted leave. This will be decided on a case by case scenario, however, by way of example, if you have taken extended leave (say for 2 or more weeks) in the last 24 months, it is unlikely special leave will be granted. Consideration for special leave is really designed for such things as personal health related issues and major truck repairs. In some cases there will be unplanned issues (eg. sickness and truck breakdowns) and we will work with you on these, however, in most cases, these unplanned issues would typically take less than 1 week to sort out. Failure to adhere to the above policy and procedures may lead to disciplinary action including applying the provisions relating to breach of contract for failure “to perform services for 7 consecutive days”. If you have any queries please contact me. Would you please confirm receipt of this e-mail, so that it can be placed on your file. regards (My emphasis) ¶70 The rationale for this different approach to the taking of leave by owner-drivers was explained by Mr Miniello. He testified that by about the end of 2013, the workload at Kelair started to approach a “boom period”. Over the course of 2014 this further developed. As Kelair’s business is very customer focused, Mr Miniello said there was a need for as many trucks to be on the road as possible at any one time. The practise in the past had been that many owner-drivers had taken their trucks off the road when taking leave and this impacted on Kelair’s ability to deliver services to its customers. The new policy sought to address this. If an owner-driver was to be on leave for an extended period (more than one week) they must have a replacement driver or otherwise be given a special dispensation by Mr Miniello. To ensure the new policy was received by all owner-drivers, a follow up email was sent to them from Mr Miniello on 25 September 2014. As no response was received from some of the owner-drivers, a further follow up reminder email was sent from Ms Jacob of Kelair on 2 October 2014. ¶71 There was no dispute that Mr Italiano received a copy of the new policy. It was further common ground that as Mr Italiano did not reply to Mr Miniello’s earlier emails or the follow up by Ms Jacob, Mr Miniello telephoned him to discuss the matter with him. Mr Italiano accepted that such a discussion took place. ¶72 Mr Italiano also testified that when he spoke to Mr Miniello he requested an exemption from the policy. This was because of the cost to Ram Holdings obtaining workers’ compensation insurance cover for a replacement driver. A quote received by Mr Italiano from his insurance broker, suggested that given Ram Holdings’ claims history, any insurance cover cost premium would be exorbitant. Mr Miniello agreed that in his telephone call with Mr Italiano, the issue of costs of workers’ compensation cover was raised. Mr Miniello denied however, that Mr Italiano requested an exemption from the policy. Mr Miniello testified further that the estimate for workers’ compensation cover that Mr Italiano received, sounded very high based on his own knowledge of such matters and based on information that Mr Miniello had obtained from an insurance broker himself. ¶73 It was also common ground that, somewhat surprisingly, in the conversation between Mr Italiano and Mr Miniello referred to above, Mr Italiano made no mention of his email communications with Mr Sims, about his proposed leave for the following March to April 2015, and Mr Sims’ qualified approval. It was Mr Miniello’s evidence that at no time was he made aware of this prior communication from Mr Sims. In this connection, Mr Italiano further said however, that no one from Kelair followed up with him or informed him that this prior qualified approval was no longer valid given the new policy. However, given Mr Miniello’s lack of knowledge of it, and that Mr Sims was no longer employed by Kelair, it would not be surprising that there may not have been any such follow up. Mr Miniello conceded however, that given Mr Sims’ earlier response to Mr Italiano about him taking leave in 2015, it would have been reasonable for Mr Italiano to assume that it had been approved at that time. ¶74 According to Mr Miniello the owner-drivers agreed to the new policy and it was only Ram Holdings that raised issues with it. ¶75 Events moved on. Mr Miniello testified that from this point on he was very reluctant to give any leave approvals to owner-drivers for the reasons he had identified. At a time not determined on the evidence, but prior to 23 March 2015, Mr Miniello said he became aware of further proposed leave to be taken by Mr Italiano. Mr Miniello prepared a note for himself setting out all the leave that Ram Holdings had taken over the period 1 July 2014 to 13 March 2015 (exhibit R6). Including the period of absence of Mr Italiano for injury, referred to above, this totalled some 11 weeks, with a further three weeks commencing 23 March 2015. [Removal of lifter] ¶76 Another contention advanced by Ram Holdings was that the removal of the skip lifter by Kelair on 23 March 2015 constituted a breach of the contract. It was said that this had the effect of terminating the contract because without it, Ram Holdings was not able to perform the services. It was also submitted that the actions of Kelair were unfair and deceptive, when knowing Ram Holdings was taking its truck into the workshop for servicing, Kelair took the opportunity to remove the lifter. This was part of Ram Holdings’ claim in relation to unconscionable conduct. Mr Italiano also testified that when he spoke to Mr Miniello on 23 March 2015 and asked whether the skip lifter would be put back on if he produced the email from Mr Sims approving his leave, Mr Miniello said that it would not go back on. ¶77 On the other hand, Kelair maintained that even though the lifter was removed to protect the assets of the business, it could be easily refitted to the truck. Thus, no real damage was caused to Ram Holdings. Furthermore, Kelair maintained in any event, as Mr Italiano was proposing to go on leave for three weeks and was not engaging a replacement driver, the truck was not going to be used to perform the services so no loss would be sustained by Ram Holdings. [Termination of the Agreement] ¶78 Mr Miniello testified that he also became aware of Ram Holdings’ truck being booked in for servicing and maintenance on 23 March 2015. This request was set out in an email dated 13 March 2015 from Mr Loriso of Kelair to Kelair’s maintenance section (exhibit A14). Mr Italiano testified that on 23 March 2015 he duly took his truck in for maintenance, expecting the work to be performed to take some two to three days. On his arrival to the workshop, Mr Italiano was informed by the workshop manager that the job would probably only take half a day to complete. Mr Italiano then left the premises for a short period and while out, received a telephone call from the workshop manager, advising him that the job may take longer. ¶79 When he returned to the premises, Mr Italiano testified that he saw the workshop manager operating a forklift around his truck. The manager told Mr Italiano that he had been directed by Mr Miniello to remove the skip lifter from the truck. In accordance with the terms of the Agreement, the skip lifter, as noted earlier in these reasons, remained the property of Kelair. Mr Italiano described the work done in the removal of the skip lifter as a very quick job, and he said that wires and bolts were simply cut through. ¶80 On seeing this occur, Mr Italiano went to see Mr Miniello straight away. Mr Miniello informed Mr Italiano that Ram Holdings was in breach of the Agreement and the leave policy, because he was proposing to take further extended leave without his approval. When Mr Italiano told Mr Miniello that the prior operations manager Mr Sims had approved the leave, Mr Miniello responded to the effect that he had not approved it, as the general manager of Kelair. When Mr Italiano said he mentioned that he had a copy of the approval from Mr Sims, Mr Miniello told him to go home and get it. Mr Italiano’s response was that if he did do so, would the skip lifter be put back on the truck to which Mr Miniello replied that it would not. Mr Miniello also told Mr Italiano he had some 11 weeks off work in the preceding 12-month period. ¶81 The decision to instruct the workshop to remove the skip lifter from Ram Holdings’ truck was confirmed by Mr Miniello. He said that there may be a difficulty in removing it from the truck if the truck was returned to Ram Holdings’ possession. It was Mr Miniello’s evidence that he acted to protect Kelair’s business interest. Mr Miniello considered that Ram Holdings was in breach of the Agreement because it had generally failed to work co-operatively with the work schedulers; it had failed to work on Saturdays in accordance with the terms of the Agreement; and there had been a failure to follow Kelair’s new policy on the taking of leave by owner-drivers. ¶82 A meeting then took place between Mr Miniello, Mr Italiano and Mr Mangione, a director of Kelair. Mr Miniello informed Mr Mangione of his views and that in his opinion, Kelair should terminate the Agreement. Mr Miniello confirmed that the skip lifter had been removed. He informed Mr Mangione that Mr Italiano had planned to go on leave again and no replacement driver had been arranged. Mr Italiano said that he told Mr Mangione that it was too expensive for Ram Holdings to obtain a relief driver. It was Mr Mangione’s evidence that he asked Mr Italiano whether he was sure that he was not going to comply with the policy and Mr Italiano responded to the effect that “no he would not do it”. Mr Mangione’s evidence was that there was no reference made by Mr Italiano to any prior approval of leave by Mr Sims, or any period of absence from the workplace because of injury in the meeting. ¶83 It appears on the evidence that there was some discussion of the purchase by Kelair of Ram Holdings’ truck at the end of the meeting, but that matter was not further pursued. [Notification of breach and opportunity to rectify] ¶84 It was common ground that at no time did Kelair serve notice on Ram Holdings of an alleged breach of Ram Holdings’ covenants or other terms of Agreement as required by cl 14 of the Agreement. Mr Miniello did say in his evidence, that had Ram Holdings not taken its truck in for repairs on 23 March 2015, he would have considered issuing such a notice, in the circumstances. [Consideration] ¶85 I refer to the terms of cl 16(a) of the Agreement which was in the following terms: ¶86 16. Termination ¶87 This Deed may be terminated by: ¶88 (a) either party may terminate this Deed on the occurrence of an event of default; ¶89 As mentioned, it was common ground that through the evidence of Mr Miniello, at no time did Kelair serve notice of default under cl 14(a) of the Agreement on Ram Holdings. In these circumstances, it was in my view not open to Kelair to rely on any default by Ram Holdings of its covenants or other obligations under the Agreement to terminate it. As matters transpired however, the case for Kelair in relation to termination of the Agreement, seemed to come down to its contention that by proposing to proceed on leave on 24 March 2015 for three weeks, contrary to Kelair’s new leave policy, Ram Holdings failed to comply with Kelair’s reasonable requests and directions as to the performance of services, contrary to cl 6(c) of the Agreement. ¶90 In relation to the alleged failure by Ram Holdings to consistently work on Saturdays, it was not open for Kelair to rely on this as a justification for termination of the Agreement. This is despite any failure to comply with its default notice obligations. Clause 6(a) of the Agreement provided: ¶91 6. Contractor must provide Services ¶92 The Contractor covenants and agrees that the Contractor must: ¶93 (a) provide the Services to Kelair when requested by Kelair during normal trading hours from 4.00am to 6.00pm Monday to Saturday inclusive and if necessary the Contractor is required to work after hours to complete the work allocated by Kelair to the Contractor; ¶94 As noted earlier, Ram Holdings ceased providing services on Saturdays after about the first one and a half years under the Agreement. The reason for this was because it was not economic for Ram Holdings to continue to do so. Thereafter, Ram Holdings did not perform services on Saturdays and there was no evidence before the Tribunal that anyone in authority from Kelair directed or requested Ram Holdings to resume doing so. As a matter of construction of cl 6(a), the obligation to work hours specified within the range of 4 am to 6 pm Monday to Saturday inclusive is not to be construed in my view, as independent of any request or direction by Kelair to do so. The language of cl 6(a) construed in its ordinary and natural sense, includes reference to “when requested by Kelair”. These are words of clear qualification. In the absence on the evidence of any further request or direction to Ram Holdings to perform such services on Saturdays, then in my view, no breach of cl 6(a) is made out. ¶95 In any event, even if such a direction or request had been given by Kelair to Ram Holdings, the failure by Kelair to give Ram Holdings a notice of default under cl 14(a) of the Agreement, and an opportunity for Ram Holdings to remedy the default, means it could not provide a basis for the termination of the Agreement under cl 16(a). There would also be no ground for termination open to Kelair on such a basis in cl 16(b) either, due to Ram Holdings ceasing to work Saturdays, in my view. ¶96 The obligations imposed on Kelair by cl 14 of the Agreement are important. They were not just matters of mere procedure. Kelair was required to give Ram Holdings notice of an alleged breach of any covenants or obligations it had under the Agreement and an opportunity to remedy any default. The importance of this requirement is underscored by Kelair’s right under the Agreement to terminate the Agreement without notice, as seems to be the scheme contemplated by cl 16, under a contract to run for five years. Kelair, through the evidence of Mr Miniello, seemed to regard such obligations as “hoo-hah” and to be treated somewhat dismissively (186 ts). They were not. ¶97 Therefore, to the extent that Kelair sought to rely on the Saturday work issue at point 2 on page 1 of its letter of termination of 24 March 2015, this was erroneous. Kelair was not able to do so on the facts of this case. ¶98 Returning to the issue of annual leave, which as noted above, seemed to become the main basis for the justification to terminate the Agreement, Kelair relied upon cl 6(c) of the Agreement, which was in the following terms: ¶99 (c) comply with all reasonable requests and directions of Kelair in relation to providing the Services; ¶100 The argument of Kelair was to the effect that the new leave policy produced by Mr Miniello in September 2014, constituted a reasonable direction to Ram Holdings. It was further contended that the effect of Ram Holdings proposing to go on leave from 23 March 2015 was, in effect, an anticipatory breach of Ram Holdings’ obligations under the Agreement. As the argument went, this entitled Kelair to terminate the Agreement without notice: Federal Commerce & Navigation Co Ltd v Molena Alpha Inc [1979] AC 757. The evidence relied on by Kelair was the policy and Ram Holdings’ awareness of it for some time prior to proposing to take leave and Ram Holdings’ refusal to comply with its terms. In effect, on Kelair’s case, while not put in these precise terms, Ram Holdings’ express refusal to perform constituted a repudiation of its obligations under the Agreement: Hochester De la Tour (1853) 2 E & B 678; Mersey Steel and Iron Co Ltd v Naylor, Benzon and Co (1884) 9 App Cas 434. ¶101 In cases of anticipatory breach of contract, it generally needs to be established that the breach is certain; is serious; and would give rise to the right to terminate the contract by the other party. Even if one were to look at this issue in this way, it would necessarily require a finding of breach and a right, without more, in Kelair to terminate the Agreement without notice. ¶102 As to the first issue, Mr Miniello conceded that given Mr Italiano had sought and obtained approval to take leave in March 2015, many months prior to it being due to be taken, it was reasonable for him to assume that it was sanctioned by Kelair at the time of the response from Mr Sims. However, it is also the case that at the time of the new leave policy and up to the meeting with Mr Mangione on 23 March 2015, Mr Miniello was not aware of the prior approval by Mr Sims. Despite email and telephone communications between Mr Miniello and Mr Italiano, somewhat inexplicably, Mr Italiano never raised the prior approval with Mr Miniello. This is especially surprising given the quite strident language used in Mr Miniello’s email to the owner-drivers of 22 September 2014, and the follow-up. It was clearly an important issue for Mr Miniello and Kelair. One would have thought that Mr Italiano, in view of the prior indication from Mr Sims some months earlier, which was in fact qualified, would have sought to at least query whether the prior provisional approval still stood. Nonetheless he did not do so. This almost seems to be a case of wilful blindness on the part of Ram Holdings. The issue is however, what is the consequence of all of this? ¶103 It was not entirely clear, as noted above, when Mr Miniello became aware that Mr Italiano was proposing to take a further three weeks’ leave. It was at least sufficiently prior to 23 March 2015 however, so Mr Miniello could prepare a summary of leave taken by Ram Holdings over the course of the prior year or so. It was also clear on the evidence that prior to Ram Holdings taking its truck into the workshop for repairs and servicing, Mr Miniello had directed the manager of the workshop to remove the skip lifter. It seemed also to be the case on the evidence, that Mr Mangione was aware of this, prior to him meeting with Mr Italiano on 23 March 2015. ¶104 Accepting Kelair’s contention that the new leave policy set out in Mr Miniello’s email constituted “a reasonable request and direction of Kelair”, for the purposes of cl 6(c) of the Agreement, then that does not of itself, get Kelair home on the termination of the Agreement point. This is because Kelair still needed to satisfy the requirements of cl 16. Clause 16(b) contemplated the termination of the Agreement other than in circumstances of default. This seems clear enough from the language of cl 16(a) and (b) when read together. The matters set out in cl 16(b)(iii) to (ix) largely concern events independent of the covenants and obligations imposed by the Agreement, except perhaps for sub-par (viii). The only possible provision that could be argued to apply to the annual leave issue, would be cl 16(b)(iii) which provided as follows: ¶105 16. Termination ¶106 … ¶107 (b) … ¶108 (iii) the Contractor is unable, whether through a defect in the Motor Vehicle or otherwise, provided that such inability is not attributable to any act or omission of Kelair, to perform the Services for 7 consecutive days or an aggregate of 10 days in any 6 month period of the Term; ¶109 This provision, not uncommon in contracts of this kind, provides for the ability of a party to terminate a contract, through the other party’s inability to perform its obligations. This may be some frustrating event which precluded Ram Holdings from performing its services. This could be for example, catastrophic failure of Ram Holdings’ truck, or the permanent incapacity of Mr Italiano, or some such similar event. In the present circumstances before the Tribunal, Ram Holdings was not, least as at 23 March 2015, unable to perform the services. At best, on the evidence, Ram Holdings, through Mr Italiano, had expressed an unwillingness to do so because of the dispute over the taking of leave, and the cost of workers’ compensation cover for a replacement driver. As at 23 March 2015, Mr Italiano could conceivably simply have changed his mind and kept working and not proceeded on leave, or proceeded on leave for a shorter period. ¶110 Accordingly, in my view, in the context of the parties’ rights and obligations under the Agreement, any failure by Ram Holdings to comply with the annual leave policy would more properly be characterised as a breach of Ram Holdings’ covenant in cl 6(c). This being so, the obligation would fall on Kelair to give notice to Ram Holdings under cl 14(a) of an alleged default and give Ram Holdings an opportunity to remedy the default. This is despite Mr Miniello saying he was very busy at the time and not wanting to deal with issues regarding Mr Italiano, from the tenor of Mr Miniello’s evidence given in the proceedings. ¶111 Before reaching this conclusion however, consideration must be given to whether on the facts, Ram Holdings was in breach of its obligation under cl 6(c) of the Agreement. If not, then Kelair was in breach of the Agreement and the termination of it would be unlawful. If so, then the admitted failure by Kelair to serve a default notice brings into play the impact of cl 14, and the consequence of such failure to comply, including how any damages for breach may have to be assessed. ¶112 As to whether Ram Holdings breached cl 6(c) of the Agreement, I first observe that there was no question that Ram Holdings’ request for leave made on 19 June 2014 (exhibit A10) was in accordance with the leave policy of Kelair in place at that time. By a memo of 5 September 2012 (exhibit A9) Mr Sims informed all owner-drivers of the venue policy for leave requests. At least four weeks’ notice was to be given and leave was to be granted on a “first in first served” basis. Ram Holdings’ request for leave was plainly in accordance with this policy. ¶113 As for the request made for leave for March to April 2015, Mr Italiano accepted in his evidence that Mr Sims’ response was qualified, due to his reference to rosters not yet being prepared for 2015. However, importantly for present purposes, Mr Miniello accepted in his evidence that it was reasonable for Mr Italiano to assume, from Mr Sims’ response, that leave for 2015 was approved, at least at that time. This must be the starting point. The question therefore is whether the policy introduced by Mr Miniello, countermanded Mr Sims’ approval given previously on 23 June 2014. In my view, for the following reasons, it did so. Mr Miniello accepted that he made no enquiries as to prior approvals and Mr Italiano did not tell him of Mr Sims’ response. ¶114 Firstly, the context of the new policy was important. This was referred to in the second paragraph. It was made clear that the prior policy of extended leave without trucks being on the road would not continue. Reference was made to a busy period in the 12 months ahead, which would cover the period that Ram Holdings proposed to be absent for three weeks. Secondly, in this context, the new policy was to be effective immediately. No leave was to be taken for greater than one week unless the conditions in the policy were met. Thirdly, the reference to possible disciplinary action was a clear sign of the importance of the new approach. ¶115 On any reasonable view of the matter, and coming from the general manager of Kelair, it was quite clear that this represented a major change in approach. Any variation would need special dispensation. The policy also referred to the taking of leave of more than two weeks in the prior 24 months (which Ram Holdings had done) and said this was also a clear indication of the constraints to be imposed. ¶116 Furthermore, Mr Italiano’s evidence that he spoke to Mr Miniello and requested an exemption from the new policy, and explored the cost of a replacement driver, was inconsistent with Ram Holdings’ contention that it did not need to comply with the new policy because of the prior approval by Mr Sims. It ultimately came down to the costs of compliance with the policy, in terms of workers’ compensation premiums for a replacement driver, and not any issue of prior approval. Ram Holdings made it clear that it was not able to comply and was unwilling to do so. Accordingly, I am satisfied that Ram Holdings did fail to comply with cl 6(c) of the Agreement in relation to leave. ¶117 Returning then to the issue of the termination of the Agreement for breach of cl 6(c). In these circumstances, and in view of the preceding discussion, Ram Holdings committed an act of default for the purposes of cl 14(a) of the Agreement. Kelair was therefore obliged to serve a notice of default on Ram Holdings and give it the opportunity, within five days, to remedy the default. As it transpired on the evidence, this seemed to be, according to Mr Miniello in any event, what Kelair may have had in mind and may have done, had Ram Holdings not brought in its truck for repairs on 23 March 2015. ¶118 As to the removal of the lifter, in my view its removal on the instructions of Mr Miniello was plainly a breach of the Agreement. By cl 17(a), the lifter, being the property of Kelair, could only be removed following termination of the Agreement. Kelair had no right to do so prior to this event, regardless of whether Mr Miniello thought he was acting to protect the property of Kelair. It was not for Kelair to take matters into its own hands, and to ignore Ram Holdings’ contractual rights. I am also satisfied that Kelair used the opportunity of the return of Ram Holdings’ truck for servicing, to remove the lifter in a deceptive way. Kelair took unfair advantage of this situation without any notice to Mr Italiano. The first Mr Italiano knew about the matter was when he saw the lifter in the process of being removed by the workshop manager. ¶119 The conduct of Kelair towards Ram Holdings in this respect was consistent with the general tenor of Mr Miniello’s evidence towards Ram Holdings. I have no doubt that Mr Miniello regarded Mr Italiano as somewhat of an irritant and someone who was always complaining. The scheduled maintenance of Ram Holdings’ truck and the proposed leave by Mr Italiano, provided the opportunity for Kelair to rid itself of the problem. Accordingly, the Tribunal also regards this conduct by Kelair as unconscionable. [Damages for breach] ¶120 In Supaworld Pty Ltd (t/as Cousins Transport) v LN Price Partners Pty Ltd (ACN 053 962 299) (t/as Busselton Freight) (2015) 95 WAIG 649, in relation to the approach of the Tribunal to an award of damages, I said: 69 By s 47(4) of the OD Act, the Tribunal has the power to order the payment of a sum of money by way of damages, in the determination of a dispute before it. The approach of the Tribunal to the assessment of damages is to apply the established common law contractual principles. In this respect, the Full Bench of the Commission on an appeal from a decision of the Tribunal in Shacam Transport Pty Ltd v Damien Cole Pty Ltd (2014) 94 WAIG 1835, recently observed at par 22: 22 The relevant legal principles governing an assessment of damages were summarised by Buss JA in Australian Goldfields NL (In liq) v North Australian Diamonds NL [2009] WASCA 98; (2009) 40 WAR 191. At [276] his Honour observed: The general contractual principle governing the measure of damages is that the innocent party suing for breach of contract is to be placed in the same position, so far as money can do it, as if the contract had been performed: see Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272 at [13] per French CJ, Gummow, Heydon, Crennan and Kiefel JJ; Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 80 per Mason CJ and Dawson J; L Shaddock & Associates Pty Ltd v Parramatta City Council (No 1) (1981) 150 CLR 225 at 237 per Gibbs CJ; Wenham v Ella (1972) 127 CLR 454 at 471 per Gibbs J. The innocent party is entitled to damages for loss of bargain (expectation loss) and damage suffered, including expenditure incurred, in reliance on the contract (reliance loss): see Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1 at 11 - 12 per Mason, Wilson and Dawson JJ. The innocent party should receive the monetary sum which, so far as money can, represents fair and adequate compensation for the loss suffered by reason of the breach of contract. Ordinarily, this involves a comparison between the position in which the innocent party would have been if the breach of contract had not occurred and what, relevantly, represents the position in which the innocent party is in after the occurrence of the breach: see Amann Aviation (at 116) per Deane J. ¶121 I adopt that approach in this case. The issue therefore is, what would have been the position of Ram Holdings had Kelair complied with its obligations under the Agreement? For Kelair to comply with its obligations, would have required it to give to Ram Holdings a notice under cl 14(a) to the effect that Mr Italiano, in proceeding on leave as planned, without Ram Holdings arranging for a replacement driver to keep its truck on the road, was in breach of the Agreement. Further, that Kelair proposed to terminate the Agreement under cl 16(a), unless the default was rectified within five days. ¶122 Whilst regrettably cl 16 is not clearly drafted as to the notice to be given by either a contractor or Kelair in the event of a default, it would be reasonable to assume, considered objectively, that a reasonable person in the position of the parties, would apply the same notice as is specified in cl 16(b) in the case of termination for default in cl 16(a): Supaworld at par 28 (citing Red Hill Iron Ltd v API Management Pty Ltd [2012] WASC 323 per Beech J at pars 106-123. ¶123 Thus, the Tribunal needs to consider Ram Holdings’ likely response to Kelair serving a notice of default on it, based on the evidence. The evidence before the Tribunal was to the effect that Ram Holdings saw major problems in compliance with the new leave policy because of workers’ compensation costs for a replacement driver. Ram Holdings saw this as prohibitive. It was also clear on the evidence, after discussions between Mr Italiano, Mr Miniello and Mr Mangione, that Mr Italiano informed Kelair that Ram Holdings would not be complying with the policy because it felt it could not do so. ¶124 On this evidence, the Tribunal must assess the likely response of Ram Holdings to a default notice for non-compliance with the policy, as best it can. For the Tribunal to grant the relief sought by Ram Holdings, would require the conclusion that Ram Holdings would have continued to perform the services under the Agreement, for the remainder of its term. However, I consider that the only reasonable conclusion that the Tribunal can reach on the evidence is that Ram Holdings’ response to the issue of notice of default would be no different to Ram Holdings’ response to Kelair’s new leave policy. That is, it was not feasible for Ram Holdings to comply with it and Ram Holdings accordingly, would not put a driver in its truck for the period of Mr Italiano’s intended absence on leave. I have also considered the possibility of Ram Holdings deciding that Mr Italiano would not proceed on leave as planned and continue to work and provide services under the Agreement. Given however, the reason for Mr Italiano being absent is that he had to go away to attend his son’s wedding, understandably, I consider the prospect of a major change to Ram Holdings’ intentions in this regard to be remote. ¶125 I also need to consider the issue of whether damages flow from the breach of the Agreement by Kelair in removing the skip lifter from Ram Holding’s truck. As already mentioned, the truck was to be off the road and not earning revenue under the Agreement for about three weeks while Mr Italiano went on leave to attend his son’s wedding. As there could in those circumstances be no loss of revenue, there is no basis to establish compensable loss. ¶126 Damages may be awarded for breach of contract based on contingencies. However, before a court will award damages based on a chance that a plaintiff may make a profit or achieve a benefit under a contract, there must be evidence of a “‘substantial’ or a ‘not minimal chance (more than a mere speculative possibility)’ that the plaintiff would have acquired the benefit or made the profit”: Chitty J, Chitty on Contracts: General Principles (2012) par 26-003. ¶127 The Tribunal in this case cannot be satisfied that Ram Holdings would have continued to work and provide services under the Agreement in response to the default notice. It is therefore most likely that in the circumstances, Kelair would have in any event, exercised its right to terminate the Agreement under cl 16 without notice. There was also no compensable loss established in relation to the unlawful removal by Kelair of the skip lifter. However, in recognition of the rights held by Ram Holdings under the Agreement in respect of these matters and of the breaches by Kelair, the Tribunal will award nominal damages, with the quantum to be agreed or as assessed by the Tribunal: Chitty at par 26-004. [Unconscionable conduct] ¶128 Ram Holdings’ unconscionable conduct claim was based on three main propositions. Firstly, it was contended that the conduct of Kelair was unconscionable in relation to the formation of the Agreement. Ram Holdings contended that Kelair offered the Agreement on a “take it or leave it” basis and therefore this constituted a failure to negotiate, for the purposes of s 30(2)(i) of the OD Act. There was a further submission that at the time of the provision of the Deed to Ram Holdings, a copy of the then current Guideline Rates, as required by the Code, was also not provided. ¶129 The second basis for the unconscionable conduct claim as the Tribunal understood it, was that in the performance of the services under the Agreement, Ram Holdings was treated differently to other owner-drivers. Specifically, as I understood the claim, Ram Holdings was not allocated work in such a way that it could maximise the efficient performance of its work. Also, Ram Holdings was disadvantaged, in that other owner-drivers were given access to more beneficial runs, closer to tipping points, therefore being more advantageous to them in terms of potential earnings. ¶130 Finally, was the contention that the circumstances of the removal of the lifter and the manner of the termination of the Agreement was also unconscionable. I have already dealt with the issue of the removal of the lifter above. ¶131 The issue of unconscionable conduct for the purposes of the OD Act was dealt with by the Tribunal in Van Dongen and Ors v Sims Metal Management Ltd [2016] WAIRC 00327; (2016) 96 WAIG 598. After referring to the Tribunal’s decision in Supaworld, in relation to ss 30 and 31 of the OD Act, I said at pars 13-18 as follows: ¶132 13 Whilst ss 30(1) and 31(1) of the OD Act do not say, as does s 21(4)(a) of the ACL, that they are “not limited by the unwritten law relating to unconscionable conduct” (which means the Australian common law), given the expansion of the concept of unconscionability by the factors to be considered in ss 30(2) and 31(2) and its correspondence with s 22(1) of the ACL, I also consider that the OD Act provisions are not to be limited to the common law concepts of unconscionability. I therefore accept the submissions made by the applicants in this regard: ACCC v Simply No-Knead (Franchising) Pty Ltd (2000) 104 FCR 253. I also consider, as for ss 21 and 22 of the ACL, that the concept of “unconscionable” in both ss 30(1) and 31(1) is not to be read down in accordance with equitable principles. However, the relevant conduct must still be characterised as unconscionable and based on intentional or reckless acts: ACCC v 4WD Systems Pty Ltd (2003) 200 ALR 491. As was said by Selway J in discussing the scope of the former s 51AC of the TPA in 4WD Systems at pars 184-185: ¶133 [184] The ordinary or dictionary meaning of the word “unconscionable” was explained in Hurley v McDonald's Australia Ltd (2000) ATPR 41-741 at [22]: ¶134 For conduct to be regarded as unconscionable, serious misconduct or something clearly unfair or unreasonable, must be demonstrated — Cameron v Qantas Airways Ltd (1994) 55 FCR 147 at 179. Whatever “unconscionable” means in s 51AB and s 51AC, the term carries the meaning given by the Shorter Oxford English Dictionary, namely, actions showing no regard for conscience, or that are irreconcilable with what is right or reasonable— Qantas Airways Ltd v Cameron (1996) 66 FCR 246 at 262. The various synonyms used in relation to the term “unconscionable” import a pejorative moral judgment— Qantas Airways Ltd v Cameron (1996) 66 FCR 246 at 283–4 and 298. ¶135 [185] In order to find that conduct is “unconscionable” it is necessary to do more than merely show that the behaviour is misleading or deceptive, or otherwise in breach of some other provision of the TPA. What is necessary is to show that the conduct is so unacceptable that it can properly be described as “unconscionable”. Normally it might be expected that behaviour would only be “unconscionable” if some moral fault or responsibility is involved. Normally it might be expected that this would involve either a deliberate act, or at least a reckless act. Mere unreasonableness or unfairness may not be sufficient, at least in the absence of some moral fault. This is why it was critical to the conclusion he reached in Simply No-Knead that Sunberg J was able to find an “overwhelming case of unreasonable, unfair, bullying and thuggish behaviour”. Of course, those words are not a definition of “unconscionable”. But having made that finding it is quite apparent that the behaviour could properly be characterised as “unconscionable”. ¶136 14 Taking appropriate guidance from the TPA and ACL cases, it is first necessary for a hirer under s 30(1) to “engage in conduct”. Unlike in the former TPA, in s 4(2)(a) of the CCA there is a definition of “engage in conduct” which includes “doing or refusing to do any act”. I consider that such a definition provides some assistance and is generally consistent with the ordinary and natural meaning of the phrase to “engage in conduct”. I therefore propose to adopt this approach for present purposes. Also, for the purposes of ss 30(2) and 31(2) of the OD Act, the Tribunal “may have regard to”, without in any way being limited by them, the various factors set out. This simply means the Tribunal may consider or take these matters into account: ACCC v Leelee Pty Ltd [1999] FCA 1121. ¶137 15 For the purposes of s 30, I also take guidance from the TPA and ACL cases as to the general notion of “unconscionable” as referring to conduct or behaviour that is not done in good conscience: ASIC v National Exchange Pty Ltd [2005] FCAFC 226. The courts have, in applying the terms of ss 21 and 22 of the ACL, attempted to describe unconscionable conduct in various ways. In Lexis Nexis Halsbury’s Laws of Australia (at 7 January 2015) “(C) Unconscionable Conduct” [100-263] it is observed that: ¶138 Judges have described unconscionable conduct under section 21 of the ACL as ‘serious misconduct, something clearly unfair or unreasonable',17 ‘[s]howing no regard for conscience; irreconcilable with what is right and reasonable',18 revealing ‘a high level of moral obloquy’,19 being conduct ‘of such a type as to be deserving of significant moral opprobrium’.20 It follows that mere unreasonableness or unfairness is unlikely to be sufficient, at least in the absence of some moral fault.21 Mere reliance on the terms of a contract,22 or a mere breach thereof,23 cannot, without something more, therefore constitute unconscionable conduct; a contravention requires some circumstance other than the mere terms of the contract itself that renders reliance on, or breach of, those terms unconscionable.24 Similarly, debt collection processes, including the threat of proceedings, are not of themselves unconscionable (including when carried out by a debt collector), but may traverse into unconscionability where they involve false assertions.25 ¶139 In each case, the relevant conduct against conscience must be assessed by reference to the norms of the society in issue,26 which conduct is not divorced from the context wherein it occurs.27 ¶140 16 Additionally, whilst it is made in relation to s 20(1) of the ACL, I consider some regard can be had to the following commentary in Lexis Nexis Halsbury’s Laws of Australia (at 7 January 2015) “(C) Unconscionable Conduct” [100-260] when considering the conduct of the parties in this case. It is said: ¶141 In any event, consistent with the ‘unwritten law’, there can be no finding of unconscionable conduct in this context where the parties are experienced operators, accustomed to making commercial judgments, and acutely aware of their own interests and how to advance them.12 A distinction exists between parties who adopt an opportunistic approach to strike a hard bargain and those who act unconscionably.13 ¶142 17 As to the requirement imposed on the parties to negotiate “fairly and in good faith” under s 6 of the Code, no definition is included in the Code in relation to these concepts. However, given that s 6 applies to the negotiation, variation or termination of an OD contract, I consider that the relevant contractual principles in relation to what has become regarded as the “duty of good faith” can provide some assistance. In short, in appropriate cases, this principle imposes a general obligation on parties to a contract to act fairly and reasonably: Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 per Priestley JA at 268. Importantly, and as is recognised in s 6(1) of the Code itself, this does not mean that a party cannot act in its own self-interest: South Sydney District Rugby League Football Club Ltd v News Ltd (2000) 177 ALR 611. 18 In terms of remedies, on a finding of unconscionable conduct by a hirer or an owner-driver under ss 30 or 31 of the OD Act, the Tribunal has a broad range of powers available to it under s 47(4). These include damages (including exemplary damages), and orders in the nature of mandatory or prohibitory injunctions. ¶143 I adopt and apply this approach for the purposes of addressing this limb of Ram Holdings’ claims. ¶144 Turning first to the issue of negotiations for the Agreement. A complete copy of the Deed of Agreement (as tendered by consent after the conclusion of the initial hearing) was exhibit A1. The circumstances leading up to the formation of the Agreement were outlined by Mr Italiano in his evidence. He testified that he saw an advertisement for the sale of a skip truck. Mr Italiano contacted the owner of the vehicle, a Mr Ross. Mr Ross told him that if he was interested to take the matter further, he should go and see a Mr Green, who was the then general manager of Kelair. ¶145 Mr Italiano did go and see Mr Green. He spoke to him about the job and the purchase of the truck. Mr Italiano’s evidence was that Mr Green offered him a five-year contract with Kelair, if Mr Italiano agreed to purchase a new truck. If so, Kelair would make a new skip lifter to fit to the truck. At the same meeting, Mr Green gave Mr Italiano a copy of the Deed. Mr Italiano said that he took it away and spent some time looking at it. He had some questions for Mr Green about it, after considering its terms. ¶146 Mr Italiano met Mr Green for a second time. At that meeting, he asked Mr Green about the skip lifter maintenance fee and whether it was payable when an owner-driver goes on holiday. Also discussed was the clause in the Deed in relation to a contractor failing to work seven consecutive days in a six-month period and how this affected the taking of holidays. Mr Italiano also said that he was given a copy of a separate document, which set out the three rate increases of 5% for each year, starting on 7 March 2011. It seemed common ground that the rates of pay, which were struck on a piecework basis, were negotiated between Kelair and the TWU. ¶147 The evidence of Mr Italiano was that some other matters were discussed with Mr Green. These included the working hours. There was some suggestion on Mr Italiano’s evidence that despite reference in the Deed to the span of hours commencing 4.00 am to 6.00 pm Monday to Saturday inclusive, that he would not be required to work those actual times. Mr Italiano said he made notations and markings on his copy of the Deed, which appear on exhibit A1. Mr Green was not called to give evidence. ¶148 Having considered the terms of the Deed and the issues discussed with Mr Green, Mr Italiano then signed the Deed on behalf of Ram Holdings. ¶149 The contention of Ram Holdings essentially was that because Kelair gave a copy of the Deed to Mr Italiano, and did so on what it said was a “take it or leave it” basis, for the purposes of s 30(2)(i) of the OD Act, this was evidence of a lack of willingness by Kelair to negotiate. This submission must be rejected. It was clear on the evidence that Ram Holdings was provided a copy of the Deed for its consideration. It is a comprehensive document covering terms applicable to the engagement and the performance of services. Mr Italiano took a copy of it and took time to examine it. He had issues which he wished to raise with Mr Green of Kelair. He did subsequently raise those issues with him and they were discussed. ¶150 There was no suggestion on the evidence that Kelair was not prepared to discuss the issues with Mr Italiano. Indeed, the evidence of Mr Italiano was quite to the contrary. Mr Italiano was also given a copy of the rate increases to apply for the ensuing three years. He was offered a five-year term if Ram Holdings would buy a new truck. A new lifter was to be manufactured and installed. These matters were all part of the negotiations between Ram Holdings and Kelair and the bargain that they ultimately struck. These discussions having taken place, Mr Italiano was then content to enter into the Agreement on behalf of Ram Holdings, which he did. ¶151 There was some faint suggestion that Mr Italiano was not that experienced in the transport industry and this in some way impacted on the evaluation of the Deed and the terms of the ultimate Agreement. I do not accept this proposition. The evidence of Mr Italiano was that he had some 10 years’ experience and Ram Holdings was incorporated in 1998. Mr Italiano was far from a novice. ¶152 Finally, it was put on behalf of Ram Holdings that it was also unconscionable for Kelair to fail to provide the information as set out at Appendix 1 to the Code of Conduct. This included the Information Pamphlet and the then current Guideline Rates published by the Road Freight Transport Industry Council. Kelair admitted that this information was not provided to Ram Holdings. To that extent, this constituted a failure to comply with the Code. By s 30(2)(g) of the OD Act, the Tribunal may have regard to the requirements of the Code of Conduct in any claim of unconscionable conduct. A similar provision exists in s 22(2)(h) and (3)(h) of the ACL. ¶153 In accordance with the ordinary and natural meaning of this provision, s 30(2)(g) is directed to the content of the Code and the substantive obligations it imposes on owner-drivers and hirers. These matters, amongst others, such as good faith in negotiations etc., require the documents as specified in s 7 of the Code to be given by a hirer to an owner-driver, prior to the entering into of a contract. ¶154 As noted, Kelair admitted it did not comply with this obligation. It is to be noted that by s 7(2)(a) of the Code, a copy of the Guideline Rates is to be given to an owner-driver by a prospective hirer, irrespective of whether they will apply to the circumstances of the proposed contract. This is plainly intended to enable an owner-driver to undertake a comparison between the method of payment under a proposed contract and an alternative method of payment, such as an hourly payment basis. The consequences of such non-compliance must be assessed by the Tribunal on a case-by-case basis. Section 30(2)(g) does not require a finding of unconscionability in every case of a failure to comply. In this case, the failure to provide the Code requirements of the Information Pamphlet and the Guideline Rates was not merely a technical breach. ¶155 As to the Guideline Rates, given that they are based on per kilometre and hourly rates for various types of heavy vehicles, they would not have provided immediate assistance to Ram Holdings in assessing Kelair’s offer of a contract. This is because Kelair’s business is structured on a piecework payment basis, with owner-drivers paid by the number and type of skip bin movements each day. However, once the performance of the services had commenced, the Guideline Rates could certainly provide a resource to assess the viability of the work performed, by comparing revenue calculated on an hourly basis for example. If hourly revenues are substantially below the Guideline Rates, this may give an owner-driver a legitimate cause for concern as to the ongoing viability of their business. ¶156 Secondly, as to the content of the Information Pamphlet itself, there was nothing on the evidence led by Ram Holdings that not receiving a copy of it, rather than Kelair’s compliance with the obligations imposed by the Code generally, led to any damage or disadvantage to Ram Holdings. The Information Pamphlet is a very general summary of what the hirer/owner-driver regime is about. Whilst useful for parties, for the failure of it to be provided to be a basis of a finding of unconscionability, there would need to be in my view, evidence as to the consequences of the failure to comply. Other than the issue of the failure to provide the Guideline Rates, there was no contention advanced or evidence led in this case, of the consequences of failing to provide the Information Pamphlet. In any event, it seemed that Mr Italiano, from the general tenor of his evidence, had some awareness of what might be Ram Holding’s rights under the OD Act. ¶157 I am therefore persuaded there was an element of unconscionability in relation to the formation of the Agreement, in terms of s 30(2)(g) of the OD Act, in relation to no-compliance with the Code. The Guideline Rates should have been provided to Ram Holdings and they were not. The Tribunal cannot discount the possibility such information would have assisted Ram Holdings in its operations. Otherwise the Tribunal is not persuaded there was any unconscionable conduct by Kelair in relation to the entering into the Agreement. ¶158 The second leg of unconscionability alleged by Ram Holdings was as I have mentioned, in relation to the allocation of work and their locations, relative to other contractors. ¶159 As part of this limb of the argument, Mr Italiano testified that in discussions with Mr Green in relation to the terms of the Deed, prior to signing the Agreement, there was some reference made to areas of work. According to Mr Italiano, the discussion was to the effect that he would start work in the area in which he parked his truck. In Ram Holdings’ case, as Bibra Lake was the area where the truck was parked, he understood work would commence from this location. Mr Italiano understood that “his work area” would generally be from Booragoon up towards Bayswater and the surrounding suburbs. Kelair’s head office is in Bayswater and a disposal site is also located there. ¶160 Mr Italiano described the process of allocation of jobs to contractors by the scheduler, which was not in dispute. He testified that at approximately 5 – 6 pm each day he would receive an email containing “run sheets” for the following day. The run sheets set out the name of the contractor, the date and the customer details with any notations. If all the jobs on the run sheets are completed, a driver could go back to the dispatcher for more work. Additionally, a driver may also get some jobs coming up during the day, in addition to those jobs set out in the run sheets received the previous evening. It was also common ground that it was up to each contractor to plan their day and to make the runs as efficient as possible. “Carry forwards” were entered on the run sheet, where a bin job was not able to be completed on any given day, and it would be completed the following day. Because of the impact of carry forwards on customers, they were to be avoided where possible. ¶161 The allocation system was overseen by the scheduler. Mr Miniello testified that there were four types of services provided by Kelair to customers. They are a delivery bin; an empty/return “deliver and pick up”; an off hire “removal of a full bin”; and callout. On any given day Mr Miniello estimated that drivers may do between six to 10 allocated jobs. ¶162 One of Mr Italiano’s complaints was that on some occasions, he had to travel between one and one and a half hours to get to his first job for the day. Ram Holdings tendered as exhibits A3 to A8, bundles of run sheets. A covering table prepared by Mr Italiano to exhibit A3, was a list of days that he said he had to travel between 30 minutes and one hour to commence work. In the bundles of run sheets tendered into evidence, Mr Italiano said that some contain notations where he had been given extra allocations during a day. Some also contained notations made by Mr Italiano where he had received carry forwards from other drivers, that had been re-allocated to him. He testified that he raised some concerns in relation to his earnings with Mr Mangione in about June 2011. Mr Italiano testified that Mr Mangione told him to speak to the dispatcher about it. At about the same time, Mr Italiano said he happened to see the run sheets of another driver, which showed jobs being much closer together. Mr Italiano said he also spoke to Mr Green, who said that he would “fix” the issue of allocations. ¶163 In about mid-2012, Mr Italiano said he became aware of another tipping station called ECO Resources, which he understood was in the Naval Base area. He testified if he could tip there also, this would substantially reduce his driving distances between jobs, as opposed to using the Bayswater tip. Mr Italiano said that he spoke to the then general manager and was told that the ECO tip was only used by drivers working in the south of the river area. Mr Italiano said that he did do this type of work and said that he was given the address for the ECO tip location. This was about mid-2012. It is fair to assume therefore, that Ram Holdings would have had access to this location as with other drivers from about this time. Also, according to Mr Miniello, he confirmed that Ram Holdings did in fact use the ECO tipping location. ¶164 The upshot of all of this was that Ram Holdings maintained that its efficiency was compromised by these types of allocations, and the scheduling system, which impacted on its revenue and profit. ¶165 In relation to the management of workload generally, Mr Italiano accepted that it was up to owner-drivers to arrange their work day as they saw fit, based on the run sheets given to them by dispatch. He also accepted that the two key aspects of earnings capacity were the rate paid for each type of work and secondly, the volume of work performed. Mr Italiano also accepted that on occasions, he did write words on his run sheets such as “not my area” to indicate some jobs that he considered were outside of the area discussed between himself and Mr Sims. He generally understood from his discussions with Mr Sims, that “his area” would not be past Leach Highway. Mr Italiano denied that he flatly declined to do work allocated outside of this area. However, when it was put to him in the form of exhibit R1, a run sheet for 24 February 2015, that he had written “not my area” on the first two jobs on the sheet, Mr Italiano accepted this is what he wrote. He endeavoured to explain however, that the problem with the two jobs in question was a lack of bins, and not his refusal to perform the work. ¶166 There were two jobs in Palmyra where he handwrote “not my area” on the run sheets, which resulted in those jobs being carry forwards for the next day. He was questioned further about a job in Bibra Lake where Mr Italiano said he was not able to complete the work, because of a lack of bin stock. ¶167 Whilst of the view that Ram Holdings did most of its work south of the river, as he was aware that Mr Italiano lived in the Coogee area, Mr Miniello testified that it did make commercial sense to allocate work to drivers either broadly across south of the river areas or north of the river areas. This was the purpose of cl 10(a) of the Agreement. It is to be noted however, that this is subject to market conditions and was at Kelair’s discretion. Notably also, the terms of cl 10(a) must be read with Ram Holdings’ obligations under cl 6(c), (e) and (f) of the Agreement, requiring it to comply with the directions and requirements of Kelair in relation to the performance of services. ¶168 At the end of the day, Mr Miniello said that it was for Kelair’s scheduler to allocate work to drivers who get the work done. Despite not performing a detailed analysis of Ram Holdings’ run sheets himself, Mr Miniello maintained that from his general knowledge of the manner of performance of work by Ram Holdings over about two years, in conjunction with reports of schedulers, his impression was that Mr Italiano tended to “pick and choose” the work that he performed, at least to some extent. Mr Miniello said in effect, that many of the difficulties alleged by Mr Italiano came back to poor run management and the hours that Ram Holdings chose to work, compared to other drivers. ¶169 In relation to the run sheets and Mr Italiano’s evidence about work allocations, the Tribunal has closely examined the content of exhibits A3 to A8. These documents were the run sheets tendered in evidence by Ram Holdings. There were a lot of them and considerable duplication in the materials tendered. From this analysis, contrary to Mr Italiano’s evidence, it seems to me that most of the jobs on the run sheets in evidence, including the extra handwritten jobs, appeared to be in the southern suburbs or related areas not too far distant. From these run sheets, only a small percentage of them, as a proportion of the overall number of jobs performed on the evidence, reflected work done in the northern suburbs. Furthermore, this work, only appeared on some days in the months from February to August 2011. ¶170 There was no material before the Tribunal over those months, about work done on days other than those which have been selected and tendered in evidence. I note also, that this period in 2011, reflects the evidence which Mr Italiano gave, when he said that he spoke to both Mr Green and Mr Mangione about difficulties he was experiencing with his runs. From the documentary evidence before the Tribunal, it does not appear that this incidence of northern suburbs jobs continued after 2011. If it did, evidence of it is not before me. That is, based on the evidence before the Tribunal, through the run sheets, it does not appear that the same number of northern suburbs jobs appear on run sheets over the period 2012 to March 2015. The only inference that can be reasonably drawn from this is that any discussions that Mr Italiano had with Kelair about his runs at the time in 2011, must have had some influence on subsequent work allocations. If this were not the case, and if Mr Italiano’s concerns about his runs had continued beyond 2011, then the Tribunal would have expected to see pages of run sheets for the latter years, reflecting this. ¶171 The evidence before the Tribunal in relation to the run sheets is broadly consistent with Kelair’s covenant in cl 10(a) of the Agreement. This is qualified as I have mentioned above, having regard to market conditions, and Kelair would provide work to contractors in designated areas as determined by Kelair at its sole discretion. However, it is important also to bear in mind that this covenant of Kelair, is also to be read with and subject to the overriding obligation in cl 6(c), (e) and (f) of the Agreement, which generally requires a contractor to comply with Kelair’s directions in relation to the performance of services in any location as directed by Kelair. ¶172 Returning to Ram Holdings’ contention in relation to this aspect of its claim, it appears to the Tribunal that the allegation may give rise to consideration of ss 30(2)(d), (f) and (j) of the OD Act. Section 30(2)(d) deals with any unfair tactics being used against an owner-driver by a hirer; s 30(2)(f) refers to the consistency in conduct of a hirer to an owner-driver relative to other owner-drivers; and s 30(2)(j) provides generally for the obligation on a hirer to act in good faith. These parts of the unconscionable conduct provisions in s 30, are in addition to the general notion of unconscionability dealt with in s 30(1), all of which were considered by the Tribunal in some detail in Sims, as set out above. [Consideration] ¶173 There are considerable difficulties facing Ram Holdings in relation to this allegation on the evidence. In relation to the allocation of work generally, the Tribunal only has before it the direct evidence of Ram Holdings as to the allocation of work to it. There was some general reference in Mr Italiano’s evidence to having occasionally seen other drivers’ run sheets, and observed some of them, which he sought to describe as having more favourable work allocations. However, there was no direct evidence before the Tribunal of the actual work activities and run allocations of other owner-drivers engaged by Kelair at the material time, relevant to Ram Holdings’ claims. Mr Italiano’s general evidence about these matters must also be regarded as largely hearsay in any event. It could not be tested by Kelair in any meaningful sense. Furthermore, for the Tribunal to undertake a proper and thorough analysis of the contentions, by way of a comparator, such evidence would be necessary. ¶174 That is, to the extent that Ram Holdings alleges Kelair engaged in unfair tactics or different conduct towards it or in some way acted in bad faith, begs the question, relative to what or to whom? In the absence of a comparator(s), involving evidence as to the activities, allocations etc. of other owner-drivers, the Tribunal is put in the position of having to assess Ram Holdings’ contentions largely in a vacuum. For example, if there was direct evidence, obtained in the usual way, as to the work of other owner-drivers engaged by Kelair at the material time, which showed that in all or most cases they were consistently limited to specific work areas and never worked outside of them and all were given very close and convenient jobs, throughout their entire engagements, then the Tribunal may be able to infer a deliberate pattern of conduct towards Ram Holdings, to single it out in relation to the allocation of work. In the absence of such comparative evidence, the Tribunal is simply unable to make any proper or thorough assessment of the evidence to reach such a conclusion. ¶175 Furthermore, in any event, even though Mr Green was not called to give evidence, if the Tribunal accepted that Mr Green, prior to the engagement of Ram Holdings under the Agreement, gave some indication of the area of work to be performed by Ram Holdings, that was always going to be subject to the express terms of the Agreement, which I have referred to above. In all the circumstances, the Tribunal simply cannot reach the conclusion that the method or type of work allocated to Ram Holdings by Kelair supports a conclusion that it acted unconscionably. ¶176 There was also a submission made by Ram Holdings that Kelair’s failure to call its scheduler Mr Loriso in relation to the allocation of work, gave rise to a Jones v Dunkel inference. The submission was made that Kelair did not call Mr Loriso because his evidence would not assist its case. In my view, no Jones v Dunkel inference is open in this case. There are principles which apply to the rule in Jones v Dunkel (See Heydon JD, Cross on Evidence (Australian Edition) (2002) par [1215]. One of them is that the rule only applies in the event where a party is “required to explain or contradict something”: Jones v Dunkel (1959) 101 CLR 298 at 321. As the learned authors of Cross on Evidence point out, “if there was no issue between the parties on a matter, there is nothing to answer; and if there is an issue between them, but the party bearing the burden of proof has tendered no evidence of it, the opponent is not required to answer.” ¶177 Similarly, if an opponent reaches the view that the party carrying the burden of proof has failed to establish and make good its contentions, on the evidence before a court or tribunal, then that party is entitled to not call a witness it considers unnecessary to call, and no Jones v Dunkel inference should be drawn from that situation. In any event, counsel for Kelair informed the Tribunal that the evidence that was to be led from Mr Loriso had been adequately dealt with in the evidence of Messrs Miniello and Mangione and it was not therefore necessary to call him. This is another basis for resisting the drawing of a Jones v Dunkel inference. [Safe and sustainable rates] ¶178 The final aspect of the case advanced by Ram Holdings relates to an allegation that Kelair failed to pay Ram Holdings safe and sustainable rates. The Tribunal turns to consider that issue now. [Jurisdiction] ¶179 In Kelair’s submissions before the Tribunal, an issue was raised as to the Tribunal’s jurisdiction to hear and determine a claim by an owner-driver in relation to safe and sustainable rates of pay. I first turn to the relevant statutory provisions. By s 27(1)(b) of the OD Act, regulations prescribing a code of conduct that are made by the Governor, may require a hirer to pay an owner-driver for services provided under a contract at a “safe and sustainable rate of payment”. The Code may further provide for how a safe and sustainable rate of pay may be determined. By s 27(1)(f), a code of conduct may enable the Council to publish guideline rates of pay for purposes including the purpose of assisting the Tribunal in determining whether payments to an owner-driver that have been made were or are at a safe and sustainable rate. Furthermore, ss 27(3) and (4) of the OD Act specifies the content of the guideline rates to be made by the Council under the Code. ¶180 Firstly, the guideline rates are to specify the class of owner-driver and the type of vehicle and equipment operated and secondly, to incorporate information regarding typical fixed and variable overhead costs for that class of owner-driver, vehicle and equipment and the base hourly rate of pay that would typically apply to that class of work performed if done by an employee driver. The concept of “fixed and variable overhead costs” is expanded upon in s 27(4), setting out the components to be included, without limitation. ¶181 By s 40(b) of the OD Act, an owner-driver or hirer with a sufficient interest in the matter, may refer a “dispute” arising “under or in relation to” the OD Act, the Code or an allegation of a breach of either. By s 37(1) a “dispute” means one arising “under or in relation to” (which are words of great breadth) the OD Act, the Code or an owner-driver contract and includes an allegation that a person has contravened any or all such obligations. By s 38(1)(a) of the OD Act the Tribunal is empowered to “hear and determine disputes” (as defined in s 37(1)). ¶182 It is also relevant to have regard to the purposes and objects of the legislation. As noted earlier in these reasons, the long title to the OD Act includes a purpose of the legislation “to promote a safe and sustainable road freight transport industry by regulating the relationship between persons who enter into contracts to transport goods in heavy vehicles and persons who hire them to do so; …” Sections 26 and 27 of the OD Act are clearly intended to be directed to that purpose. Furthermore, depending upon the circumstances of the case, the failure to pay a safe and sustainable rate may be “unconscionable conduct” for the purposes of ss 30(1); 30(2)(e), (g) and (k) of the OD Act. ¶183 As on the facts of this case, the contract between Ram Holdings and Kelair must be taken to have included the agreed rates of pay to apply for the first three years of the Agreement, such rates of pay must be regarded as part of the dispute “between one or more owner-drivers and one or more hirers arising under or in relation to … an owner-driver contract”. The relevant dispute for the purposes of ss 37 and 38 of the OD Act, is whether the rates paid were “safe and sustainable”. ¶184 Turning to the Code, the terms of s 2 provide that the purpose of the Code is to give effect to ss 26 and 27 of the OD Act. As I have already mentioned, s 27(1)(f)(ii) provides for the guideline rates to assist the Tribunal in determining whether a rate paid is a safe and sustainable rate. Furthermore, by s 7 of the Code, certain information is to be given by a hirer to an owner-driver before a contract is formed. That information includes current guideline rates, whether applicable to the proposed contract or not, and the information pamphlet at Appendix 1. By s 8 of the Code, reference is made to the publication of guideline rates by the Council, contemplated by s 27 of the OD Act, and their use by the Tribunal “when it is determining whether payments have been made at a safe and sustainable rate; …” ¶185 Therefore, I am satisfied that the Tribunal has ample jurisdiction and power to deal with the dispute as to whether rates of pay payable by Kelair to Ram Holdings under the Agreement were safe and sustainable rates. [What is “a safe and sustainable rate”?] ¶186 There is no definition in either the OD Act or the Code as to the meaning of a “safe and sustainable rate”. “Guideline Rates” are defined in s 3 as “rates of payment published in accordance with section 27(1)(f)”. Given the purposes and objects of the OD Act and the Code, and having regard to the provisions to which I have already referred, it would be reasonable to conclude, as a general proposition, subject to what I say immediately below, that a “safe and sustainable rate” is a rate of payment for an owner-driver that provides a competent business operator a reasonable income allowing for the owner-driver’s fixed and variable costs of operation. ¶187 Whilst the Appendix 1 – Information Pamphlet, attached to the Code, also does not refer to the concept of “safe and sustainable rates” in definitional terms, further published material by the Department of Transport, in support of and as an expansion of the information contained in the Pamphlet, is of some assistance. The “Information Booklet” described as a “more detailed version” of the Information Pamphlet, contains a useful summary of the provisions of the OD Act and the Code of Conduct. It also provides useful guidance to owner-drivers and hirers in relation to operating a business as an owner-driver. Part A – The Act and Code of Conduct at pages 13-15, discusses the concept of “safe and sustainable rates”. The Tribunal regards that discussion as useful and intends to adopt and apply some of it for the purposes of these reasons. I therefore consider that for the purposes of the OD Act and the Code, “a safe and sustainable rate” for an owner-driver will generally– provide a fair return for the owner-driver’s labour; enable the recovery of an owner-driver’s fixed and variable costs reasonably incurred in the performance of services; and provide a reasonable return on the owner-driver’s capital investment. ¶188 As to the first element of a fair return on an owner-driver’s labour input, this may be usefully assessed against the relevant rate of pay payable for an employed driver undertaking the same kind of work. As noted earlier in these reasons, the employee rate of pay is a matter to be considered in the preparation of guideline rates in any event. As to the second element of fixed and variable costs, this is specified in s 27(4) of the OD Act, also referred to above. As to the final element of a reasonable return on an owner-driver’s capital investment, this would usually include matters such as the amount of capital invested in vehicles and equipment; the length and security of any contractual arrangement with a hirer; and how efficient the owner-driver is in the conduct of its operations, amongst other matters. ¶189 What is a safe and sustainable rate in any given case, will depend upon the nature of the road transport work to be performed. The role of guideline rates is not to set minimum or maximum rates to be paid to owner-drivers. Agreed rates are a function of the market. However, as the legislation and the Code make clear, guideline rates are available to be used as a guide by the Tribunal, to determine if rates paid are safe and sustainable, in any case before it. The Tribunal will be required to take different factors into account in its assessment. ¶190 Based on the requirements of ss 27(3) and (4) of the OD Act, guideline rates encompass the first two elements of the assessment of a safe and sustainable rate discussed above and are a good starting point to assess the claims made by Ram Holdings in these proceedings. [The claim] ¶191 Ram Holdings’ claim in relation to safe and sustainable rates was to the effect that the rates paid, in conjunction with the methodology of work allocation meant that Ram Holdings’ business was for much of the term of the Agreement, not sustainable. Furthermore, Ram Holdings contended that the position in relation to rates of pay was compounded by the fact that the Agreement contained no provision for adjustments of rates to reflect changes in costs over the life of the five-year Agreement. In this respect, Ram Holdings contended that when the request to adjust rates was made in 2014, Kelair refused to consider any changes. [The evidence] ¶192 The safe and sustainable rates claim was in most parts supported by a report prepared by Mercia Taxation and Accounting Pty Ltd and the evidence of Mr Lambe, Mercia’s managing director. A copy of the Report was tendered as exhibit A16. The Report was dated 21 February 2017 and was prepared from materials provided by Ram Holdings including financial accounts prepared on behalf of Ram Holdings and the Italiano Family Trust prepared by Star Tax & Accounting Services Pty Ltd. Star Tax & Accounting has been responsible for the preparation of Ram Holdings’ accounts in the usual course of business. ¶193 Mr Lambe gave evidence in relation to the Report. Mr Lambe is a Certified Practising Accountant and has a degree in economics and 20 years’ experience in accounting practice. Mr Lambe is also experienced in the preparation of financial statements and reports for use in proceedings such as these. Mr Lambe testified that he has prepared similar material for example, for use in family court proceedings in relation to the valuation of assets, businesses and loan arrangements. The Tribunal is satisfied from the subject matter, content of the Report and Mr Lambe’s qualifications and experience and field of practice, that his evidence qualifies as expert opinion to assist the Tribunal in relation to this aspect of Ram Holdings’ claim. ¶194 Mr Lambe testified as to the background to the preparation of the Report and the request by Mr Italiano for assistance in relation to his claim against Kelair. Mr Italiano provided Mr Lambe with his sets of accounts prepared by Star Tax & Accounting. This material needed to be revised as the final reports for the Italiano Family Trust contained some information not relevant to the operation of the Hino truck used by Ram Holdings in the performance of services for Kelair. Mr Lambe said that using the source of information provided by Ram Holdings and the Council’s Owner-Driver’s Costs Calculator, Mercia made key findings in its Report. Mr Lambe’s testimony was that both the Star Tax & Accounting material and the Mercia Report were prepared in accordance with accepted accounting principles. ¶195 The first finding in the Report was in relation to typical fixed overhead costs for the five financial years 30 June 2011 to 30 June 2015 for Ram Holdings, calculated in accordance with s 27(3)(b)(i) of the OD Act, referred to earlier in these reasons. From the material provided, this led to the calculation of a total sum of $666,676 over the period, and as set out at page 2 of Appendix 1 to the Report. The second finding was in relation to typical variable overhead costs over the same period, in the total sum of $181,487. This was set out at page 3 of Appendix 1 to the Report. The third finding was the equivalent hourly rate and estimated total ordinary and overtime hours of work if performed by an employee at the rate of between $22.50 per hour in 2011 and $25.50 per hour in 2015. This was set out at Appendix 6 to the Report. ¶196 Based on those findings and Mercia’s review of the material provided by Ram Holdings, the deficit over the sustainable rate, set out on the cost of operations work sheet, at Appendix 1 to the Report, was a total of $314,107. This was based on revenue over the five years of $534,056, less the fixed and variable costs as stated. An alternative deficit over the sustainable rate of $216,619 was also included in the Report. This figure was reached on the basis that the calculations performed in accordance with the Council’s Cost Calculator included a cost relating to a replacement cost of a truck in the amount of $97,488. In the notes to the Report, Mercia posited the alternative deficit by not including the cost of the replacement truck. ¶197 Mr Lambe testified that Mercia concluded in its Report, that on a review in accordance with accepted accounting principles, the material provided by Ram Holdings in relation to typical fixed overhead costs, typical variable overhead costs and the comparison employee equivalent labour only cost were reasonable and sound calculations. Mercia noted that some items in the calculations had not been sourced from Ram Holdings’ accounts material or based on invoices supplied by Ram Holdings. These included rent or home office expenses obtained from the Cost Calculator and employee benefits based on industry hourly rates obtained by Mr Italiano from the TWU. Additionally, the total finance costs and return on investment to Ram Holdings from the purchase of the Hino vehicle for $162,292 was calculated in accordance with the Cost Calculator. In relation to typical variable overhead costs, as provided by Ram Holdings, Mr Lambe noted in the Report that adjustments had been made to the figures prepared by Star Tax & Accounting, to remove any costs associated with vehicles other than the Hino truck used by Ram Holdings in the performance of the services. These costs included fuel costs and vehicle repairs. ¶198 The content of the Mercia Report and the evidence of Mr Lambe was the subject of some criticism by Mr Miniello, who is also an accountant by profession. Mr Miniello maintained that it was not appropriate to use the Cost Calculator to retrospectively analyse costs. In his view, the purpose of the Cost Calculator tool was to assist an owner-driver to decide whether to enter into an owner-driver contract and not to assess a contract after it has operated. ¶199 Secondly, Mr Miniello considered that some costs referred to in Appendix 1 of the Mercia Report were too high. These included matters such as accounting fees; rental (home office) expenses; postage and stationery; and telecommunications costs. Mr Miniello also had some reservations about fuel costs, particularly in the 2014 year, when the kilometres recorded by Ram Holdings substantially fell, but the fuel costs fell by much less. Furthermore, Mr Miniello also commented on the profit and loss statements attached to the Mercia Report. In Mr Miniello’s view, over some of the years these reports show considerable profitability for Ram Holdings. It is to be noted however, that the evidence of Mr Italiano was that for the period Ram Holdings performed services for Kelair under the Agreement, he made no drawings of income. This is reflected in the profit and loss statement. ¶200 In an overall sense, Mr Miniello also maintained his view that most of Ram Holdings’ difficulties with earnings stem from its lack of working hours as well as its failure to work on Saturdays, in conjunction with poor run management. ¶201 Having seen and observed the witnesses giving their evidence I found Mr Lambe to be an impressive witness. He was well qualified to give the evidence that he did. Mr Lambe cogently explained the basis for the Mercia Report. I accept that the Report was prepared in accordance with sound methodology and consistent with accepted accounting principles The Report contained appropriate qualifications as set out in the notes and as was the subject of Mr Lambe’s testimony. As to the criticisms raised by Mr Miniello that some of the costs in the Report seemed to be too high, in the absence of the source data used in the generation of the Report being before the Tribunal, there may be some warrant to apply a contingency to take these matters into account. ¶202 In further proceedings before the Tribunal, which I deal with in more detail below, the Mercia Report was amended by Ram Holdings by the substitution of a revised Appendix 6. This altered some assumptions used, notably the hours worked by Ram Holdings. The hours were reduced quite significantly. Additionally, some revenue was brought to account through using a different accounting principle. This alteration led to a substantial downward revision of the deficit over sustainable rate from the original figure of $314,107 to $166,427. ¶203 In relation to the use by Mercia of the Cost Calculator, I do not accept that it may only be used by owner-drivers for the purposes of considering whether to enter into an owner-driver contract. The Tribunal considers that it is quite appropriate for an owner-driver to have regard to the Cost Calculator under an ongoing owner-driver contract, to monitor costs to ensure that an owner-driver’s business remains viable. In the context of the type of business operated by Kelair and the terms of the Agreement, it is difficult to envisage how an owner-driver may determine whether the rates payable to it are safe and sustainable, other than being based on some experience of the operation and provision of services. ¶204 However, whilst the information obtained using the costs calculator will be useful for an owner-driver to keep abreast of vehicle and administration costs, as a matter of jurisdiction and power, the OD Act sets out what the Tribunal may have regard to in the assessment of whether rates paid to an owner-driver by a hirer are safe and sustainable. This is set out in s 27(1)(f)(ii) of the OD Act and s 8(1)(a)(ii) of the Code. As these provisions make clear, the Tribunal can have regard to the Guideline Rates when determining whether payments made to an owner-driver “have been made at a safe and sustainable rate”. This necessarily requires a “looking back” approach. The Guideline Rates published by the Council and Gazetted, have the status of delegated legislation for the purposes of the Interpretation Act 1984. Calculations that may be drawn from the costs calculator, whilst a useful tool, have no such legislative underpinning. Thus, whilst the Tribunal may have regard to such material, as part of informing itself as it sees fit under s 43(1)(b) of the OD Act, primacy must be given to the statutory guidance afforded to the Tribunal. ¶205 The Tribunal carefully examined Appendix 1 to the Mercia Report and performed a simple preliminary calculation of Ram Holdings’ revenue on a per hour basis (total revenue/total hours). Indeed, this was a course proposed by Kelair itself, in its submissions critical of the Mercia Report, as part of examining whether rates paid to Ram Holdings were safe and sustainable. In table form, as compared to both the relevant Council and TWU Guideline Rates, this was as follows: Table 1 Rate per hour/per km (ex GST) 2015 Ram Holdings : $3.03 Council Guideline Rate 22.5 GVM : - TWU Guideline Rate 22.5 GVM : - ¶206 As to the Guideline Rates, there were none published for 2014 and 2015. The Guideline Rates for 2013 are described as provisional, although no further rates were published for those years. The main industry union, the TWU, also publishes guideline rates for the guidance of owner-drivers and hirers in the industry. Where published, the TWU Guideline Rates are derived from the Council rates. In the years where there are no Council rates published, they are derived using an independent consultant and adopt the same formula and largely the same format as the Council rates. Where both have been published, the variation between them is relatively minor. ¶207 In accordance with s 43(1)(b) of the OD Act, the Tribunal may inform itself as it sees fit and is not bound by the rules of evidence. Additionally, where the Tribunal intends to consider matters or information not raised in the proceedings before it, it shall afford the parties an opportunity to be heard. By letter of 10 May 2017, my Associate on my direction, wrote to the parties to inform them that in the absence of Council rates for 2014 and 2015, the Tribunal was proposing to have regard to the TWU rates as a point of comparison, and invited them to express any views they may wish to within 14 days. ¶208 Ram Holdings responded on 17 May 2017 to the effect that whilst no objection was raised in relation to the TWU rates themselves, except for the Council rates for July 2010, the rates for 22.5 GVM vehicles apply to two axle trucks and not three axle trucks, as was Ram Holdings’. Ram Holdings submitted that the rates in 2010 for this type of vehicle exceeded the rate proposed for 2016. It contended that the rates for a three-axle truck would be higher and thus some caution should be applied in relation to the rates because of this. ¶209 As to the contention by Ram Holdings about the three-axle rate for a 22.5 GVM truck, it needs to be borne in mind that the Council rates for 2010 is the only publication in which the rates were inclusive of GST. Thus, a true comparison between them needs to take this into account. The hourly rate for 2010 for a 22.5 GVM vehicle, exclusive of GST, was $66.83 per hour and not $74.25 Also, it is the case that as costs rise and fall, the rates are adjusted accordingly. Whilst the point made by Ram Holdings may have some impact on the rates, when adjusted as just mentioned, the differential may not be as great as contended. ¶210 By letter of 24 May 2017, Kelair made further initial submissions. Firstly, Kelair submitted that the Tribunal should pay no regard to the TWU rates as they do not have the same status under the OD Act as the guideline rates published by the Council. The submission was that Council rates have the status of subsidiary legislation under s 8(2) of the Code and thus Parliament intended them to have statutory effect. On the other hand, the TWU rates have no such status and the submission was that the Tribunal should not have regard to them, given the statutory standing afforded to the Council rates. To do so would be to act outside of the legislative framework, as the submission went. ¶211 The second basis on which Kelair maintained no regard should be had to the TWU rates was that the piecework rates applicable under the Agreement, at least for the first three years of its term, were negotiated between Kelair and the TWU. The submission was that this carries with it the assumption, (although no evidence was led to establish this), the rates agreed had regard to the nature of the industry, the type of work undertaken and the typical fixed and variable overhead costs that may be incurred by an owner-driver engaged by Kelair. The submission was that the Tribunal should regard the rates as “sanctioned” by the TWU, as appropriate rates for this piecework operation. ¶212 Thirdly, in the alternative, Kelair submitted that if the Tribunal does have regard to the TWU rates, then it should consider the background context and circumstances of the present case. The submission was made that as the Council rates do not prescribe minimum or maximum rates, then if account is to be taken of the TWU rates, they should be similarly regarded. Furthermore, the submission was that given that Kelair operated under a piecework payment system with its owner-drivers, an hourly rate comparison may not provide an accurate assessment as to what could have been paid and what was in fact paid to Ram Holdings. ¶213 Further submissions were made by Kelair essentially repeating submissions it made in the proceedings, that Ram Holdings’ revenue was a function of its failure to work available hours to it and that it freely agreed to enter into the Agreement at the outset. As these matters went beyond the scope of the invitation to the parties, the Tribunal will not have regard to these further repetitive submissions. ¶214 Finally, in answer to Ram Holdings’ response to the letter from my Associate, Kelair submitted that the contention that Ram Holdings operated a three axle 22.5 GVM vehicle and accordingly, the Tribunal should infer a higher rate applicable, had no basis. Kelair submitted that for the Tribunal to reach such a conclusion, would be to substitute the exercise of its jurisdiction for that of the Council in circumstances where there is no sound basis to do so. I agree with this submission. ¶215 After receipt of the above correspondence from the parties, on 31 May 2017 the Tribunal re-listed the application for further mention. At the hearing the Tribunal raised issues with the parties, including how the rates paid by Kelair were determined and an opportunity was given to the parties to respond to the Tribunal’s provisional assessment of hourly rates by way of a calculation of total revenue against total hours of work, as mentioned at par 178 above and as set out in table 1. Furthermore, the Tribunal informed the parties that from its own inquiries, the TWU Rates were prepared using the same methodology as used by the Council and were prepared by a former officer of the Department of Transport, involved in the preparation of the guideline rates. Directions were made in relation to the filing of further written submissions on these matters. ¶216 On 21 June 2017 Ram Holdings filed further written submissions in relation to whether the Tribunal should have regard to the TWU Rates; in response to matters raised by Kelair about the rates as “negotiated by the TWU; and additional contentions as to why it maintains the rates paid to Ram Holdings were not safe and sustainable. ¶217 On 22 June 2017 Kelair filed further written submissions along with a further detailed witness statement from Mr Miniello, with annexures, going to the issue of its assessment of the Tribunal’s preliminary assessment of a comparison between the rates paid to Ram Holdings and the Council rates and TWU Rates, as referred to by the Tribunal at the for-mention hearing on 31 May 2017. ¶218 Shortly thereafter, on 31 July 2017, Ram Holdings made application to the Tribunal for further and better discovery of documents, based on the content of Mr Miniello’s further witness statement. That application was the subject of reasons for decision and orders of the Tribunal of 11 August 2017, requiring Kelair to produce certain documents to Ram Holdings: [2017] WAIRC 00715; [2017] WAIRC 00716. Also, directions were made for Ram Holdings to file and serve a witness statement in reply to the further witness statement of Mr Miniello: [2017] WAIRC 00712. On 17 August 2017 a witness statement was filed by Mr Italiano. A further witness statement was filed by Mr Italiano on 6 November 2017. ¶219 Whilst the Tribunal re-listed the matter for further hearing on 7 August 2017 so the parties could be heard in relation to the further evidence and submissions filed, due to an injury sustained by Mr Italiano, the matter could not ultimately be re-listed until 21 November 2017. I was also on prearranged leave from early December 2017 to early January 2018. I have set out the above chronology in order that it can be appreciated why the ultimate determination of these proceedings has been somewhat protracted. [Further evidence and submissions] ¶220 Kelair made a general submission that, on further reflection, the Tribunal can have regard to the TWU rates based on the information received by the Tribunal as to how those rates were calculated, using the same or similar methodology undertaken by the Council. Furthermore, Kelair submitted that there is a degree of consistency between the TWU rates and the Council rates to overcome the absence of the latter for the years 2011, 2014 and 2015. ¶221 In relation to this however, Kelair reiterated its earlier position before the Tribunal that the use of hourly rates generally, are of little value in assessing whether remuneration paid on a piecework rate basis, is safe and sustainable. If this submission is not accepted by the Tribunal, Kelair further submitted that both the Council rates and the TWU rates should not be regarded as minimum or maximum rates that are required to be observed by hirers and owner-drivers. The rates as published, are to provide guidance only to the Tribunal and are not in and of themselves, determinative on the issue of what is a safe and sustainable rate in this industry. Finally, Kelair made the further submission that should the Tribunal wish to examine the Council rates relative to the earnings received by Ram Holdings, then a sound evidentiary basis needs to be established for such a comparison. ¶222 In this respect, Mr Miniello’s further witness statement, with its various annexures, sets out in greater detail, this assessment in Kelair’s view. Mr Miniello’s further witness statement was responsive to the calculations undertaken by the Tribunal, on a tentative basis, comparing Ram Holdings’ hourly rate income to the Council rates and the TWU rates for the years 2011 to 2015 as in Table 1 above. Kelair did not take any issue with the methodology adopted by the Tribunal in its initial assessment, or the revenue figures on which the assessment was based over the years 2011 to 2014. However, on the evidence of Mr Miniello, an account reconciliation was undertaken in relation to payments made to Ram Holdings by Kelair for the financial year 2014 – 2015. This analysis revealed an amount of $11,100 was paid to Ram Holdings but was not included in the Mercia Report as revenue received. ¶223 The following is a summary of Mr Miniello’s further witness statement and the methodology adopted by him in undertaking a further evaluation of the Tribunal’s preliminary assessment of hourly income rates and per kilometre rates, based on both the Council Rates and the TWU Rates. Mr Miniello testified that following the for-mention proceedings before the Tribunal, he further reviewed the Mercia Report, regarding the stated hours of work from Ram Holdings in Appendix 6 of the Report. Using that information, Mr Miniello said that he then examined the records of Kelair in relation to days worked by Ram Holdings to determine whether the reported hours in the Mercia Report were an accurate reflection of the actual working hours as stated by Ram Holdings. From his assessment of the records held by Kelair, it was Mr Miniello’s view that there was an overstatement of the hours of work by Ram Holdings over the years of service by Ram Holdings as set out in the Mercia Report. Furthermore, Mr Miniello said that from this material, he further reviewed the provisional table provided by the Tribunal to the parties at the for-mention hearing, from the records held by Kelair. ¶224 Mr Miniello also testified that he performed an account reconciliation in relation to invoices received from and payments to Ram Holdings, which led Mr Miniello to conclude that in the final year of service, amounts paid by Kelair were not included in the material before the Tribunal to date. ¶225 In relation to the further evaluation undertaken by Mr Miniello, he set out his methodology as follows. Firstly, he assessed the Tribunal’s calculations in relation to Ram Holdings set out in Table 1 provided to the parties at the for-mention hearing on 31 May 2017. Next, he assessed what variables were required to be investigated to confirm the accuracy of the rates determined and how that could be done. Thirdly, Mr Miniello sought to independently verify the variables referred to in the second step, including having regard to Mr Italiano’s testimony. Fourthly, based on the initial three steps, Mr Miniello undertook a reappraisal of the Tribunal’s initial assessment set out in Table 1, where there existed in Mr Miniello’s view, verifiable but conflicting data. Finally, he said that he undertook a comparison of the final rates determined using this process, with a benchmark to further confirm the credibility of his calculations and assessments. ¶226 In terms of assessing the variables to be investigated, based upon the tentative approach adopted by the Tribunal in Table 1, Mr Miniello said that verification was required in relation to three issues; they were Ram Holdings’ total revenue, total hours worked and total kilometres driven. In relation to total revenue, Mr Miniello testified that he undertook a reconciliation of revenue as provided in evidence by Ram Holdings, as against the reported expenditure in Kelair’s accounts for each of the years of Ram Holdings’ engagement. ¶227 In relation to total hours worked, Mr Miniello referred to Appendix 6 of the Mercia Report which led to a break-down of total hours as proposed by Mr Italiano, expressed in table form in his witness statement of 22 June 2017 at par 19. ¶228 Mr Miniello testified that it was not feasible to confirm and verify Ram Holdings’ hours of work by examining every run sheet given there would be approximately 800 of them. Instead, the actual days worked by Ram Holdings were identified from Kelair’s records called “Driver Invoice Check Report” which records days worked and days not worked by a contractor. Copies of the Driver Invoice Check Reports for Ram Holdings were Annexure JM-1 to Mr Miniello’s witness statement of 22 June 2017. Mr Miniello said from this material, a calculation could be performed by multiplying the days worked against the hours set out by Ram Holdings in Appendix 6, with appropriate adjustments for having regard to Mr Italiano’s evidence and other assumptions, including the taking of meal and fatigue breaks. Mr Miniello said that he discounted attempting to verify total kilometres driven, as to do so without supporting documents would be inherently difficult. Kelair’s focus was on the working hours and hourly rates to be considered by the Tribunal. ¶229 Mr Miniello testified that when considering the financial records of Kelair and comparing them to Ram Holdings’ reported income in Appendix 1 in the Mercia Report, a discrepancy was present. This is because Ram Holdings applied a “cash received” approach in relation to income recording, as opposed to recording income on an “accruals” basis. The effect of this method was that income earned by Ram Holdings before the end of a financial year, but not received until after the end of the financial year, was only disclosed in the next financial year’s results. From the occurrent reconciliation, Mr Miniello concluded that an amount of $11,100 had not been disclosed in Ram Holdings’ documents as income for 30 June 2015. ¶230 Turning to total hours worked, Mr Miniello said that he printed out reports for Ram Holdings over the period December 2010 to the last day Ram Holdings worked in March 2015 to verify that Ram Holdings did not work on a public holiday; which business working days (Monday to Friday) that Ram Holdings did not work, excluding public holidays; confirming the Saturdays that Ram Holdings did work; and an estimate of the hours worked on those Saturdays. In relation to the latter, that is estimating the number of hours worked on Saturdays, Mr Miniello said that he considered the type of job performed and a “rule of thumb” for the performance of each of those tasks. Those tasks or jobs include a delivery, empty/return or off hire. Mr Miniello said that he allowed half an hour for a delivery or off hire, and one hour for an empty/return. Taking as an example a driver job report for 29 January 2011 from Ram Holdings, four jobs were reported including two empty/returns and two deliveries. Mr Miniello therefore estimated that this would have taken three hours to complete. Once having undertaken this analysis, Mr Miniello said that he was able to make an assessment comparison of business day weeks worked and total Saturday hours worked by Ram Holdings as compared to that proposed in Appendix 6 of the Mercia Report. Mr Miniello compiled a table setting out this information at par 37 of his witness statement of 22 June 2017. ¶231 From this point, Mr Miniello turned to consider an assessment of average hours per week that Ram Holdings worked for Kelair. Mr Miniello did this by considering the working hours set out in Appendix 6 based on Mr Italiano’s initial evidence. Furthermore, Mr Miniello said that once that assessment was completed, he reviewed the results against a comparable driver working with Kelair to assess the reasonableness of his calculations. Mr Miniello said that this would be an objective way to confirm the accuracy of average weekly hours worked, given that the total working weeks figure would be accurate. In this respect, Mr Miniello referred to Mr Italiano’s initial evidence that he would not start work until 7:00am because it was against council regulations to attend sites prior to that time. He also referred to Mr Italiano’s evidence that as tips would close by 4:30pm, he would need to arrange his working day to arrive at the tip before that time. On this basis Mr Miniello estimated that Ram Holdings’ maximum working hours would be 9.5 to 10 hours per day. Additionally, factored into these working hours, were a lunch break of half an hour to one hour per day and a fatigue break of between half an hour and one hour each day. ¶232 Using this revised information, Mr Miniello considered that the hours reported by Ram Holdings in Appendix 6 should be adjusted. A table prepared by Mr Miniello comparing his calculations with that set out in Appendix 6 was at par 43 of his witness statement of 22 June 2017. ¶233 Having reached this point, Mr Miniello then said he recalculated the hourly rates using the data that he had compiled. The hourly rates recalculated, in accordance with the above methodology, were then compared with the rates set out in Table 1 as referred to by the Tribunal in the for-mention proceedings. A table setting out the workings of Mr Miniello in relation to hourly rates as finally assessed by him, was at par 45 of his witness statement of 22 June 2017. ¶234 In addition to the above process, Mr Miniello said that, as a cross check, he sought to compare the rates as evaluated against a similar subcontractor to Kelair Holdings, Crestflow Pty Ltd. Mr Miniello adopted the similar procedure to his analysis of Ram Holdings’ revenue and working hours to make the relevant comparisons. Given that Ram Holdings had already given evidence in the Tribunal concerning its working hours and its various calculations as set out in Appendix 6 in the Mercia Report, Mr Miniello said he applied a higher estimate of weekday working hours to Crestflow’s calculations than was applied to Ram Holdings. The effect of this would be to lower the assessed hourly rate for Crestflow than for Ram Holdings. It would also confirm that Ram Holdings worked less hours per week than Crestflow. On these comparisons, the comparative hourly rates for Crestflow and Ram Holdings were set out by Mr Miniello in a further table in Mr Miniello’s witness statement at par 56. ¶235 When compared back to the provisional calculations by the Tribunal as set out in Table 1, with Ram Holdings’ reassessed hourly rate, according to Mr Miniello, the result is as follows: ¶236 Mr Italiano in a further witness statement filed on 17 August 2017, in reply to that of Mr Miniello, asserted that dealing firstly with Mr Miniello’s evidence regarding the total kilometres travelled by Ram Holdings’ truck, that is not correct. Mr Italiano referred to the Mercia Report in which, as set out at Appendix 1, the total kilometres travelled as recorded in the vehicle log books are set out. Mr Italiano said that this evidence was not challenged and that he verified that the truck used by Ram Holdings was only used for the purposes of providing services to Kelair under the contract. At all times when not in use providing services, the vehicle was parked in its usual parking place at Bibra Lake. The only occasion when the usage of the truck was not related to the provision of services to Kelair was when it was taken to the workshop for regular servicing and maintenance. ¶237 Mr Italiano also took issue with Mr Miniello’s analysis and calculations in relation to his hours of work. It was contended that Mr Miniello’s evidence contained assumptions. Firstly, Mr Italiano testified that it appeared that Mr Miniello only used one run sheet for the purposes of making his assumptions about hours of work. Furthermore, Mr Italiano said that he did not take lunch breaks as he consumed his lunch on the job, nor did he take fatigue breaks, the total of which were estimated by Mr Miniello to be up to two hours per day. It was Mr Italiano’s evidence that he worked continuously from the commencement of his working day until he parked his truck up at the end of the day. Furthermore, despite Mr Miniello’s evidence that due to a fire, most of the paper records at Kelair were destroyed, Ram Holdings offered inspection of all of Ram Holdings’ run sheets over the period of the contract, but that offer was not taken up. ¶238 Other factual matters were raised by Mr Italiano. As to the Saturday run sheet used by Mr Miniello as an example, Mr Italiano said that whilst it was stated there were four tasks for the day, his records reveal there were in fact five. There was an additional job to Ardross added to the day’s work after the run sheet was forwarded to him. Furthermore, Mr Miniello stated that in relation to 2013, there were 48 business days not worked by Ram Holdings. Mr Italiano’s evidence was that from the run sheets for 2013, he calculated that there were only 39 business days not worked and attached a calendar marking the relevant days for this year, to his further witness statement. ¶239 Mr Italiano took issue with Mr Miniello’s “rule of thumb” approach to how long it would take to perform each task allocated. His evidence was that this approach, pays no regard to other variables that will influence actual travelling time taken during a day’s work. These other factors include the time of day of travel, whether peak hour or otherwise; stops and starts due to traffic lights and weather conditions such as inclement weather, which will impact on driving time. Additionally, Mr Italiano referred to the process of tipping at the Bayswater Tip, which was often time consuming as the tip gate controller would only allow one vehicle to enter at a time. It was his evidence that on many occasions this led to a 20 to 30-minute delay in leaving the tip location. ¶240 From a practical point of view, Mr Italiano also noted other circumstances which can arise day to day on the job, in relation to pick up or delivery of skip bins. Whilst not exhaustive, Mr Italiano referred to the need for motor vehicles to be moved on a site so in order to access a bin; the presence of materials in and around the skip bin that must be moved before it can be moved; the requirement on occasions for a delivery docket from the site supervisor to be obtained; particular client requirements such as the orientation of the bin on a site; the presence of overloading requiring the bin load to be rendered safe before transporting; situations where a bin may still be empty or has been collected by another driver; jobs added or changed during the course of a day requiring a resequencing of services; the taking and making of telephone calls to and from dispatch responding to client enquiries during the course of the working day. ¶241 In relation to some of the situations encountered on site, Mr Italiano attached to his witness statement, photographs illustrating some of the matters to which he referred in his evidence. Also annexed as appendix 7 were notations on run sheets of further examples of issues encountered on site that impacted on either the delivery of services or on occasions, circumstances where services could not be delivered at all. ¶242 Furthermore, in a table annexed to his witness statement, Mr Italiano further referred to the “rule of thumb” assumptions made by Mr Miniello, taking as an example the driver report for 29 January 2011 from Ram Holdings. On that occasion Mr Miniello estimated that the work involved would have taken three hours to complete. In response, Mr Italiano at appendix 5 of his witness statement set out an analysis of distances between the tipping site and the various jobs for the day, using GPS readings. According to Mr Italiano, adopting that approach, a proper consideration of the day’s work would have involved a working time of over five hours, considerably more than Mr Miniello’s “rule of thumb”. Additionally, Mr Miniello’s assertion that Mr Italiano worked only from 7am to 4:30pm was not correct. His evidence in that respect referred to the time at which the ECO tipping site was open for business. Mr Italiano’s evidence was that he would generally start work at 6:30am each day and finish between 5:30 and 6pm in the evening. ¶243 As to Mr Miniello’s use of Crestflow as a means of cross checking his approach to the assessment of Ram Holdings’ hours of work, Mr Italiano reiterated his earlier evidence that from what he had observed in relation to the work allocations to Crestflow, they involve many more preferential jobs involving less travel which impacted on his capacity to earn revenue. Mr Italiano illustrated the point by saying that where he was allocated “close” jobs, he achieved significantly more runs, up to 20 a day. In other circumstances, where jobs were allocated to him at far greater distances, he may only achieve half the number of jobs each working day. In referring to his earlier testimony, Mr Italiano contended that the run sheets already in evidence, of work he performed prior to February 2013, demonstrated that he was consistently working in areas north and south of the river which precluded him using the ECO tip site exclusively. I have already dealt with this evidence above, in relation to the unconscionable conduct claim. ¶244 Mr Italiano filed a further supplementary witness statement on 6 November 2017 with annexures. In his further evidence Mr Italiano referred to the total kilometres recorded in Appendix 1 of the Mercia Report and annexed as Attachment A, a copy of the servicing records for his truck which record at the relevant times, the odometer readings. Annexed as Attachment B to his further witness statement, were the sale documents for his truck. These show the distance the truck travelled at the time of the sale. Mr Italiano affirmed that except for travelling to the premises where his truck was placed on sale by consignment, a relatively short distance, the kilometres recorded by the truck were for the performance of services for Kelair. Furthermore, annexed as Attachment C to Mr Italiano’s further witness statement, was a revised appendix to the Mercia Report prepared by Mr Lambe as requested by Ram Holdings. This contained revisions in relation to total hours of work and a revised deficit over a sustainable rate down to $166,427, resulting from a reduction in the hours of work recorded and the adjusted total revenue figure. This continued to be based on the Costs Calculator method of assessing rates. ¶245 From this further significant body of evidence led before the Tribunal, further submissions were made by the parties as to the conclusions that the Tribunal should reach in relation to the sustainable rates issue. In summary those submissions were as follows. ¶246 Based upon the above evidence and methodology, Kelair contended that it is only in the first year, where the reassessed hourly rate was less than the greater of the Council or TWU rates. It was submitted that this would be consistent with a new driver coming to grips with a new role, routes and equipment being used, which efficiency would improve over time. Based upon the material considered by Mr Miniello, Kelair then submitted that taking an average reassessed hourly rate basis from 2011 to 2015 in total, Ram Holdings earned an average rate of $74.47 per hour. This compared to the average hourly rate for the greater of either the Council or TWU rates of $64.78 per hour, over the same period. ¶247 By way of a comparison from Mr Miniello’s calculations, over the same period, Crestflow earned an average hourly rate of $83.36 per hour, compared to the average of the greater of the Council or TWU guideline rates. ¶248 Using the revised appendix to the Mercia Report tendered by Ram Holdings with adjusted revenue and hours of work figures, Kelair tendered as exhibit R8, a table of revenue and working hours along the lines of that initially provided by the Tribunal to the parties at Table 1 referred to above. The content of exhibit R8, setting out the revised revenue, hours of work and resulting rates per hour, and a comparison with the Guideline Rates, was as follows: Total / Average Revenue : $545,156 Hours : 8,234 Rate per hour : $66.21 Greater of Council or TWU rate : $64.78 Difference : $1.43 ¶249 It was submitted by Kelair that overall, despite its earlier submissions as to the inapplicability of comparing an hourly rate with a piecework rate, and the fact that the guideline rates do not set minimum or maximum rates, the only reasonable conclusion to be reached from the above table, is that the rates paid by Kelair, when converted to an hourly rate basis, were safe and sustainable over the relevant period. ¶250 Kelair also submitted that whether a safe and sustainable rate of pay is provided to an owner-driver, is a factor to be considered by the Tribunal in determining whether conduct could be regarded as unconscionable. This contention was said to be derived from the terms of the OD Act itself. Kelair referred to Mr Miniello’s assessment of Ram Holdings’ hours of work and the evidence of Ram Holdings as stated in the revised Appendix 6 to the Mercia Report. In either case, when an hourly rate calculation is performed and that rate is compared to either the Council rate or the TWU rate, the conclusion must be reached that the rate paid was safe and sustainable. These submissions were made in the context of those earlier made, that the guideline rates themselves are merely a guide to the Tribunal and are not minimum or maximum rates and nor are they award rates. ¶251 The further submission made by Kelair was that on the revised hours in Appendix 6, as submitted by Ram Holdings, compared with Mr Miniello’s assessment of total hours of work performed by Ram Holdings, there is not a great difference between the parties. The differential is about 200 hours over the term of the contract. Kelair contended that this further negates any argument as to unconscionability on Ram Holdings’ case. ¶252 As to credibility of the evidence, Kelair submitted that given that Ram Holdings had to significantly revise down its hours of work figures and revenue figures as contained in the amended Appendix 6, compared to the original Appendix 6, this is of some significance. Furthermore, Kelair contended there were some inconsistencies in Mr Italiano’s oral evidence as to his daily hours of work which vary from his assertion that he worked 11 to 11 ½ hours per day, despite a reference in the revised Appendix 6, to about 10.6 hours per day as the basis for Ram Holdings’ revised calculations. Along with this, was the need to adjust revenue to include the $11,000 in income, as identified in Mr Miniello’s own account reconciliations, dealt with in his evidence. ¶253 The broad submission was that this tends to support the approach of Kelair to these assessments as being more credible than that advanced by Ram Holdings. ¶254 In relation to the per kilometre rate comparison now seemingly more relied upon by Ram Holdings, Kelair made further submissions. Firstly, it was contended that this argument must be rejected because there are no published Council rates for 2014 and 2015 and the TWU rates do not include a per kilometre calculation at all. Therefore, the submission was it would be unsafe for the Tribunal to proceed by way of a comparison on a per kilometre rate basis, given these deficiencies. Kelair also pointed to the fact that the last odometer reading of Ram Holdings’ truck during its years of service took place at the end of 2014. The final odometer reading was undertaken on the bill of sale for the sale of the truck on 13 December 2015, despite that the engagement with Kelair terminated in about March 2015. Kelair contended that if the Tribunal is to have regard to the published guideline rates in determining whether the rates paid to Ram Holdings were safe and sustainable, the most satisfactory comparator is the hourly rate. This is one which has been published and is available for each of the years of service under the contract between Ram Holdings and Kelair and as set out in exhibit R8 above. ¶255 Finally, Kelair returned to its original submission in relation to the piecework rate which Kelair said was negotiated with the TWU as a going “industry rate”. Kelair now accepted that in the absence of any evidence to establish how that rate was struck, its contention that it should be implicitly found by the Tribunal that such a negotiated rate was safe and sustainable, can no longer be maintained. Accordingly, that argument was withdrawn by Kelair. ¶256 Ram Holdings submitted that in relation to guideline rates generally, contrary to the submissions of Kelair, they should be viewed by the Tribunal as a minimum rate and not as an actual or absolute rate. Where a rate is found to be below the guideline rate, then Ram Holdings contended that the Tribunal should find that the rate payable was not safe and sustainable. In relation to exhibit R8, Ram Holdings submitted that each year should stand alone. It was apparent, as the submission went, that based on Kelair’s own calculations, using the revised Appendix 6, at least in the first two years of the contract, the rates paid were not safe and sustainable. Ram Holdings rejected the suggestion advanced by Kelair, that an assessment should be made of the rates paid over the entire time of the operation of the contract, effectively on an averaging basis. It was submitted that to approach the matter in this way, would be inconsistent with the statutory scheme. The submission was that the assessment of whether a rate is safe and sustainable, should be made at the time services are performed under an owner-driver contract, and not retrospectively by some averaging process over the contract’s entire duration. I agree with this submission. ¶257 Furthermore, having regard to exhibit R8, the revised figures using the format initially proposed by the Tribunal, Ram Holdings conceded, and in my view properly so, that it would only be open to the Tribunal to conclude that if the rates paid to Ram Holdings were not safe and sustainable, that could only reasonably apply for the first two years of the contract duration. This is because it was common ground that from the period 1 July 2012 to the termination of the owner-driver contract, the rates paid, on a recalculated per hour basis, were higher than the greater of the Council or TWU rates. ¶258 In the alternative however, Ram Holdings submitted that the Tribunal can have regard to the per kilometre calculations as extended for the years 2014 and 2015, as set out in the revised Appendix 6. The additional per kilometre calculations for those two years, were derived from the application of CPI movements, which led only to a relatively small increase in the per kilometre rate. Ram Holdings submitted that if the Tribunal was to accept the calculations as set out in the revised Appendix 6 in relation to per kilometre rates, then on that basis, the conclusion would be reached that in each year of the contract, Ram Holdings was paid less than the relevant guideline rate per kilometre. It was submitted that Mr Italiano’s evidence, that after the termination of the contract, the truck was not driven other than to the premises from which it was sold, means that the log book records for the vehicle as set out in the revised Appendix 6, can be taken to be reliable. [Consideration] ¶259 The only rates having legislative status before the Tribunal are the Council rates. However, it is the case that the only gazetted guideline rates published by the Council were dated July 2010 and March 2012. The guideline rates for 2013 were published as provisional rates, and not gazetted. Thus, for the years 2014 and 2015, the Tribunal does not have available to it, guideline rates from the Council, whether they be gazetted or provisional. By s 8 of the Code, such guideline rates can provide guidance to the Tribunal, in determining whether payments have been made at a safe and sustainable rate. Nothing in the OD Act or the Code, or indeed the gazetted rates themselves, provides that guideline rates are a minimum or maximum rate. They are to be used by the Tribunal as a guide only and do not in any way bind the Tribunal. ¶260 In circumstances where there are no Council rates for a year or years, in my opinion, the Tribunal’s broad discretion and powers cannot be in any way fettered. By s 41(1)(b) the Tribunal may inform itself as it sees fit. The Tribunal has a discretion to have regard to guideline rates in an appropriate case. In circumstances where there are no Council rates for a year in relation to a dispute, does not mean that the Tribunal may not see fit to inform itself having regard to appropriate standards that may be applicable in the transport industry in this State. To have regard to the TWU rates does not, and cannot elevate such guidelines to any statutory status, which they plainly do not have. Nor does the Tribunal seek to accord to them any legislative status for the purposes of these proceedings. The present circumstance is no different from the Tribunal having regard to an industry custom or practice prevailing at any point in time. There was no submission that the TWU rates are either inaccurate, unreliable or for reasons of merit, could not provide some guidance in relation to prevailing industry rates of pay for owner-drivers. Indeed, the parties now appear, despite earlier submissions, to accept that the TWU rates can be used by the Tribunal as a basis for comparison. ¶261 As to the contention advanced by Kelair that a reconsideration of the Agreement rates would involve some “unwinding” of the rates as agreed and would breach the principle of sanctity of contract, that proposition must be rejected. Firstly, the Tribunal is not in any way bound by what was said to have been agreed between Kelair and the Union at the time. The TWU is not a party to these proceedings on the merits and accordingly, any “unwinding” of rates is not a relevant consideration. As to the issue of sanctity of contract, that could never be a bar to the Tribunal determining a claim in relation to safe and sustainable rates, when its very jurisdiction is founded upon the existence of an owner-driver contract and whether rates payable under such a contract, are safe and sustainable, is a matter on the merits. If the argument of Kelair on this issue was upheld, then it is difficult to see how the Tribunal could ever review rates of pay under an owner-driver contract. ¶262 Accordingly, in the circumstances of this case, the Tribunal considers that some regard can be had to the TWU rates as an indicator of prevailing hourly rates applicable to various vehicle types operated in the road freight industry. Of course, the Tribunal will have primary regard to the guideline rates as published by the Council, either as gazetted or provisional, in the relevant years as published. ¶263 I generally accept the rationale of Mr Miniello’s analysis leading to the preparation of exhibit R8, especially given the substantial downward revision of hours of work in the amended Appendix 6 to the Mercer Report. It seems reasonably clear from the revised hours of work now set out in exhibit R8 above, that the total hours recorded for Ram Holdings for 2014 and 2015, take account of the periods of absence to which Mr Miniello referred in his evidence. Taking the total adjusted revenue figures from the revised Appendix 6 and dividing by the total revised hours recorded by Ram Holdings at page 1 of Appendix 1, provides gross revenue per hour and gross revenue per kilometre figures. Comparing the outcome of those calculations to the Council rates and the TWU rates for 2011 to 2015, leads to the conclusion that there was a short fall in the first year to June 2011 and in the second year to June 2012. Whilst it was contended by Kelair that in the first year of the contract there can be expected some allowance be made for an owner-driver to become familiar with the work required to be done, and routes driven etc, I do not think this can be used to justify a low revenue figure for the whole of the relevant period. In this case, Ram Holdings commenced performing services in December 2010. ¶264 Having conducted the above revised calculations, again, on any view, the effective hourly rate of Ram Holdings on a revenue basis, over the period from commencement at least to June 2012, was well below for 2011 and below for 2012, either the Council rate or the TWU rate for the relevant years of Ram Holdings’ performance of services under the Agreement. ¶265 The Tribunal also needs to consider the contentions of Kelair that the bulk of Ram Holdings’ difficulties came down to poor run management. It is difficult to accept this contention when regard is had to Mr Italiano’s evidence. From his evidence, it did not appear to the Tribunal that Ram Holdings was not a competent operator. It remained performing services for Kelair for some four years, three months. If at any time Kelair considered that Ram Holdings was not performing services in a proper, efficient and workmanlike manner, Kelair had the contractual right under the terms of the Agreement, to regard Ram Holdings as being in breach of the Agreement. There was no such suggestion on the evidence. Whilst in cases such as this, each owner-driver may conduct their businesses somewhat differently and how they do so is ultimately a matter for them, the Tribunal cannot reach the view on the evidence, that Ram Holdings was other than a competent operator. ¶266 As to Ram Holdings final submissions that the Tribunal should rely on the kilometre rate calculations to reach its conclusions, there is some substance to this contention. It is the case that there were no Council rates on a per kilometre basis for the 2014 and 2015 years, and there are no TWU rates at all, as per kilometre rates are not published. As to the extrapolation of the headline CPI figure to the Council rates for the years 2014 and 2015, as performed by Ram Holdings, I am not persuaded that this is a sound basis to fill any gaps in the published figure. This is because the Council rates are based on a diesel fuel price at a given point in time, which is used for the basis of the calculations as published. This does not simply apply CPI. ¶267 Fuel price movements have regard for a range of factors and the headline CPI rate itself, is comprised of many components, only one of which is “transport”. This is not just based on fuel prices but a range of factors, from both private and public transport costs. If there was to be any approximate adjustment of the per kilometre rate for 2014 and 2015, then in my view, it would be more appropriate to use the “Transport” category that makes up the overall CPI figure, as a better guide, rather than the headline rate of CPI. For 2014, on an annual average basis, transport costs increased by 2.3% for Perth. For 2015, on the same basis, transport costs reduced by 1.6% for Perth. Recalculating the figures tendered by Ram Holdings in the revised Appendix 6 on the top of page 8, leads to a per kilometre rate of $3.00 for 2014 and $2.95 for 2015. This leads to an overall revised “Revenue shortfall not received based on mileage” of $80, 331. ¶268 As to Kelair’s criticism of Ram Holding’s mileage recording, given the evidence in Mr Italiano’s supplementary witness statement with its annexures, I satisfied that his evidence as to mileage can be regarded as reliable. ¶269 On the evidence, and summarised in exhibit R8, it is difficult to conclude otherwise than the rates paid to Ram Holdings by Kelair for the years 2011 and 2012, were not safe and sustainable rates. From exhibit R8, taking the differential in the hourly rates from the greater of the Council or TWU rates, as a multiple of the hours worked over the relevant periods, leads to a revenue shortfall for Ram Holdings of $35,366. ¶270 There are differences in the outcome in this case, depending on whether one relies on the revised hourly rate calculations as set in out exhibit R8, or the adjusted per kilometre rates as noted above. This presents the Tribunal with some difficulties in an assessment of sustainable rates. Depending on the facts, the hours taken to perform work and the total distances travelled to perform those same services, are both valid points of comparison. Each may have its strengths and weaknesses. Ultimately however, as the OD Act makes plain, regardless of any such differences, such comparative rates assessments can only be a guide to the Tribunal. In my view, in a difficult case like the present where the basis for determining rates is effectively on a piecework rate, a combination of the two approaches can assist. As a guide, if one was to average the outcomes applying both an hourly calculation and a per kilometre rates assessment, this incorporates both time worked and distance travelled. Adopting this approach in this case, which I consider to be a reasonable compromise, leads to shortfall of $57,697 over the duration of the contract. ¶271 Furthermore, the Tribunal also observes that contrary to s 30(2)(k) of the OD Act, the Agreement did not provide for payment of any increases in the owner-driver’s fixed and variable overhead costs, as set out in s 27(4), and certainly not beyond 2014. The evidence before the Tribunal was that attempts were made between February and May 2014 to negotiate an increase in the rates paid by Kelair. This was the subject of some evidence by Mr Italiano and included reference to text messages between himself and Mr Griffin, described as the “site union driver”, where proposals from the drivers to increase the rates of pay were refused. When this was put to Mr Mangione he could not recollect this occurring and could not comment on the messages referred to by Mr Italiano in his evidence. I have no reason to doubt Mr Italiano’s evidence in this respect. However, regardless, the terms of the Agreement did not comply with the OD Act in this respect. [Conclusions] ¶272 In this case the Tribunal has concluded that the negotiations for the Agreement between Ram Holdings and Kelair was not unconscionable. The Tribunal has concluded however that the failure of Kelair to comply with s 7 of the Code was unconscionable for the purposes of s 30(2)(g) of the OD Act. The Tribunal has not been satisfied on the evidence that Kelair was able to rely on Ram Holdings’ failure to work Saturdays as a ground to find the Agreement was breached and to terminate it. The Tribunal is satisfied that Ram Holdings was in default of the Agreement by proceeding to take extended leave, contrary to Kelair’s revised policy. However, given the most likely response of Ram Holdings on the evidence, in relation to that default, only nominal damages should flow. ¶273 As to the circumstances surrounding the termination of the Agreement, including the removal of the skip lifter, the Tribunal has found the conduct of Kelair to be in breach of the Agreement and to be unconscionable. Furthermore, the Tribunal has found the Agreement, in not providing for a means to adjust fixed and variable costs, leads to unconscionability under s 30(2)(k) of the OD Act. As to the allocation of work and the distribution of runs, the Tribunal has not been satisfied on the evidence that Ram Holdings has made out its case in relation to unconscionable conduct in this respect. Finally, the Tribunal has found that the rates of payment to Ram Holdings under the Agreement over the period of operation of the Agreement from its commencement to 30 June 2012 were not safe and sustainable rates. ¶274 Ram Holdings is required to demonstrate it took steps to mitigate its loss. The relevant principles in relation to mitigation of loss were recently referred to by Wager DCJ in Derrick v Thiess Pty Ltd [2017] WADC 41 (29 March 2017) where at pars 84 to 86 it was said: ¶275 84 Every plaintiff has a duty to mitigate damages. In Kittelty v Davies [2011] WADC 1 [250] Derrick DCJ concisely summarised the principles of mitigation of loss. I adopt that summary as accurate and applicable to this case: ¶276 The principles relating to mitigation of loss are well established. The burden of proving that a plaintiff has failed to take all reasonable steps to mitigate his or her loss lies upon the defendant: Watts v Rake, 159; Plenty v Argus [1975] WAR 155, 157; Wakim v McNally (2002) 121 FCR 162, 182. Failure to take all reasonable steps to mitigate any loss bars the plaintiff from being compensated for that loss: British Westinghouse Electric & Manufacturing Company Ltd v Underground Electric Railways Company of London Ltd [1912] AC 673, 688 – 689; Ardlethan Options Ltd v Easdown (1915) 20 CLR 285, 296; Tuncel v Renown Plate Co Pty Ltd [1976] VR 501, 503 – 504. In considering the reasonableness of the plaintiff's conduct the test is objective, but depends upon the personal characteristics of the plaintiff including his or her state of knowledge at the time: Fazlic v Milingimbi Community Inc (1982) 150 CLR 345, 349-352; Fontaine v Quality Platers (1994) 12 WAR 71, 78-79; Kalavrouziotis v Howel & Kalavrouziotis (unreported, WASC, Library No 980219, 1 May 1998), 3 per Kennedy J, 8 per Wheeler J. ¶277 85 The question is whether a reasonable person in the circumstances as they existed for the plaintiff would have refused to seek work or take up work. Allowance for matters personal to the plaintiff must be made when making the assessment: Fazlic v Milingimbi Community Inc [1982] 150 CLR 345. ¶278 86 The plaintiff is not required to do something he cannot afford, however he may be required to incur expense to mitigate his damage: Matters v Baker & Forsett [1951] SASR 91; Hoad v Scone Motors [1977] 1 NSWLR 88 [100]. ¶279 There was no evidence that Ram Holdings mitigated its loss. ¶280 In the circumstances of this case, the Tribunal considers that the preferable course is for the parties to be given an opportunity to confer as to the quantum of damages and any sum in respect of safe and sustainable rates. This will no doubt include Ram Holdings’ failure to mitigate its loss. Accordingly, the parties are directed to confer within 21 days and advise the Tribunal of the outcome. If the parties are not able to reach an agreement, the Tribunal will determine any damages to be awarded. ¶281 A final matter requires some comment from the Tribunal. From these proceedings the Tribunal has become aware that the Council, established under Part 3 of the OD Act, is, and has not been constituted since it seems, 2013. This is despite the terms of Part 3 that clearly contemplate the constitution and functions of the Council being performed whilst the OD Act remains in force and effect. Among the functions of the Council under s 19(1) is the important function under par (b), to prepare and review on a regular basis the guideline rates. There have been no guideline rates gazetted since 2012, and only provisional rates have been published in 2013 in 2016. The guideline rates play an important role to assist both owner-drivers and hirers in the industry, and provide guidance to the Tribunal in determining whether rates paid are safe and sustainable. They are part of the statutory scheme under the legislation, as is made clear by s 8 of the Code. The current absence of gazetted guideline rates for these purposes, is a significant impediment to the Tribunal discharging its jurisdiction and powers under the OD Act. If this situation is not remedied, it remains to be seen whether the Tribunal, on any future case alleging the payment of rates that are not safe and sustainable, may consider it appropriate to refrain from further hearing such claims, given the difficulties highlighted by this case, until guideline rates are prepared and gazetted.