REFERRAL OF DISPUTE IN THE WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION SITTING AS THE ROAD FREIGHT TRANSPORT INDUSTRY TRIBUNAL CITATION : 2015 WAIRC 00178 CORAM :Commissioner S J Kenner HEARD : Thursday, 23 October 2014 DELIVERED : TUESDAY, 17 FEBRUARY 2015 FILE NO. : RFT 15 OF 2014 BETWEEN : Louisville Holdings Pty Ltd Applicant AND Sims Group Australia Holdings Ltd T/as Sims Metal Management Respondent Catchwords : Owner-driver contract – Referral of dispute – Whether there was an ongoing contractual relationship – Whether the contract contained an implied term as to termination on notice – Introduction of sub-contract agreements – Whether an agreement was inferred by conduct – Principles applied – No mutual obligation – Engagement on an as required basis – Stand-alone contracts – No contractual obligation to give notice of termination – Application dismissed – Order made Legislation : Owner-Drivers (Contracts and Disputes) Act 2007 (WA) Result : Application dismissed Representation: Counsel: Applicant : Mr A Dzieciol Respondent : Mr N Mony de Kerloy Solicitors: Applicant : Transport Workers Union Respondent : Mony de Kerloy Barristers & Solicitors Case(s) referred to in reasons: Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523 Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110 Toll (FGCT) Pty Limited v Alphapharm Pty Limited (2004) 219 CLR 165 Vroon BV v Foster's Brewing Group Ltd [1994] 2 VR 32 === REASONS FOR DECISION === ¶1 Mr Cox is the director of Louisville Holdings Pty Ltd, which owns and operates a prime mover and trailers, and which entered into owner-driver contract(s) with Sims Metal Management under the Owner-Drivers (Contracts and Disputes) Act 2007. Louisville Holdings was engaged by Sims since 2001 until May 2014 to load and cart scrap metal which was loaded for export onto ships in various ports in Western Australia, which included Fremantle, Port Hedland, Dampier and Bunbury. ¶2 Since about 2010 Sims introduced individual “sub-contract agreements” and on each occasion that a ship arrived for loading, Mr Cox would sign an agreement which stipulated the duration of the work for the particular vessel, the tonnage rates and the conditions of the contract. Sims does not dispute that these individual contracts were owner-driver contracts for the purposes of the OD Act. I find accordingly. ¶3 Louisville Holdings says that over the period of more than thirteen years it was contacted on a regular basis, as one of Sims’ preferred contractors, to cart scrap metal using its own truck and trailers. Louisville Holdings contends that the vast majority of its income was derived from the Sims work and it was, for the most part, always available to do the work when called upon by Sims. ¶4 Sims denies that there was an ongoing contract since 2001. Rather, Louisville Holdings terminated the contract when its truck was sold. Sims contends that since 2010, Louisville Holdings was one of many contractors engaged on an ad hoc basis with no guarantee of future work. It says Louisville Holdings was free to work for whomever it chose, and no owner-driver contract was in place at the time Sims decided to no longer offer Louisville Holdings any further work. ¶5 In about May 2014 Louisville Holdings ceased providing work for Sims in circumstances which are controversial in these proceedings. The Operations Manager was instructed by senior management not to offer Louisville Holdings any more work, following allegations of bullying. Louisville Holdings denies the bullying allegations, and contends that it did not breach the contract. By not offering any further work, Louisville Holdings says that Sims terminated the contract, and claims damages for a period of reasonable notice of termination, being the amount it expected to earn from one ship’s work. ¶6 The issues in this case are: Was there an ongoing contractual arrangement between the parties or a series of separate contracts? Was there an implied term that Sims was required to give Louisville Holdings reasonable notice to terminate the contract? If so, what would be a reasonable period of notice in the circumstances? Further, if Sims was required to give reasonable notice, did Louisville Holdings breach the contract in such a manner as to allow Sims to terminate the contract without notice? ¶7 I outline the evidence as follows. [The evidence] ¶8 Mr Cox gave evidence that he has driven his truck for Sims since 2001. The situation Mr Cox described was that he did not work for Sims on a daily or weekly basis, rather, the supervisor of bulk shipments, Mr Goldie, would telephone him when a ship was arriving into port, ask whether he was available to do the job and Mr Cox would make himself available. There was no set period of notice, which would range from five days’ notice to as little as two days’ notice, depending on the size of the ship or the ship’s location. Mr Cox’s evidence was that this arrangement had been ongoing for thirteen and a half years. ¶9 Mr Cox said that in recent times when a ship would arrive there would be generally 18 contractors working on the job. The work involved picking up specially designed shipping bins at a certain time, loading them with scrap metal in Spearwood, Malaga and other yards depending on the amount of steel available. Then, usually the day before, Mr Cox would travel to the wharf, and then follow instructions to unload, in order for the ship to be loaded as quickly as possible. The process would take anywhere from six and a half to seven days to complete. Mr Cox said that he would do about 12 ships per year, and sometimes more. Mr Cox was not paid hourly, but by the tonne. ¶10 According to Mr Cox, the work he performed was specialised and he was required have the correct trailers, accreditation, MSIC card to get access to the wharf, permits, insurance and the ability to travel with large loads. Mr Cox said that an inexperienced driver could not do the work, and using a replacement driver to fill in was not allowed. In the thirteen years he worked for Sims, Mr Cox said that he only used a replacement driver twice after seeking permission. Mr Cox recalled that this occurred ten years ago, but he was fortunate because the replacement driver had an MSIC card. He said with the exception of those two occasions, he had always personally driven for Sims. According to Mr Cox, Mr Goldie did not want drivers who did not know the work, and nowadays drivers have to be inducted by Sims. ¶11 In his evidence, Mr Cox said that initially the job arrangements with Sims were verbal but in the last four or five years Sims introduced the sub-contract agreements which were signed at the wharf by Mr Cox and others at the start of each job. Mr Cox said he was then paid within seven days of completion. According to Mr Cox, there was virtually no change to the way the work was organised, but drivers had to agree to a list of conditions. ¶12 Exhibit R1 was a standard sub-contract agreement and on the front page it includes details of the parties to the agreement, the name of the ship, the approximate tonnage, and the duration of the job with the start and finishing dates. The clause in question states: The following agreement between the above parties covers the cartage of scrap metal from Sims Metal Management Limited yards to the Fremantle wharf and is effective for “M.V.(Insert Ships Name) loading approximately (Insert Tonnes) tonnes from (Insert Date) through to (Insert Date). ¶13 The second page lists the shipping rates per tonne, and the third page sets out 21 “Conditions of Contract”. I outline some of the conditions as follows: Conditions of Contract: … 8. Any dispute will be discussed upon completion of the ship without any lost loading time during the ship. 9. Any driver creating a nuisance on Sims Metal Management premises or at the wharf may be excluded from working the balance of that and future ships. 10. Refusal to accept directions as listed above means instant dismissal from the contract. ¶14 Tendered as exhibit R2 was a bundle of the front pages of sub-contract agreements entered into by Louisville Holdings and Sims on various dates. ¶15 According to Mr Cox the written contracts were introduced by the previous Operations Manager, Mr Mayne, following a stop work meeting on the wharf about four years ago about tonnage rates. Mr Cox said that these written contracts were a change to the way things had been done previously. He said Sims told the drivers that, in the future, any grievances or problems, concerning tonnage rates, would be dealt with after the ship had been completed, as Sims did not want any stop work meetings beforehand. According to Mr Cox, this was the reason he thought the change was made and referred to clause 8 in the contract. According to Mr Cox, he was not given any other reason as to why the contracts were introduced. ¶16 Mr Cox also said that it was his understanding that he and Sims had an ongoing relationship, because he was “on the list and inducted”. Mr Cox described it as, if Sims needed a truck, he would provide the service. Mr Cox acknowledged that there was no written correspondence guaranteeing him ongoing work, it was just the arrangement he understood he had with the past and current Operations Managers. ¶17 Exhibit A1 was Mr Cox’s handwritten tax invoice book which he would submit to Sims for the amount charged for the tonnage carted after each ship. Louisville Holdings provided a summary sheet of calculations for the last 12 months, which I set out as follows: 21-04-13 $21,945.00 27-05-13 $7,304.09 27-05-13 $13,168.72 01-07-13 $21,822.35 01-07-13 $495.00 26-08-13 $21,862.26 25-09-13 $7,742.59 01-10-13 $12,046.46 14-10-13 $10,055.24 16-10-13 $5,070.84 30-10-13 $14,951.19 05-12-13 $9,922.41 16-12-13 $15,209.76 23-12-13 $6,877.95 03-02-14 $7,200.56 10-02-14 $13,917.18 04-03-14 $8,259.62 24-03-14 $10,681.31 22-04-14 $12,973.85 $221,506.38 ¶18 When it was put to Mr Cox that there was no problem with him doing work for companies other than Sims during the times ships were coming in, Mr Cox said that was correct. Mr Cox also said that in the first five years of working for Sims, he also worked for another company doing a Perth to Melbourne run. According to Mr Cox, finding other work was fine, but Louisville Holdings’ main business model was based on obtaining work from Sims. Mr Cox said that he earned over $200,000 from Sims in the last 12 months, and did not understand it to be some ad hoc arrangement. ¶19 Mr Cox said that a ship would come in about every four weeks so in between ships he would look around to see if other jobs come up, depending on how much they would pay. Mr Cox described it as “like a semi-retirement job” which was going to top up his superannuation, and in about five years he was going to retire. Mr Cox said he never knocked back work from Sims. The situation Mr Cox described was that he and Sims, as with all of the 18 contractors, always had a relationship, whereby Sims had the work and he provided the truck and trailers. ¶20 During cross-examination, Mr Cox acknowledged that there were invoices in his book for work completed that was not Sims’ work. For instance, invoice 22 dated 9 September 2013 and invoice 23 dated 19 September 2013 were for “R.M. Ebbett” which involved container cartage from Perth to Geraldton which was about one days’ work each. Another example was invoice 33 dated 30 January 2014 which was a one-off trip moving a salt excavator to Onslow for Mark Overall Transport. ¶21 Mr Cox said there was a period of about two or three months where he left work after his trailers were sold. This occurred in 2007 where he missed about two or three ships because he had his truck refurbished. Mr Cox said that he told Mr Mayne, the Operations Manager at the time about the refurbishment and that someone wanted to buy the trailers. According to Mr Cox, he understood Mr Mayne had no issue with it. When the work to the truck was completed, Mr Cox rang Mr Goldie and said that he was available to work again, and he worked for Sims ever since. Mr Mayne was not called to give evidence in these proceedings. ¶22 Mr Goldie also gave evidence as to Sims’ operations. As the Senior Shipping Coordinator, Mr Goldie is responsible for coordinating the collection and transportation of scrap metal. This is coordinated by using subcontracted drivers in a pool of drivers, which Sims can choose from. The situation Mr Goldie described was that when he is notified that a ship is coming in, he would telephone the drivers to see who is available, and he would normally give the drivers a week’s notice of the arrival of a ship. He said that he tries to give the drivers a week’s notice in case they have other work which they need to plan around and organise. Mr Goldie said that the jobs would last anywhere from five days to ten days, depending on the tonnage and how much needs to be loaded. Mr Goldie estimated that on average, Sims normally loads one ship every six to seven weeks. ¶23 In his evidence, Mr Goldie confirmed that Sims uses the standard sub-contract agreement for every ship. Mr Goldie said that he was told by senior management to implement the written agreements in 2010, but he was not sure as to the reason, and thought that it may have had something to do with a previous case involving one of the subcontractors. Mr Goldie testified that since the agreements were introduced, “basically nothing changed”. For instance, Mr Goldie used the same notification procedure on a ship by ship basis. The only change was that, at the commencement of each ship, the agreement was given to each driver. ¶24 Mr Goldie said that drivers could do other work between ships and it is the driver’s decision whether they wish to accept work from Sims when they are telephoned. Mr Goldie said that it is fine if the drivers are unavailable if they have something else on, as he will ring the next driver in the pool of about 23. Then next time, when a ship comes in, Mr Goldie, will again ring the drivers to see if they are available and so on. ¶25 There was some initial suggestion by Mr Goldie, that Mr Cox had a break from the transport industry for some 12 months when his truck was sold. However in his evidence, Mr Goldie said that he could not give a definitive answer as to the length of Mr Cox’s break, and accepted that the break could have been for a two or three month period. ¶26 Mr Goldie also gave evidence in relation to Mr Cox’s alleged conduct and behaviour in the workplace. Mr Goldie testified that a complaint was made in May 2013 about Mr Cox allegedly engaging in antisocial behaviour over the two way radio. I set out as follows, with formal parts omitted, exhibit R3 which is an unsigned letter of complaint dated 30 May 2013: Dear Mr Matthers, Reference - Complaint Against Mr David Cox ¶27 I am writing this letter as a formal complaint about another contractor Mr David Cox. For the past 12 months I have suffered constant verbal abuse and intimidation in the workplace. I raised a recent example with both yourself and Mr Dave Goldie and you advised me to put my complaint in writing. ¶28 This most recent example relates to my contract at the Bunbury Port two weeks ago. On the first day damage to a gate on the Bunbury Port occurred. UHF radio discussion led to me making the comment -"I only know one person who hits weighbridges and gates" - I did not name that person. Mr Cox responded immediately telling me to "shut my mouth and go get fucked, you fat fuck and I will sort you out later". A day after this incident I heard Mr Cox speaking with Mr Murray Waite and referring to me as a "fat fuck". Mr Waite also approached me that evening to say that Mr Cox asked him to tell me that "if that fat fuck puts in a letter of complaint against him, he will sue me for slander. ¶29 I have been verbally threatened by Mr Cox before even though it was about something I was not involved in at all. Another specific example relates to an incident approximately 12 months earlier when I was working at the Fremantle Port and when Mr David Goldie was present. This related to discussions about the legalities of road train routes and different views - Mr Cox became very agitated and again was verbally abusive and intimidating to me. He asked me to meet him after working hours to fight him at the North Mole which of course I did not do. ¶30 The majority of contract drivers on the wharf have all experienced ongoing verbal abuse and intimidation by Mr Cox. For example, Mr Bill Ninnis has told me that Mr Cox has tailgated him and blocked lanes of traffic so he could not pass for no apparent reason - just to be difficult. Mr Brian Draper has told me that he was in the Bunbury Port and was threatened to be bashed if he didn't reveal the rates of pay that he was being paid by his primary contractor Mr Lindsay Della. Mr Cox I believe approached Mr Lindsay Della to find out what percentage he was taking. This resulted in Mr Cox and Mr Della having a fist fight at the North Mole. ¶31 Most of the contractors get on very well in their work environment but we have all experienced Mr Cox's abusive and intimidating behaviour and have had enough. This recent incident in my view is the straw that broke the camel's back and I am no longer prepared to put up with his behaviour or bullying tactics. ¶32 Mr Goldie said that he did not recall who made the complaint. Mr Goldie did not know what the outcome of any investigation was because complaints get acted upon by senior management. Mr Cox continued to work for Sims until May 2014. ¶33 Mr Smith was another subcontractor Sims used for the scrap metal work, and the author of the above complaint of 30 May 2013. Mr Smith testified that he was abused, threatened and called names by Mr Cox, for example, Mr Cox said he wanted to “kick the shit out of him” and the like. Mr Smith said that he had raised his concerns previously, but nothing had been done about it. Mr Smith said he had enough and so decided to speak with Mr Goldie and Mr Matthers, the Operations Manager, and was told that if he wanted to take it any further, he could make a written complaint. According to Mr Smith, he was not sure how it all started. ¶34 According to Mr Cox, in about May 2013 Mr Cox was told by the Operations Manager that there had been a complaint by a driver. Mr Cox did not understand what the grievance was about, the issue was addressed by the union and Mr Cox was of the view that the issue had been resolved, and he carried on with work. Mr Cox said that there was confusion about who the complainant was as he thought it was someone named “Stan”. ¶35 Mr Cox said that he only used the radio when he went to the yard for the purposes of getting instructions from the operators, the loader drivers or the yard foreman, as to which road he was to use or which machine to use. Mr Cox said the purpose of calling out on the radio is to avoid trucks coming in and going out at the same time. Mr Cox said that as soon as he gets on the road, he would turn off the radio to avoid general “chitchat”. Mr Cox also denied that he challenged another driver to a fight. ¶36 Mr Cox said that in the past he had raised issues with Mr Goldie about the behaviours of some of the other drivers on the road, as he would always try to do the right thing but he never confronted those drivers personally because that is management’s job, and not his job. If someone had done the wrong thing Mr Cox said he thought it appropriate to confront Mr Goldie about it as he is the person responsible for what happens on and off the wharf. According to Mr Goldie, as far as he could recall, there had been no complaints raised about owner-drivers not using designated routes for restricted access vehicles. ¶37 A further complaint was received in April 2014 from Mr Ninnis, which was tendered as exhibit R4, and which I set out below: Re: Harassment Complaint Mr David Cox ¶38 I would like to bring to your attention a situation regarding harassment by another subcontractor Mr David Cox. ¶39 Mr Cox will see me talking to other contractors, then ring them on their mobile phone and ask "why the fuck are you talking to him" – he is a back stabling (sic) asshole.... ". Over the past 6 months he has repeatedly done this and uses other filthy and derogatory remarks to them about me. I have tried to take the approach to ignore him but his onslaught never stops, so I feel a written complaint is the only way to have some action taken. ¶40 If I am amongst a group of other contractors I always say hello to Mr Cox but always at best get a grunt in return. The last incident was on the ship Orient Singapore. While waiting to be loaded at the Spearwood yard, I was in line of about 6-7 trucks. Mr George Kelly was behind me and Mr Murray Waite in front. Mr Waite was inspecting tyres on his truck and walked back to my truck to say hello. Mr Cox could see us talking and I told Murray that his mobile phone would probably ring soon and it would be Mr Cox. Suddenly Murray's phone rang - it was Mr Cox and Murray said he was complaining about me. George Kelly came over to say hello and have a chat and I said that his phone would probably ring soon - it did, it was Mr Cox who again spoke badly about me. ¶41 On this occasion Mr Cox rang both Mr Kelly and Mr Waite again and harassed them both about talking to me. I believe the discussion in both cases was Mr Cox using bad language and making derogatory remarks about me and questioning why they were talking to me. This all took place within 10 minutes. ¶42 At an out of work BBQ I met Mr Lindsay Della. Without prompting Mr Della, another SIMS subcontractor, said that he had been told by Mr Remo Pasalli (another contractor) that Mr Cox was threatening to assault me in the future. On a previous bulk metal ship job, Mr Cox had personally threatened and physically pushed me at the wharf but I didn't retaliate. ¶43 There are 18 different subcontractors working together and we are all different personalities but get on pretty well, and also work well together. Mr Cox is a bully and constantly causing trouble with his harassment and bullying tactics and many of us have had enough with his antics. I feel it is time that this matter is formally registered and action taken under your Bullying Policy. ¶44 Mr Goldie said that this complaint was raised with Sims’ senior management and the decision was made to remove Mr Cox from the employable drivers’ pool. Mr Goldie said that there had been complaints made, and from his point of view there was nothing that he could do apart from inform management and if the drivers wanted action to be taken, the complaints had to be made in writing. Mr Goldie said that he had never received any complaints from Sims’ direct employees, anyone involved in loading the trucks in the yard or the stevedores. ¶45 The complainant, Mr Ninnis, also gave evidence in the proceedings. Mr Ninnis testified that he decided to complain in writing about Mr Cox’s “continuous slander”. Prior to making the written complaint, he had approach Sims about his concerns and was told to put it in writing if he wanted further action to be taken. The situation Mr Cox described was that he never had any complaints from any of the workers at Sims or people on the wharf in the thirteen and a half years he has worked there. Mr Cox got along with the other drivers, and had no problems with them. Mr Cox said that he, and everyone else was there to get on with the job and make a living. ¶46 In relation to the written complaint by Mr Ninnis of 26 April 2014, tendered as exhibit R4, Mr Cox refuted the allegations. Mr Cox said that he did not use his mobile telephone to talk to other drivers, as that was not allowed in the yard. Mr Cox said that he did not instruct people to talk to anyone. Mr Cox denied that he used filthy and derogatory remarks to other drivers, said that he greeted everyone in the morning and did not harass, threaten or assault anyone. He said that he had no problem working with Mr Ninnis. ¶47 On or about 20 May 2014 Mr Cox said that he learned that he was no longer doing work for Sims when he was not telephoned to do the scrap metal work in Bunbury. Mr Cox then telephoned Mr Goldie and he was told that Mr Goldie had been instructed not to use him on any more ships and to talk to the Operations Manager, Mr Matthers, to find out further details. Mr Cox said that that same day he spoke to Mr Matthers who said there had been an anonymous telephone complaint to the New York office that he had engaged in bullying behaviour, and so Mr Cox’s services had to be “terminated”. Mr Cox said that he did not have an opportunity to reply. Mr Cox described the situation as particularly bad because he planned his business model around a certain amount of income being derived from Sims and then it disappeared “without the common courtesy of a phone call or a discussion”. ¶48 During the period from May to August 2014, Mr Cox said that he has not had any work for his truck, with the exception of two days. He also did a “wages job” in September and October 2014. [Nature of the contractual arrangement] ¶49 I have carefully considered the oral and documentary evidence in this matter. The first question to determine is whether there was an ongoing contractual arrangement between Louisville Holdings and Sims, and what the effect was of the introduction of the sub-contract agreements in 2010. ¶50 Sims contends that the Tribunal does not have jurisdiction to deal with the claim because there was no owner-driver contract in existence when Sims decided not to offer Louisville Holdings any further work. Accordingly, Sims submits that it was not necessary to provide Louisville Holdings with notice of termination or provide notification that work would no longer be offered. Sims asserts that the contracts were on a ship by ship basis and when the contracts ended so did the obligation to provide notice of termination or offer further work. It says there was no guarantee of ongoing work. ¶51 Louisville Holdings submits that the fact that a contract was signed each time did not change the nature of the relationship, as they were merely a formality. It says the work was being performed on a regular, cyclical and ongoing basis since 2001, whereby Mr Cox expected that sometime during the relevant month he would receive a telephone call to do work for Sims. The only difference was that after 2010, a document was signed by Mr Cox each time a ship was loaded, and handed back to Sims. As against the long standing practice established on the evidence, the contract document should be given little weight by the Tribunal. ¶52 It is important to consider whether the conduct of the parties, objectively considered, shows an intention that the parties intended to be contractually bound: Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110. An agreement may be inferred from conduct, irrespective of whether an identifiable offer and acceptance may be present: Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523; Vroon BV v Foster’s Brewing Group Ltd [1994] 2 VR 32. The approach to determining the nature of the contractual relationship of the parties is to objectively assess, from all of the surrounding circumstances, what a reasonable person, in the position of the other, would believe, not what the parties themselves may have subjectively intended: Toll (FGCT) Pty Limited v Alphapharm Pty Limited (2004) 219 CLR 165 at 179. ¶53 It was common ground that the same procedure for the engagement of drivers, including Mr Cox, was adopted, prior to and after the written contracts were introduced. Sims would make contact with drivers, trying to give some notice, of the arrival of a ship. If drivers were available, they were given the work. The loading of a ship would take between five and ten days. A ship is required to be loaded, on average, each six to seven weeks. In between ships, drivers are able to perform whatever other work they were able to source. The process would then repeat itself for the next and successive ship arrivals. Mr Cox testified that except for the period in 2007 when he refurbished his truck, he was continuously available to and did work for Sims between 2001 and May 2014. The performance of the work was regular and systematic. It was not intermittent or sporadic. ¶54 To answer the question in this case, first requires consideration of the oral contractual arrangement prior to the introduction of the contract document in 2010. If the outcome of that inquiry is that the arrangement was in fact and law an ongoing one, then the next question to be answered is did Louisville Holdings’ break from service in 2007, and the introduction in 2010 of the contract document, change the contractual position? ¶55 Turning to the first issue, there was evidence that could support the conclusion that each engagement constituted a separate contract. Each of the shipping jobs was a discrete task, and they had clearly defined periods. As and when required, Sims would make contact with the drivers and offer jobs to those who were available. There was a pool of up to 23 drivers on Mr Goldie’s list and he would work through the list, to get the number of trucks he needed. If a driver was not available, he would go to the next one and so on. The evidence of both Mr Cox and Mr Goldie was that between ships coming into port, there was nothing stopping the drivers from doing other work. Mr Cox confirmed that he worked on other jobs. Thus, there was no expectation, or requirement by Sims, that Mr Cox would be available for each ship. Whilst Mr Cox said that he modelled his business around this type of work, this appeared to be his choice because he considered the job “semi-retirement”. ¶56 Further, Mr Goldie’s evidence that he gave drivers as much notice of a ship as possible, to enable them to plan around other work, is more consistent with each engagement being on a stand-alone basis. The length of each shipping job was also variable, depending on the tonnage of scrap to be transported and loaded. The drivers were paid, on a per tonne basis, on the completion of each ship. There was no suggestion on the evidence of any roster arrangement, whereby drivers were required to commit to be available in advance. I am not persuaded that Louisville Holdings remained in any contractual sense, on “standby” from ship to ship. As to the break in the performance of services, whilst there was some dispute on the evidence as to how long this was for, I am not persuaded that it is a factor of real significance either way. ¶57 Having regard to the above, there was no mutuality of obligation in existence, between Louisville Holdings and Sims, in relation to the performance of the work. ¶58 On the other hand, there are some factors indicating an ongoing arrangement. ¶59 The first and most significant was that Louisville Holdings performed services for Sims for more than thirteen years. The ships did arrive on a regular basis, around each six to seven weeks. Mr Cox also testified that it was rare to use a replacement driver, and he had to get permission from Sims to do this. Mr Cox characterised the relationship as Sims having the work and him providing the truck and trailers. Whilst Louisville Holdings said that specialised knowledge was required for the job, I am not convinced this is a strong factor supporting an ongoing arrangement. There was a pool of drivers who all knew the job. I regard this factor as relatively neutral. ¶60 Having regard to all of the evidence, it is not without some oscillation, that I have come to the conclusion that the arrangement between Louisville Holdings and Sims, up to 2010, was for the cartage of scrap metal on an as required basis. Each engagement stood alone, and a separate owner-driver contract came into existence on each engagement, on terms that the parties were accustomed to dealing with each other by. ¶61 The terms of the subcontract agreement, as exhibit R1, formalised in writing largely what had been occurring up to that time. This seemed to be common ground. The reason for Sims introducing it was not entirely clear on the evidence. The third page of the document refers to “Conditions of Contract” which set out some 21 points. Many of them appear to be instructions in relation to loading procedures, some concern safety procedures, and others deal with driver behaviour. In the absence of evidence on the point, it can only be speculation as to what extent these conditions confirmed then current unwritten practices and protocols. [Conclusion] ¶62 Having concluded that the owner-driver contracts were stand-alone contracts, for each ship to be loaded, the final contract between Louisville Holdings and Sims, for the “M.V. Nord Copenhagen”, from 19 to 23 March 2014, came to an end by effluxion of time, on completion of the ship on the appointed date. There was in my opinion, no contractual requirement for Sims to give notice of termination of the contract, by reasonable notice or otherwise. Having said that however, given that the parties had dealt with each other over a number of years, I consider that Sims should have, as a courtesy, made contact with Mr Cox, to explain its decision to no longer offer any further contracts for ship loading. To that extent, Sims did not handle the matter particularly well. Furthermore, given that there were complaints made about Mr Cox, he should have at least been made aware of them and given the opportunity to respond. ¶63 For the foregoing reasons, it is unnecessary for me to deal with the remaining issues of reasonable notice and breach of contract alleged by Sims. I must say however, the evidence led by Sims in relation to the allegations against Mr Cox, involved considerable hearsay evidence of doubtful probative value, should the Tribunal have been required to determine that issue. ¶64 The application is dismissed.