Tuesday, August 21, 2007

The Key Issue of Fare Rises & Pay-in Increases & the Role of

5. The Key Issue of Fare Rises & Pay-in Increases & the Role of the Industrial Commission.
*Fixed Pay-in History

Discussion over how the Contract Determination was reached in 1984 has already been canvassed above in the historical overview of the industry. Below I wish to examine how more recent Industrial Commission decisions have further entrenched the unjust nature of the system and left bailee drivers open to greater exploitation and thereby tempted the owners to seek out more lucrative means of "corrupting public officials" in their search for greater profits and return on their investments.

By way of background here, the NSW Industrial Court, when deliberating on an application for pay-in rises by the TIA in 1986, requested that the TIA demonstrate the labour component in their application. The judge in this case found it remarkable that there was no consideration of the labour component in the TIA submission concerning their cost increases, (which invariably flow over into the revised taxi meter rate). The judge here was indirectly questioning and expressing his surprise at the lack of consideration as to minimum income levels of the workers. Income levels are a normal cost input factor that feature in all other industrial award hearings dating back to the Justice Higgins decision over minimum wage guarantees in the 1915 Harvester case.

The TIA could only argue that there was an inferred income that wasthe balance of the driver's takings after their pay-ins and expenses had been deducted from their gross takings. By way of background, following the 1984 Contract Determination the fixed pay-ins system was enshrined. Under this system the TIA was, and is still, unable to demonstrate that there exists any guaranteed minimum income level for bailee drivers. [Note the TWU in their pre-court conferencing in 1984 with the TIA consented [V14] to the withdrawal of Clause 8 of their original award submission(1979) that sought a guarantee of a minimum $30 per shift in income to drivers).[V-13]

Because their application for increased pay-ins from drivers was questioned in this manner in the late 1980s, the TIA, between 1989-1995, succeeded in skirting around this key issue and the law itself by brazenly ignoring their legal obligations. The TIA achieved this end year by year by making a simple announcement of an income boost to all taxi owners through advertisements in their own taxi magazine, claiming, "after consultation with the TWU" a pay-in rise of "x"% had been "agreed to by both parties". [See A7-A15j. In doing so, the TIA implied that an obligation to consult with the TWU was imposed uponthem by an instrumentality of the IRA (known as the Contract Determination) and that this was sufficient to legally effect a rise in driver pay-ins. However they ignored the fact that they had a second, and more fundamental pre-requisite to fulfil. That is to subject the results of their TIA/TWU consultations before the Industrial Court for approval. A third pre-requisite before any risein driver pay-ins was legal, was to await the gazetting of the Industrial Court decision in the NSW Industrial Gazette as is the law under Section 685 of the IRA/90 (and its predecessors} where changes or amendments to industrial awards must be listed.

Despite the fact that the TWU denied ever having reached such anagreement with the TIA in the 1989-95 period and even demanded in writing a retraction of such claims [A14-15], the TIA's illegal demands for higher pay-ins during this period were still enforced by all owners against all drivers in a climate of disinterest by the DIR prosecution section. The TIA in every case omitted to inform anyone of their obligations under Section 685 to gain prior approval from the Industrial Court for increased pay-ins.

This was done in successive years with the supposed agreement of theTWU who never mounted a legal challenge. The importance of this matter is that all fare rises and pay-in rises have a detrimental effect on driver incomes (related to obvious consumer resistance tofare rises and the drop in patronage or for that matter the increased cost of living that drivers themselves faced). In the face of TIA/TWU decisions to guarantee income rises to owners despite their illegality.

In 1993 (see Mok vs. Ahmed) an individual driver challenged this cyclical method of fare rise/pay-in rise extra judicial determination. The court established that the only fares (i.e. the maximum fare) that the TIA were entitled to charge over their taxi meters were the ones that had been gazetted in the Industrial Gazetteas required under section 685 of the IRA/90. [A5-6] In effect thisruling meant that all fare increases to the public between 1989 and then were illegal. Nevertheless neither the Attorney General nor the Dept of Industrial Relations, nor the (Consumer) Prices Tribunal even hinted at a prosecution of the TIA or the taxi owners. It fell on individual taxi drivers to refuse to pay the increased pay-ins.Naturally, without TWU support, individual drivers could not bargain against the powerful TIA who hide behind the illegal industry "consensus".

This situation continued on until 1996 when the TIA fronted the courtagain and demanded that all their illegal over-charging of the non-owner drivers (and hence the public through subsequent fare rise increases) should be retrospectively declared as lawful. The TWU leadership did not opposed this request from the TIA despite their entire sectional membership (TWU/TDS) strong objections. They did not even attempt to use it as a bargaining chip to win any new conditions or improvements for their members despite the enormous benefits that accrued to the taxi owners. They simply urged the Commission to support the TIA's submission claiming the union would "oppose it later". They never did! The overriding theme here is the issue of whether this collusion amounted to corruption? Did money change hands? Were promises made to individual union representatives regarding employment prospects within the industry, offers of cheapor free taxi shifts, etc.? What was in it for the DIR officials and politicians who did not object to these apparent deals between theTIA and TWU? I believe there is more than a little evidence which an ICAC inquiry could properly unearth.

Source: Sydney Taxi Corruption

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