Taxi operators should be aware that all bailments of taxis to taxi drivers in the Metropolitan Transport District of Sydney are governed by the Taxi Industry (Contract Drivers) Contract Determination 1984 (Contract Determination).
Permanent bailee taxi drivers in the Metropolitan Transport District of Sydney who have driven for the same bailor for at least 12 months during which time they have completed a minimum of 230 day shifts or 220 night shifts are entitled to 5 weeks’ annual leave exclusive of public holidays occurring during that period. Permanent bailee taxi drivers who have driven for the same bailor for more than 3 months but less than 12 months are entitled to a proportionate amount of annual leave entitlements.
Permanent bailee taxi drivers are entitled to 5 days’ sick leave during the first year of driving for a bailor after the completion of 55 shifts in a 3 month period. During the second year and each subsequent year a permanent bailee taxi driver is entitled to 8 days’ sick leave. Untaken sick leave will accumulate.
Permanent bailee taxi drivers are entitled to long service leave after 5 years of continuous service in the same way as employees receive long service leave under the Long Service Leave Act 1955.
A permanent bailee taxi driver means “a bailee who regularly takes a taxi cab on bailment from the one bailor for 5 shifts per week or a bailee who regularly takes a taxi cab on bailment from the one bailor for night shifts at a rate of night shifts per week which would achieve 220 night shifts per year”. A shift is the usage of a taxi cab by a bailee for a period of at least 9 hours.
The monetary rates for entitlements for Method II taxi drivers are set out in Part B of the Contract Determination which is usually updated each year.Click on this link to see Part B of the Contract Determination as at the date of this article (October 2013).
The Industrial Relations Act 1996 prohibits bailors from contracting out of the Contract Determination. This means that arrangements between bailors and bailees whereby bailees agree to give up their rights to their entitlements are unenforceable. A typical arrangement which attempts to get around the Contract Determination is one where bailors agree to accept lower pay-ins in return for the bailee agreeing to give up part or all of their entitlements to sick leave, annual leave and long service leave. This simply does not work. Any taxi operator who makes such an arrangement is exposed to a claim by the driver for all unpaid entitlements.
Pursuant to the Industrial Relations Act 1996 a permanent bailee may make an application to the Court for an order that the bailor pay the bailee all monies that have become due to be paid within 6 years before the application is made. The practical effect of this is that a bailee can claim 6 years of unpaid annual leave entitlements and all unpaid long service leave. A bailor will not receive any credit for having reduced pay-ins even though it might have been agreed at the time that the reduction in the pay-ins was to cover foregone entitlements.
Bailors can also be prosecuted by the Industrial Inspector of the Department of Industrial Relations and receive large fines for failing to pay entitlements to their permanent bailees.
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This article is intended to provide general information in summary form on a legal topic, current at the time of publication. The contents do not constitute legal advice and should not be relied on as such. Formal legal advice should be sought in specific circumstances.
Prepared by Owen Ratner and Prerna Sundarjee