Sunday, March 14, 2010

NSW Upper House Transcript of MICHAEL JOHN HATRICK and Faruque Ahmed, Taxi industry activist

NSW Upper House Transcript of MICHAEL JOHN HATRICK and Faruque Ahmed, Taxi industry activist

MICHAEL JOHN HATRICK, Taxi driver, , , sworn and examined, and

FARUQUE AHMED, Taxi industry activist, affirmed and examined:

CHAIR: I understand you were not here earlier this morning, so there are just a few things I have to remind you of. In reporting the proceedings of this Committee you must take responsibility for what you publish or what interpretation you place on anything that is said before the Committee. The guidelines for the broadcast of proceedings are available from the secretariat.

Committee hearings are not intended to provide a forum for people to make adverse reflections about specific individuals. The protection afforded to Committee witnesses under parliamentary privilege should not be abused during these hearings. Therefore, I request that witnesses avoid the mention of individuals unless it is essential to address the terms of reference.

Do you wish to make an opening statement? By that I mean do you want to expand on any comment you made in your submissions or provide additional information to the Committee? There is no need to repeat your submissions as each of the Committee members has read your submissions.

Mr HATRICK: First, I would like to make one correction to the submission. I referred to the superannuation issue that went on in the Industrial Relations Commission. In my submission I refer to it as happening in the 1990s. It was actually in the first half of last decade. My experience as a taxi driver I will not dwell on except to say I have been a bailee driver, full-time tenure, since the year I started, 1979—to this day, unbroken tenure.

Throughout that period I have had a constant running battle with the bailor sector of the industry I have been engaged with throughout the whole time, over things like holiday pay, sick pay, security of tenure. I would say that just about every time I have managed to get an entitlement it has involved legal action of some sort. Very often it has involved going to be Industrial Relations Commission and thrashing it out there. In the early 1990s I was in the commission for a whole year and a half over an issue where a bailor sacked me without any reason or any notice simply on the basis that he thought he could do it because the contract determination said he could do it. That is about all I have to say regarding my experiences.

Briefly, I think there should be a judicial inquiry in the Industrial Relations Commission at preferably something like full bench level into the industry, similar to the inquiries that happened in the 1960s and the 1940s or 1930s. I refer to the Justice Beattie and Justice Edwards inquiries that looked significantly at the returns bailee drivers get from their split of the revenue from the taxi meter.

I would also like to raise concern about the condition of roadworthiness particularly, but also presentation, of many taxis in Sydney—quite significantly those taxis that are being operated by people who do not drive them, in other words, people who on both the afternoon and night shifts have other drivers. I have experienced terrible, deplorable, conditions in the whole of the time I have been working in the taxi industry. I think there should be regulation of the number of taxis plying for hire at any one time. I am totally opposed to deregulation of taxi licences. I think what we need is re-regulation; deregulation will just sink the ship to drown the rats.

With regard to the judicial inquiry I just pressed for, I think as an interim measure to get bailee taxi drivers' incomes back to some semblance of decency, reversal of the onus for the driver, the bailee driver, to pay for the fuel has to be reversed to where it was before, I think, 1996 when the Industrial Relations Commission moved that responsibility to pay for the fuel to the bailee driver.

CHAIR: Sorry, you confused me then. You are saying the person who should pay the fuel cost is the driver or the owner?

Mr HATRICK: The owner.

CHAIR: I thought you said the driver. So you are saying the owner should pay?

Mr HATRICK: Yes, the owner—just as an interim measure before things get the righted by a judicial inquiry. I heard during the last presentation brief mention made about the availability of taxis. I think if drivers were being paid a reasonable amount money as opposed to the unreasonable amount of money they are getting at the moment, you would see things like insurance costs start to fall, because at the moment it is a case of drivers working very often as I do, 70 hours a week, susceptible to numerous accidents. Once those insurance costs are reduced I believe that will lead to a freeing up of a lot of taxis that are being operated significantly by owner drivers who choose not to have bailee drivers working on the opposite shift because they do not want to pay the insurance costs involved in covering themselves for accidents during that duration of the shift. That is my presentation.

CHAIR: Thank you very much. Mr Ahmed, would you like to make an opening statement? Again, I ask you not to repeat anything that is in your submission. We have read those. If you want to add something that is not in your submission or explain something in your submission I would be grateful.

Mr AHMED: First of all, I would like to thank those people who made it possible to have an open inquiry like this one because it was long overdue. I saw that my submission was on the parliamentary website but not the whole submission. The preamble and critical issues were missing. I hope you would not mind if I put on the record my point, as I said in my preamble—

CHAIR: Before you do that, I should explain that the Committee resolved to suppress some of the submissions and some of the details of the submissions. That suppression remains until another decision, so I ask you not to read any extract of your submission that has been suppressed. I ask you whether you have anything additional to add, because we, as Committee members, have read it and we have digested it. Otherwise, I would just open questions from Committee members to you to obtain the information they need.

Mr AHMED: I will be pleased to do so but I just thought a couple of fundamental points I would like to make. As I said in my submission—

CHAIR: Again, I ask you not to simply read an extract from your submission that has been suppressed.

Mr AHMED: No, what I am trying to say is five fundamental points I would like to make. The taxi industry is a service-oriented industry. Service is the matter and taxi plates are the property of the State and the public. The taxi plate must be utilised for the benefit of the State and the public. If anybody else comes around, it is secondary and third. Taxi passengers have a right to have a safe and comfortable ride. Taxis have to be safe mechanically and comfortable. The same for workers, as it is a worker's workplace. As we know, in a civilised country it is the law that all moving vessels like planes, trains, steam engines and whatever, and any complex plants, have to be safe workplaces with safe working conditions, and duty of care provisions under the Occupational Health and Safety Act must be applied.

Keeping in mind these few points, we do not have to worry about who is an investor and who is a taxi industry mandarin. These objectives must be made public. Lawmakers and public servants who are paid by the public must reflect those fundamental conditions. Industry rules and regulations must protect the interests of the public and the State and provide the public and workers with a safe and comfortable workplace under the duty of care provisions in the health and safety Acts and so forth.

The Hon. GREG DONNELLY: Thank you for coming along today and for your helpful submissions. I direct my first question to Mr Hatrick. You described yourself as a full-time employee?

Mr HATRICK: A bailee.

The Hon. GREG DONNELLY: I should say a full-time bailee. Other witnesses to the inquiry have said that they feel essentially like casual employees. Because of the nature of the work in the industry their work feels very much like casual employment. In other words, the notion of working full time no longer exists. Would you like to comment on that?

Mr HATRICK: Yes. I think a lot of that is brought about by inadequacies in the contract determination. To my mind, a city such as Sydney, with a significant industry like the taxi industry, is deserving of an industry where people view their occupation as a career—as something more than picking fruit in Mildura. I think career paths can be made in the taxi industry as they have been in other cities in the world that I have heard about. Taxi drivers view their occupation in such a manner. Tokyo is one city that comes to mind and London is another.

Everything is set up in Sydney for that to happen but why is it not happening? I think a big reason for it is the Taxi Industry (Contract Drivers) Contract Determination 1984. I am not saying that there should not be a document like it—far from it—as I think their working conditions should be codified. However, it falls down in a lot of its provisions. A full-time driver is defined in the contract determination. Two shifts are mentioned in the contract determination—the morning shift and the night shift. I am sorry; I have forgotten the exact wording. Let us take it as a given that we are expected to work 12-hour periods. The first hurdle is the error in the 38-hour week. We are talking about five days a week, or 60 hours of work, and very badly rewarded work. No-one will enter that industry unless he or she is desperate for a job. Of those people very few will view their time in the industry as an end gain. It is a pathway to somewhere else, which I think is wrong.

The Hon. GREG DONNELLY: On the issue of the determination I might have misunderstood some evidence from a previous witness who might have been talking in general terms. I got the impression that it is commonplace for drivers to contract out of the determination and to operate outside the determination. The contract determination was put in place by the commission but many drivers operate outside it.


The Hon. GREG DONNELLY: Is that your understanding?

Mr HATRICK: According to a letter to us from a former New South Wales Minister for Justice, it is a class of contract. It is known as a class of contract; therefore, it covers everybody whether or not they know about it. When people talk about others contracting out of the determination, they are talking about one party to the contract determination contracting out of that determination, most often that party being the bailor because he has much to gain from doing that.

CHAIR: It requires both of you to sign it, does it not?

Mr HATRICK: It does now, yes.

CHAIR: You cannot really say that it is just a one-party contract; it still requires both parties to enter into the contract and to sign it, does it not?

Mr HATRICK: Whether or not it is signed, because it is class of contract, both parties have entered into it. In recent years all drivers have been required to sign and to acknowledge the existence of the determination. However, one party to the determination has contracted out of the implementation of the contract determination because he is in a position of much more power than the other party. If that party says, "Here are the official pay-in ceilings. I am not charging you these ceilings. I am not paying you holiday pay on account of that", that is contracting out of the determination by one party more than the other. The other party is having duress put on him. He has a job to do and perhaps he has a family to feed. Perhaps he is in an area where there are not too many taxis.

At one taxi base in Alexandria it has got to a point where the bailor makes the bailees sign a declaration every three months that they will not move to get their holiday pay or sick pay—or further down the track for that matter long service leave, but that is very much a bailor's wonderland in the industry—on account of not paying the maximum ceilings handed down every year by the New South Wales Industrial Relations Commission. I would argue that that is one party more than the other contracting out of the determination.

The Hon. PENNY SHARPE: You said that you had been a driver for 30 or 40 years?


The Hon. PENNY SHARPE: How many different owner-operators have you worked for in that time? I am trying to draw out some of your experience over that time. Aside from the contract issues relating to your employment I am interested in hearing your comments about the security of cab drivers and the different things you have experienced while working for different owner-operators.

Mr HATRICK: The operators that I worked for during that whole period have been managed cab bases. When I first started working for them the widows of taxi owners typically operated them, or taxi owners who were on holiday would plant their taxi, with its licence, to be operated by another person. I have worked at those bases.

The Hon. PENNY SHARPE: In the beginning was there a fairly direct connection between the owner of the plate and the operator and with you as the driver? Are you saying that that has changed over time?

Mr HATRICK: It has changed because anyone can own a taxi licence if he or she jumps certain hurdles. Those bases are now places where the base typically owns or leases the vehicle from somewhere, and leases the licence off an investor who may have no direct involvement at all in the taxi industry. I have worked for between six and 10 of those bases over time. In the early days I found that the cars were atrocious. They have improved somewhat but they are nothing like what I think they should be. The base for which I am working at the moment has its own mechanical facilities. I have worked at places where mechanical and panel-beating facilities have all been on the one site. At those bases I have had problems with enforcing the contract determination.

On one occasion my life was threatened. On many occasions I have been so put out by it that I have felt physically sick. When I was going on a five-week holiday I said to the owner, "I am going on holiday. I want my sick leave that you have not paid me plus my holiday pay for the last year or two that you have not paid me." I was subjected to a routine of, "We have just about got the cheque ready for you". I would run up there and they would say, "I am sorry about this; you will have to come back tomorrow." That went on for about four weeks. I had to cancel my one and only opportunity to travel to New Zealand to see my parents, as I always did. I have not always been very happy with the way in which the New South Wales Industrial Relations Commission has treated me when I have brought things to its notice.

On one occasion one bailor made a significant amount of money. He was prepared to pay me only about one-half or one-third of that. After a lot of toing and froing in the commission out of session the guy was made to pay me about half of what he owed me. He said that he was going out of business as a result of court costs and things like that. I said to the commission, "If in the future he goes back into the taxi industry can I get more money out of him? The answer was no. Within a few months I found out that he had not even sold the taxi that he owned and that he was driving taxis.

Ms LEE RHIANNON: Thank you for appearing before the Committee and for giving us an insight into the industry from a driver's perspective. I understand that taxi drivers are forced by regulation to be members of radio networks?


Ms LEE RHIANNON: Why is that the case? I also understand that they provide only 20 per cent of the work?

Mr HATRICK: I believe the original argument was that taxi drivers needed a level of protection that could be afforded to them only by way of radio contact between their vehicle and some other operation, such as a radio network.

Ms LEE RHIANNON: Are you saying that it was for safety reasons?

Mr HATRICK: I think that was the original thinking.


Mr AHMED: Its original purpose was for communication and for the safety of taxi drivers. That was its original purpose. It was manipulated and misused by the taxi industry mandarins. All taxi operators and owners were then compelled to become members of the taxi network. There are no checks and balances. Taxi networks are not accountable to anyone, including the Government. They can do whatever they like. For example, if taxi networks provide lousy services and fewer taxi drivers, fewer passengers would use the network and, as a result, they would open up fewer channels and employ fewer people. Their profit margin would go up and there would be an inherent and inbuilt incentive for the taxi network to reduce its services, make it difficult for drivers and passengers, and therefore make a profit. There are no regulations or laws that compel these networks to provide better service.

Ms LEE RHIANNON: Do you have any recommendations on what standards should be set up for the networks to be judged and to require them to improve services?

Mr AHMED: It is very simple. We all must be accountable to someone and I have been fighting for the last 20 years to bring networks under the control of the Government because at the end of the day the Government runs the whole State. Taxi networks must be accountable for their actions and if they fail to provide a proper service to customers and the drivers, if they fail to provide a safe workplace and safe practices—when an emergency comes operators have to be trained in how to handle an emergency involving taxi drivers, equipment must be functioning properly and if equipment does not function, like many employers networks are under the duty of care provisions of the Occupational Health and Safety Act and they will be penalised. Networks and network employees must be brought into order to comply with the Occupational Health and Safety Act and other laws of the land and behave like anybody else. There must be clear unambiguous law to make sure the taxi networks provide better service to the travelling public, the drivers and anybody else.

Ms LEE RHIANNON: I want to ask about taxi ranks in the city. I understand that the three taxi ranks in the city have never been tendered out and they are run by a security company linked to Premier Cabs. I wanted to hear from you how those taxi ranks are run and how you think they should be managed.

Mr AHMED: It is very difficult to explain for this reason: Sydney city is a moving city. For a number of reasons people hail a taxi anywhere and get out anywhere. In Sydney city there are no-standing and no-stopping zones, bus zones and this and that, so when we are picking up and dropping passengers anybody can take our number and take our photograph and send a ticket. We have very little recourse to address the problem. To make the situation a bit complex, we have been talking to council and many other people that will listen. Let us get some reality. Unlike Adelaide or some of those small cities, Sydney is a big city and moving fast, with people going from one building to another building and they want to get in and out for a number of reasons. So make it relaxed for taxi drivers. We are not there for a picnic; we pick up and drop and go for the next fare. Tolerate us. I do not want a middle of the road taxi rank. This is one issue. The second issue is—

CHAIR: Mr Ahmed, can I ask you to slow down just a little for the sake of Hansard.

Mr AHMED: I am sorry. I want to say many things. The city ranks are not properly organised or coordinated or concerned with the real worker, the people who provide the services for us. The taxi industry's notorious problem is false advertising and false presentation. I know that might not sound relevant to some people but it is very relevant. People who are acting against the wishes and interests of the public, taxi drivers and taxi owners claim to represent us, which they do not. For example, Taxi Council private limited is a private company that many people think is bigger than God. They put people in a Taxi Council vest just to subjugate and intimidate the driver and say, "Hey, we are the boss. You have to listen to us." That is the prime intention. It is not to provide safety support to the taxi driver. It is the other way around. They consume taxpayers' money.

I come back to the rank issue. The ranks are not properly consulted. There should be proper consultation and there should be lots of ranks where we know the movements are.

CHAIR: Again, could I ask you to slow down a little?

Mr AHMED: Sorry. We have to consult with the service provider, the drivers, and even I do not mind feedback from the public. We have to have new kinds of ranks, for a start. That component of Taxi Council guards is not there to provide any assistance to drivers or passengers; they are there to say, "Hey, I am the boss." That is their whole purpose. That has to be stopped because Taxi Council private limited is a private body that does not represent drivers or even owners. That is an inherent problem. Under various State and Federal legislation, unionism is not compulsory in Australia, but in the taxi industry, particularly in New South Wales, unionism is compulsory. A taxi operator or owner, whether they like it or not, has to be a member of Taxi Council private limited, which is a questionable organisation. The Taxi Industry Association is supposedly the taxi owners' industrial organisation. They have to be a member of it. The Passenger Transport Act, by stealth, forces everyone, whether they like it or not, to be a member of these two organisations. These two organisations have money and power in their hands and they are manipulating everyone.

I will give you just one example. There is no such thing as cherry picking but every Christmas and New Year the Taxi Council people [unclear]—

CHAIR: I am sorry, I did not understand the last thing you said.

Mr AHMED: The Taxi Council people go to the streets and produce an expensive pamphlet and use it to reinforce for bigoted reasons and grounds and to incite the public against taxi drivers. I have caught them and I have written to the Work Cover Authority—

The Hon. PENNY SHARPE: Are you saying that the Taxi Council hands out a document that is false and misleading at Christmas time?

Mr AHMED: Thank you, yes.

The Hon. PENNY SHARPE: Do you have a copy of that document?

Mr AHMED: Yes.

Ms LEE RHIANNON: Mr Ahmed, I am going to run out of time so if you could leave that document with us we can see whether we need to take it up. Mr Hatrick, I understand taxi drivers have to have a health check. Could you explain how that works and is it the case that Mr Brenton John Kermode undertakes the bulk of those health checks for Sydney taxi drivers?

Mr HATRICK: I have no knowledge of that identity doing health checks. I can only speak from personal experience. Once every five years I get something in the mail that requires that I go to a GP and have the GP fill out a questionnaire. I fill out another questionnaire and then I mail it to the relevant authority and my licence is renewed.

Ms LEE RHIANNON: That is all you have to do?


CHAIR: Again, the Opposition does not wish to take up any time so we will have four minutes of questions each for Government and crossbench members.

The Hon. GREG DONNELLY: In your submission, Mr Hatrick, you refer to previous investigations into the industry by the Industrial Relations Commission in New South Wales. Is it your view that it is time for that same commission or perhaps the Federal tribunal, Fair Work Australia, to look at the terms and conditions of arrangements for taxi drivers in this State?

Mr HATRICK: Indeed I do. I have been informed by an industrial lawyer that we fall under chapter (6) of the New South Wales Industrial Relations Act, which takes in another party, the lorry owner-drivers. Due significantly to the action of the Transport Workers Union in protecting lorry owner-drivers during the course of the Federal John Howard Liberal Government, those workers under the protection of chapter (6) are going to remain under the New South Wales State jurisdiction after everybody else in the workforce moves to the Federal jurisdiction. Taxi drivers will remain within the New South Wales jurisdiction. I have no criticism of that. The New South Wales jurisdiction has behaved quite honourably in the past towards bailee taxi drivers. I am speaking of the Edwards report in the late 1930s, I think, and the Beattie report of the 1960s, which laid down some very good law for the regulators to follow. In the meantime, since 1968 particularly, those recommendations that came from way up on high in the court system have been virtually eroded away, particularly by things like the contract determination. Even the very first base determination in 1984 was a significant eroding of those precedent-setting articles that were laid down by the 1968 Justice Beattie inquiry into the taxi industry.

If we remain under the New South Wales jurisdiction, let us put it to the New South Wales Industrial Relations Commission at a very high level—at either full court or full commission level—to do an investigation into this industry and make recommendations similar to what happened in 1968 and, I think, 1938.

The Hon. GREG DONNELLY: Just one more question. Part of the difficulty is that there seems to be no single organisation, if I can use that word, that speaks on behalf of taxi drivers. We have had different representations by individuals and organisations asserting they represent the interests of taxi drivers in this State, but there is no single voice. Do you have a view as to why that may be the case and there is no single voice that speaks with some real authority on behalf of taxi drivers as a group in this State?

Mr HATRICK: Indeed I do. Again, the failings of the determination are such that at no workplace, particularly where drivers are congregated en masse, at the managed cab bases—for instance, where I work they operate 81 taxis so you can imagine the number of drivers, casuals and permanents, involved in that. There can be no incentive for people to organise those yards. They have to be people on the ground, other drivers, simply because they are driving 60, 70 or 80 hours a week. They have no time between shifts to do the work necessary and pull everybody into some cohesive structure. The organisations other than the Transport Workers Union do not have standing in the Industrial Relations Commission, either in court or in commission session. Sometimes they have argued for and been given intervener status, but they have been stopped from being a party to the determination. Significantly, they were stopped in the mid-1990s when they applied to the commission for party status. After a day and a half of hearings they were told they could not do it. That applies to all the organisations outside the TWU.

The TWU's membership fees are such that it is very onerous on taxi drivers earning what they earn—what a checkout chick earns at a supermarket, roughly $16 an hour; that comes from a pretty well researched submission to IPART a few years ago—so they cannot afford the $500 a year it costs to be a member of the TWU in most circumstances. Because of all these years of low income, drivers have taken the opportunity from a cash industry to either avoid or evade tax altogether and that puts them further behind eight ball.

Ms LEE RHIANNON: There has been varying evidence given to the inquiry about the collection of information. I refer to call-out times. Do you have any view on how that data should be collected, for example, should the standard be measured against all calls, not just successful pick ups?

Mr HATRICK: In my opinion, yes, all calls. I do not know a lot about that. I have not had great participation in the IPART proceedings to which you are obviously referring.

Ms LEE RHIANNON: In part, and different arguments about data has been given to the Committee today.

Mr HATRICK: I think the more that is revealed about the success or otherwise of people calling for taxis the better. I am not really specialising in whether information is being withheld.

Ms LEE RHIANNON: Do you have a view about call-outs and how to collect the data? You are on the ground and see the results?

Mr AHMED: Again I was in belief that we are all accountable to someone and that should be checked for network and driver activity and so forth but unfortunately under the current legislation the operators and the network are not accountable for anything. I can give you one example which Mr Hatrick was referring to earlier. We know that before starting a complex plan checks are made, fire check, light check, everything is okay and then we start go to work. But in the taxi industry if you look at the worksheet, I might have a copy somewhere, it says under the regulation taxi owners do not have to go through the checklist. So there is a deliberate group who drive and run an unsafe taxi plate on the road. Again I question why, in that one, the providers have to be THE escape hatch? If you look at ICI, Caltex or any chemical plant you go through a checkpoint that everything is correct you start.

Ms LEE RHIANNON: Will you provide the Committee a copy of that form?

Mr AHMED: I will do that and I will provide a whole file. I was booked—it is another story—and I have proven to the court of law that the law is wrong, drivers should not be penalised. The daily worksheet for the drivers is useless. It has nothing to do with safety or managerial skills, it is just to intimidate the drivers, and I will stand by my comment. I went to the court. I put the whole thing. I have the whole file available to the Committee if you want.

CHAIR: Thank you for assisting this Committee with the information you have provided. The Committee has resolved that answers to questions taken on notice will be returned within 21 days. This will include, of course, any additional questions that the Committee may send to you on notice. The secretariat will contact you in relation to questions that you have either taken on notice or are provided subsequently. If you want to provide some documents to the secretariat I ask that you do so before you leave and the Committee will determine them during a deliberative.

Mr AHMED: May I make a request? When my friend Mr Hatrick honestly tried to answer the question of representation, probably in two minutes' time—I will try to be fast to explain why we have a problem in taxi driver representation.

CHAIR: We are out of time. You can provide that information on notice.