“I had been having a running dispute with the owner because he hadn’t paid my annual leave. When my mother became very sick, I applied to take my compassionate leave and long-service leave together. He refused to pay the full amount and had been denying me shifts. Eventually it went to the NSW Industrial Relations Commission,” he said.
According to Mr Hatrick, “the biggest problem lies in the unusual legal arrangement which exists between the owner of the vehicle and the driver, known as bailment”. This means that drivers are considered to be both sole traders and employees.
Under the Taxi Industry Contract Determination 1984, a bailee taxi driver is considered a permanent bailee if he or she has driven for the same bailor (owner) for at least 12 months, and completed 230 day shifts or 220 night shifts. The bailee is then entitled to five weeks annual leave, five days sick leave and long-service leave after ten years of continuous service.
However, for most taxi drivers these entitlements rarely see the light of day. “Owners do not automatically offer entitlements, so it is up to drivers to keep the records needed to prove their long-term status,” said Mr Hatrick. “Many drivers are migrants with limited English skills, so it’s very difficult for them to access information and educate themselves about their rights.”
Steve Novak, an organiser for the Transport Workers Union (TWU), is aware of the problems in the industry. “A common problem occurs because owners often make verbal agreements with the driver to accept lower ‘pay-ins’ or rental, in exchange for eliminating sick pay or holiday payments. Irrespective of these informal agreements owners are not exempt from their obligation to pay drivers their entitlements. Drivers are often unaware this is totally illegal or are bullied into accepting the conditions.”
Lack of access to leave entitlements is a growing problem in other industries too because of the rise in casual employment and more frequent job switching. According to the Australian Council of Trade Unions, “Australians are working harder than ever, but only one in four of us will ever qualify for long service leave”.
In 2010, Fair Work Australia recommended that a national scheme for portable long-service leave be investigated. “This would certainly help our taxi drivers, and a range of other transport workers,” said Mr Novak.
The TWU is currently running a survey to collect vital information needed to step up their campaign to improve conditions for taxi drivers. They have handed out 4,000 flyers at both the domestic and international airport terminals in Sydney.
