issues

The NSW Government has indicated that at a near future date all new taxi plates will be issued for a yearly fee. Current Perpetual Plates and 50 Year Plates will continue to be transferable, but, no doubt, the market price will relate very closely to whatever the yearly fee is. No one knows that fee.

This is aimed at increasing the number of taxis on the road, of improving passenger services, and of obtaining revenue for Government. It will be a very mixed result for the industry. The current stranglehold on plates, and the ability to raise lease fees will be taken from the powerful plate lease management groups. Plate prices will drop, and the “superannuation taxi” will lose value. Not good news for some.

For drivers, it may give a chance to operate your own taxi. It won’t affect fares, but there may well be more cabs on the road, so it will affect your income. Pay-ins are unlikely to drop, but entitlements may be paid. The effective $3 a fare which now goes to plate investors can be better distributed as a fare saving to passengers or as an income offset / increase for drivers.

The ATDA wants to put a position and proposal to Government which advantages taxi drivers and ensures industry stability, and works with the Minister for Transport & Infrastructure for a best possible outcome, and one which will professionalize the taxi industry.

1. A yearly fee of $10,000 for a non-transferable unrestricted metropolitan taxi plate, and for country taxi plates an amount to be determined for each region, fixed for ten years.

2. The taxi plate lease term be equal to the period for which the nominated vehicle may be registered as a taxi. The fee to be payable yearly or monthly in advance.

3. A single plate be available only to a driver with a minimum of three years taxi driving experience who contracts to personally drive the taxi for a minimum of 4 day or 3 night shifts for 45 weeks a year, subject to reasonable emergency exceptions.

4. If that driver is an accredited operator he may employ drivers to drive the taxi at any other time.

5. The fee to be discounted by $500 for each completed year of taxi driving by the applicant beyond the qualifying first three years.

6. The Operators Training Course be available, and to be payable as a further discount of charges to accredited drivers and to be structured as a weekend / part time course.

7. The ministry to assist the development of new urban networks based on principles of “fee for service” with a minimal base annual fees such as may improve passenger services, and encourage innovative booking services and procedures. Additional country networks may follow, or a state–wide network for bookings be established.

8. The Ministry to publish comprehensive data on taxi numbers, utilization and passenger usage as to enable informed participation in the total process.

9. That funds generated from plate leases be dedicated to a new and comprehensive taxi security system to be progressively installed, maintained, monitored and with full on-line download facilities provided for approved purposes to all NSW taxis.

10. Consistent with the requirements for universally accessible public transport, WATS plates will continue to be made available, for an annual lease fee of, say, $2500, and with the primary condition of absolute preference for WATS bookings.

11. The existing purchase subsidy scheme for WATS vehicles be extended to all of NSW, and selection / development of a single ideal universal taxi be considered as a matter of urgency. There are a number of proposed such vehicles already available.

12. Promotion of the alternative WATS plate registration will assist the support of all stakeholders and reduce the legislative complications of the new plate system, should some stakeholders resist the Governments’ initiatives.

On Saturday morning at 2.30 am, a time at which most of Sydney is soundly sleeping, but at which, as a taxi driver I was out taking people home, in the absence of other public transport, I had an unavoidable crime committed against me.

It cost me anxiety, the loss of a one hundred dollar fare, and several hours of attendance with Police. I knew it was going to happen, as it has happened so many times before. I alerted, through the so-called taxi security system, the radio room of Taxis Combined Services as to my concerns. I could readily predict the outcome; and I could do nothing to forestall the events. And, unlike your bus drivers’, the loss is mine alone.

Worse, afterwards, the level of competence and awareness of so-called established procedures by both TCS radio room and Ashfield Police, left me dismayed and angry. I few years ago, I was involved with a task force set up by the then Ministry as the Taxi Safety and Security Taskforce. I made recommendations, along with Dave Madden, all of which, on the basis of current experience , were futile.

I am aware of plans for an update of the taxi camera security systems. I have already written to you of my views. Those views are confirmed by this experience. The system is and will be totally inadequate.

And that inadequacy is reinforced by the regulations under which a taxi driver is condemned to work.

Whilst available for hire, I am obliged to accept a hiring immediately when offered.

I can reject a hiring if the passenger cannot satisfy me that he is able to pay the fare.

I cannot obtain payment, or establish that the fare will be paid prior to completing the trip.

I cannot behave in an inappropriate or uncivil manner. I cannot enforce a payment.

It is a crime, and a crime facilitated by the ineptitude of the Ministry of Transport and Infrastructure and its staff. The thrust of the Madden Report was to encourage the reporting of evasions and like robberies or assaults. It was to make the circumstances less likely to occur, and to make the reporting a less onerous task.

As an industry, we have had the recent and sordid experience of a newspaper report on the “scandals” of catching a taxi late at night. I have personally taken up the issue of a driver required to “show cause” in the face of having been named and shamed to not accepting a hiring, even though he was not for hire. As drivers we in no way endorse touting or price gouging. But we would like to do our job in safety. What is wrong is the crowd control and traffic management – matters we would address and resolve.

How much simpler to dedicate Bayswater Rd at Kings Cross, or George St near Ivy Nightclub as being a taxi zone after midnight. George St at that time does not need to be a kilometer long bus zone.

I have been to Court with a driver charged with assault after he was beaten by a fare evader – and still he never got paid. I have made representations on behalf of a driver judged guilty of grossly uncivil behavior towards a female passenger, but in which process the Ministry made no efforts as to viewing camera footage as might assist a driver whose background and religious attitudes make such a case unlikely.

Our Association has drawn to the attention of the then Ministry the absolutely incredible situation where taxi drivers, believing themselves to be indemnified under Regulations of the Passenger Transport Act from costs or damages or excess payments arising from accidents, have been held to pay extortionate damage claims because the operator chooses not to make an insurance claim. And, at best , the solution is no more than a recommendation from “compliance” that the operator meets the claims. Fix the regulations.!!!

I have written to you and through your staff to seek a meeting and a process in which these issues might be moved to resolution. I get only a brusque reply that the matter is being addressed.

Recent articles in the Sydney Morning Herald would indicate that our taxi industry is being , and has long been, controlled by other than the Regulators. It notes a dominance of the industry by a few leaders of the corporate structure. We can do better.

And, in the area of the security and safety of taxi drivers, the current status, and that which is proposed is a shameful demonstration of a negligent attitude by the NSW Government.

I request a meeting such that the issues raised be effectively and urgently addressed.





Kings of the Road

The Australian Industrial Relations Commission will have an Award, from January 1st 2010 as the Passenger Vehicle Transportation Award, which covers taxi drivers who are employees.
It will be the law of the land and of the road.

It will provide the same basic conditions and entitlements for taxi drivers as for any other Australian worker. A minimum hourly rate of $16.00 for a 38 hour week. Penalty rates for overtime, weekend and public holidays. Annual Leave, Sick Leave, Superannuation and Insurance – even Parental Leave. And payment of income tax.

Will it actually cover the 60,000 or so taxi drivers in Australia ?? Maybe …

Historically, taxi drivers exist in a special relationship of being a bailee under a “contract of bailment” with a bailor taxi operator. That contract, which in almost all cases is an unsigned and unrecorded verbal agreement, is a contract to bail a vehicle for a period of time, between nine and twelve hours, and to use the vehicle to ply for hire as a taxi.

The bailment agreement is for the bailee to pay the bailor a percentage of the net fares or an agreed amount per shift. The various Industrial Relations bodies, especially in NSW, have managed to express this payment from driver to operator as being the same as remuneration paid from operator to driver, as required under the Taxi Drivers Contract Determination.

As such, the agreement to bail the vehicle is but one part of the relationship.

The fundamental issue is whether taxi drivers are employees.

Certainly we are “deemed employees” for Workers Compensation, Annual Leave and a raft of other entitlements. But are we “employees” ??

The Contract Determination says “no”. ( In Sydney, Newcastle and Wollongong)

The High Court, in relation to any obligation for a taxi operator to withhold and pay the driver’s income tax to the Australian Taxation Office, says “no”.
But the operator never held the revenue from fares, nor did he pay wages.

The Taxi Council Limited in NSW says ”no”.

Operators will be at pains to establish that no employee / employer relationship exists and will point to the Taxi Drivers Contract Determination, applicable to drivers in Newcastle, Sydney and Wollongong only, to validate that claim. The problem is that that the Determination was made in 1984 and has never been updated, and in 2009 it is unequivocally an “unfair contract”.

Under “Fair Work” minimum conditions it is an “unfair determination”.

To be a “permanent driver” requires a minimum of 45 hour a week, or more like 60 hours. A casual driver has no set-offs or compensations.

There are many more examples of it now being an “unfair contract”. A major flaw is that the set pay-in and fuel costs are much more than 50% of fares.

If we are employee’s, then there is no issue. The AIRC Award shall apply.

If we are not, we should be. Only as employees will we ever get the sort of industrial protection available to all other workers. Only if we are paid an hourly wage rate can we be sure of earning at least a minimum wage.

In 1996 the NSW Industrial Relations Act was amended to include Chapter 6 relating to Contacts of Bailment and Contracts of Carriage. The intention of Parliament, and of the then Minister for Industrial Relations, Mr. Geoff Shaw QC was to bring taxi drivers within the ambit, coverage and protection of the Industrial Relations System. Subsequent amendments have all highlighted the predicament of taxi drivers as lacking the protection given all other workers, and as a solution, deeming them to be employees within the NSW system, and for all references to employment to be taken as a reference to bailment. Regrettably the 1984 Contract determination has never been updated, despite a general requirement to do so, to properly reflect that intent.

Applying as it does to Australian Taxi Drivers the new AIRC Award will resolve all those issues. The ATDA has suggested a bailment formula to the AIRC which also gives a shared benefit to driver and operator from above average fare revenue, and recognizes the particular circumstances of taxi driving.

But ….

The real issue is that this Award may not be practicable in the current state of the industry. It may be fair and just, but it may not work.

The current fare structure simply cannot support an “employee driver”, not with all the legal entitlements and penalty rates, as well as the current operating costs.

Even if there was some way of ensuring that taxi drivers were actively seeking work, or of ensuring that every fare was recorded, there is no way of ensuring enough trips to provide revenue to cover all current expenses.

For an Operator to pay out $180 plus, per shift as wages to a day driver is not realistic. For an Operator to pay out $400 plus, per shift as wages to a Sunday day driver is not possible. For night shift drivers it’s even worse.

Not when average fares on a day shift are $200, and on a night shift are from $250 on Monday to $600 on Friday.

Not when operating costs are $95,045 a year to be split over the 450 shifts determined by IPART, the Independent Pricing and Regulatory Tribunal, which effectively sets fares (and pay-in’s ) in NSW, as the work pattern of an average taxi.

It can work if a few of the critical variables were modified absolutely, or conjointly:

If fares went up by a third to about $30.00 an average trip.
If average trips in an average shift were 20 trips.
If “Plate Lease Fees” were a Government fee of $2000 a year.

…. and pigs might fly …

It would be assisted by an impartial review of costs, which curiously have decreased in the Taxi Cost Index of IPART from over $100,000 in 2001 to $85,766 in 2009, net of non-existent entitlements.

If Insurance costs were re-assessed.
If Network Fees were examined

….. and elephants might fly also ….

A curious statistical sleight of hand has seen pay-in rates increase each year notwithstanding a continued downwards trend in actual Operator costs.
……………………………………………………………..

There is another side to the all of this …..

IPART has determined a fare structure which meets the criteria of covering the costs of providing a taxi service in NSW. IPART posits that an average taxi is operated by an owner/driver and it works five days and five nights a week for 45 weeks a year. IPART posits that in an average nine hour shift the taxi makes nineteen trips at an average fare of $21.88, or $416 per shift, exclusive of tolls and tips.

An average revenue of $187,075 is thereby generated.

The maximum pay-in, as per the Contract Determination, and as increased by IPART”s determination, is $170 per shift and, or $76,850 a year. That is the maximum sum total of revenue received by an operator bailing his taxi on Method II fixed pay-in. The well established fact that no driver pays, nor does any operator receive this amount, is of no concern to IPART.

With IPART’s figures of Fuel, Wash and other expenses added, ($20,782) but not the GST component which IPART still ignores, that establishes a maximum driver cost of $97,632.

An operators ‘operating costs’ of $95,045 is determined by IPART, including payment of the drivers Annual Leave ($9269). As ever before, that this amount is well in excess of revenue received by the operator, with or without Annual Leave obligations, actual or fictitiously ideal is of equal unconcern to IPART.

That the ATDA strongly disagrees with the IPART analysis and refutes the statistical input is not at issue at this point. We will assume the validity of those figures, even though they fly in the face of hard evidence provided.

In the potential situation of an Operator being entitled to collect, from the employed driver, all the fare revenue of $416 per shift and to pay wages of $16.00 an hour (plus penalty rates) totaling about $150 per nine hour week day or night shift, and all the operating expenses, totaling $212 on 450 shifts (or realistically, $158 per shift on 600 shifts,) it is workable. It even allows for a split of revenue in excess of average for any one shift.

If urban fares were increased on weekends and public holiday’s, as occurs in Country NSW, the penalty rates for those shifts would also be affordable.

The problem is that the average fare is not $21.88; nor are there 19 trips in an average shift; nor is the average shift of 9 hours. But those are the datum upon which IPART has determined a “fair” fare, and equally important that is the basis on which Operators have been happy to take pay-in increases.

Reality is that the average fare is about $20.00 ; there are now 10 trips in an average 9 hour day shift; and 30 trips on a 12 hour Friday night and the average cab works 600 shifts a year with two bailee drivers.

On that current basis the industry cannot afford to employ taxi drivers.

We need to review the variables and re-balance the interests of passengers and drivers, and of operators against the interests of the plate investors and networks, who contribute very little, but have major rewards.

No longer should the taxi driver as a worker, be he an employee or a bailee or both, bear the burden of an average hourly earning rate of $12.50 and be obliged to work five shifts of twelve hours to keep his job.

And nor should an operator bear all the risks. There must be a way forward, which ensures a “fair share of a fair fare” to all participants.

One way is for the average fare to increase to $25 ; for a better job system to lift jobs to an average of 20 per shift ; and for Government to open up an owner / driver plate license at the $2000 a year discount now available to fully accessible WATS type vehicles.

And to unequivocally classify taxi drivers as employees under a contract of bailment, with the obligations, benefits and protection of an industrial award.

Long winded commentary by

Michael Jools
President
Australian Taxi Drivers Association
Sunday, August 23, 2009

Natural Justice …..

Cabbies are bush lawyers. Most of us have an answer to just about everything, and with the passenger as a captive audience, we are always ready to give and / or express our ‘considered’ opinion. Here is a new topic.

In a Criminal Court, the accused’s prior record is not part of the process. If a jury finds the person guilty, the Court can then be given the record of the individual and the Judge can take that history into account in his sentencing.

But if action TV is our source of information, the past record does not impact on current issues.

Not so for the Ministry of Transport and its determinations.

All your records of complaints and indiscretions are made available to whoever it is that investigates complaints, including all those matters considered ‘unjustified’ or ‘no further action required’. It even includes matters where, having gone to Court and having the charges dismissed, the complaint is still on file. Worse, since you have no access to that file, you have no idea what matters are been considered.

As a bunch of bush lawyers, it seems to us that only the proven and established facts should be on record.

Anything less should not be available, or on the records, used to establish a “profile”.

It may well be the case that a driver has string of complaints about whatever, but unless a particular instance has a valid complaint, it should not be on his file. And, on the way, the driver should be able to see his file. In many cases the driver is not even aware of complaints made.

Natural Justice and procedural fairness.

And how about how long ? We are currently arguing on behalf of a driver, whose record of what might have happened twenty five years ago is being used as a justification for current MoT action. This is simply not reasonable.

And, at the same time, if a driver has a fare evasion about which he would like to see the MoT taking action …. Forget it.

The ATDA is helping in an assault charge against a driver who threw a light aluminum chair, in the interest of getting community involvement, in the general direction of two fare evaders who had assaulted him and has had absolutely zero support from the MoT.

The issue of assault and fare evasion has been forgotten. Why ???

Who cares about cabbies ????

“ Oh, it’s a Police Matter, not our problem……”

A Serious Insurance Issue

Taxi Drivers and Indemnity Insurance

In NSW we are lucky to have a Regulation which says “ Taxi Drivers to be Indemnified” and requires taxi operators to have insurance policies which indemnify the driver of all expenses arising from an accident. Nor is he liable for any excess payments. And, this is reinforced in Sydney, Newcastle and Wollongong, through the Taxi Driver Contract Determination, by which a bailee driver who in no way admits or repudiates a claim, is entitled to have all reasonable costs paid by the bailor.

In other States, and the rest of NSW, the driver is not covered in this way.

But now, a few smart operators have found the loophole – they are not required to make an insurance claim. And if there is no claim, it is open for the other party to claim damages and costs from the vehicle owner and the driver. And, because the driver is not an employee, there is no “vicarious liability” duty from the owner to the driver.

The first case has been to Court and the taxi driver has been found liable to pay damages and costs, and interest. About $6000.

There are six other cases, (and three of these are from the same operator) about to go to Court. The Australian Taxi Drivers Association is not happy !!!!

We have had “discussions” with the Minister’s office and the Ministry of Transport, and they are not happy either. But the problem is what can be done, and whether the Regulations could actually require an operator to lodge a claim. When the operator also has his own smash repair facilities and elects to “self-insure” there appears to be no power to require a claim.

And what is going to happen to the individual taxi drivers who now have insurmountable debts hanging over their heads. ??

Certainly the few dodgy operators taking this action have opened up the possibility that the Ministry could suspend or cancel their accreditation and licenses as not being “fit and proper persons”. The MoT uses this clause with wild abandon against taxi drivers, but they seem to be a bit reluctant to act against operators. Maybe they could enforce the other clause which says that proof of current insurance must be carried in the taxi ???

The Ministry has advised that, by the end of August, there will be an answer from the NSW Crown Solicitors’ Office. But, until then, and even afterwards, please drive very carefully as the accident you have may be very costly.

To make matters worse, we are not sure if is any way to protect the drivers’ interests other than to rely on the goodwill and decency of taxi operators.

Michael Jools President. Australian Taxi Drivers Assoc. 20th August 2007

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