Application by Transport Workers’ Union of New South Wales for a Variation to the Transport Industry – General Carriers Contract Determination 2017 (Tolls and Charges) [2021] NSWIRComm 1009
The Transport Industry - General Carriers Contract Determination 2017 ("Determination") was first approved by Newall C in Transport Industry - General Carriers Contract Determination 2017 [2017] NSWIRComm 1013 handed down on 15 March 2017. The Determination took effect from 15 April 2017.
The Determination was varied by Webster C in an ex tempore decision handed down on 18 July 2019 in matter number 2019/48046 and in a further decision published in the same matter on 6 August 2019: Transport Industry - General Carriers Contract Determination 2017 [2019] NSWIRComm 1053.
Since it was first approved the Determination has contained clauses referring to tolls and charges. In its present form cl 25 is titled "Tolls and Charges". It provides only that "This clause is left blank intentionally". Clause 29(a) reserves leave for any party to make application to the Commission to vary the Determination so as to provide for toll charges.
On 28 August 2019 the Transport Workers' Union of New South Wales ("TWU") filed an application under s 320 of the Industrial Relations Act 1996 (NSW) ("Act") to vary the Determination ("Application"). One of the variations sought by the TWU was the amendment of cl 25 to allow for the reimbursement by principal contractors of toll charges incurred by contract carriers in the course of performing a contract of carriage. The Application contained a proposed cl 25 to replace the existing provision in the Determination.
The Application has been the subject of conciliation before the Commission, and discussions and correspondence directly between the parties, since it was filed. These discussions have resulted in further or counter-applications being made, with the result that there are now four sets of proceedings before the Commission seeking variations to the Determination and other relief.
Without for one moment diminishing the significance for both carriers and principals of the question of tolls and charges, the relief sought in the four matters before the Commission raise questions that might be regarded as having greater consequence for the industry as a whole. It is not necessary to traverse those issues. Suffice it to say, the TWU's claim in respect of cl 25 of the Determination appeared, for a time, to have become overshadowed by the other issues that have been agitated.
Following conciliation on 9 October 2020 I acceded to a request from the TWU that its application for a variation to cl 25 of the Determination be dealt with separately and in advance of the other matters arising in these and the related proceedings. Directions were made for the filing and service of evidence and submissions, and for that aspect of the proceedings to be heard today.
On 17 December 2020 I convened a further conciliation conference of all of the related matters. At that time, significant progress was made towards resolving the "tolls and charges" question.
Following a directions hearing on 2 February 2021 the TWU filed a Further Amended Application for Variation to a Contract Determination ("Further Amended Application"). Item 2 of Schedule B to the Further Amended Application contains a proposed cl 25 to replace the current term in the Determination. This provision is materially different to that first proposed in the original Application.
The TWU proposes that the variation take effect from 8 March 2021.
At today's hearing Mr P Boncardo of counsel, who appeared for the TWU, confirmed that the Further Amended Application has been served on all interested parties and that the TWU has received no communication from any party signifying any opposition to cl 25 of the Determination being amended in accordance with the Further Amended Application.
The other parties represented today are the Australian Industry Group, the Australian Road Transport Industrial Organisation, the Master Builders' Association of New South Wales, NSW Business Chamber Limited, TNT Australia Limited, Toll Transport Pty Limited, Crisis Couriers and ABC Couriers. Through their representatives those parties confirmed that they either consented to or did not oppose cl 25 being amended in accordance with the Further Amended Application. The only point of difference arose from submissions made by Mr Bray on behalf of the Australian Industry Group that the variation take effect from 5 April 2021.
In determining whether to make or to vary a contract determination, the Commission is to be guided by the considerations set out in ss 10 and 17 of the Act: Transport Industry - General Carriers Contract Determination 2017 [2017] NSWIRComm 1013 at [11]-[12]. The Commission must also have regard to the objects set out in s 3 and the general functions of the Commission as prescribed by s 146.
The TWU's application to vary cl 25 was, to use the vernacular, a slow train coming. From my involvement in these proceedings I am aware that the terms now proposed by the TWU are the result of considerable consideration by and negotiation between the parties. All parties have been willing to significantly depart from their preferred positions for which they are to be commended.
Having heard from the parties today I am satisfied, having particular regard to the fact that the matter presently before the Commission is either the subject of consent or is not opposed, that a variation to the Determination to replace the existing cl 25 with that proposed by the TWU would set fair and reasonable conditions for contract carriers. I consider that the requirements of the Act have been met. I find that it is appropriate to approve the variation sought by the TWU.
The only point of difference then remains the date on which any order should take effect. I observe, as Mr Boncardo pointed out, that one of the directions I made on 2 February 2021 was that any party who sought to challenge any aspect of the TWU's claim in so far as it related to cl 25 of the Determination, including the date of operation, was to notify the Commission and the other parties by midday yesterday. At the time of making that direction I indicated to the parties that it might be necessary, subject to any objections that were received, to consider whether the matter could proceed wholly by way of consent today or would require additional directions to be made. No such communication was received.
I observe that ARTIO consents to the date of operation being 5 March 2021. Mr Ward for the NSW Business Chamber, in what may not perhaps have been the most helpful of submissions, left it to my discretion. Toll Transport Pty Limited supported the position taken by the NSW Business Chamber.
From what has been said today it seems that there has been broad consensus between the parties on the terms of the proposed cl 25 since late 2020. That consensus could not have been obtained unless there was feedback received from those represented today from their members on the terms of cl 25 now proposed. It can come as no surprise to any party, or those that they represent, that a variation was going to be made today given that the terms of the clause itself are not the subject of disagreement.
Equally, I am, as Mr Ward said, cognisant that it sometimes takes longer than one would hope in implementing changes like this, in particular businesses. While it may be that I will be perceived as going for the convenient option of "splitting the difference" I propose that the variation take effect from Monday, 15 March 2021. That is one week more than the TWU sought but some time less than that proposed by Mr Bray.
[2]
Order and direction
I order that the Transport Industry - General Carriers Contract Determination 2017 be varied by replacing the existing cl 25 with the clause contained in Item 2 of Schedule B to the TWU's Further Amended Application for Variation to a Contract Determination filed on 2 February 2021.
This order is to take effect on 15 March 2021.
I direct the TWU to file short minutes giving effect to this order no later than Friday, 12 February 2021.
Damian Sloan
Commissioner
[3]
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Decision last updated: 08 February 2021