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

EX TEMPORE DECISION

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.