Application for variation of the Transport Industry �e" General Carriers Contract Determination 2017 (2025 Variation) [2025] NSWIRComm 1106 (10 December 2025)

(1) Australian Federation of Employers and Industries;

(2) Australian Road Transport Industrial Organisation New South Wales;

(3) Courier and Taxi Truck Association;

(4) Fedex Express Australia Pty Limited;

(5) National Road Transport Association;

(6) NSW Business Chamber Limited;

(7) The Australian Industry Group New South Wales Branch;;

(8) The Master Builders' Association of New South Wales; and

(9) Transport Workers' Union of New South Wales.

1. It may be observed that two of the above-named entities were not named as respondents, namely Courier and Taxi Trucks Association and National Road Transport Association.
2. The matter first came before me on 24 November 2025. On that day Ms S Nasser appeared for the TWU, Mr Shaun Kelleher appeared on behalf of the Australian Industry Group and mentioned the matter on behalf of Fedex Express Australia Pty Ltd and Mr Rhys Kingston appeared on behalf of the NSW Business Chamber Ltd and mentioned the matter on behalf of Toll Group and Team Global Express.
3. It was identified at the directions hearing that further amendments were required to the application. Further, Mr Kingston advised that the NSW Business Chamber Ltd wished for cl 4.3 of the Determination to be varied. Clause 4.3 provides:

"A Principal Contractor shall provide every Contract Carrier it engages with a copy of any variation to this Determination within fourteen days of the commencement of the variation."

1. Mr Kingston noted that there was sometimes a delay between the making of the variation and its publication on the NSW industrial relations website. In circumstances where principal contractors cannot gain ready access to the variation made to the Determination they could end up being in breach of cl 4.3 of the Determination through no fault of their own.
2. In circumstances where another amended application needed to be filed, I suggested to the parties that they try and reach agreement as to a suitable variation to cl 4.3 that could be included in the further amended application. I then made the following orders:

1. Direct the applicant to file and serve an amended application for variation and a further affidavit in support by 28 November 2025.

2. The respondents are directed to indicate whether they consent to the amended application by correspondence to the Commission and to the Union by 3 December 2025.

3. If one or more respondents do not consent to the amended application, they should file and serve their proposed variation to the determination by 4 December 2025, and the matter will be listed for directions on 8 December 2025 at 9.30am by AVL.

4. If the parties consent for the amended application, the application will be determined in chambers on the papers.

1. The TWU complied with order 1 by filing, on 27 November 2025, a (further) amended application and a supporting affidavit sworn by Ms Wisniewska however, the (further) application did not include a proposed variation to cl 4.3.
2. On 1 December 2025 the TWU filed a (second further) amended application and another supporting affidavit sworn by Ms Wisniewska. This application included a proposed amendment to cl 4.3.
3. The Commission was copied in to an email from Mr Kelleher to Ms Wisniewska dated 2 December 2025 advising that the Australia Industry Group "does not object to the variations sought in the further amended application filed by the TWU on 1 December 2025."
4. The Commission was copied in to an email from Mr Kingston to Ms Wisniewska dated 3 December advising that "NSWBC and Team Global Express Pty Ltd do not oppose the amended application filed on 1 December 2025" and that "Toll Group have reviewed the amended application and do not wish to make any further submissions at this time."
5. On 5 December 2025, having become aware of the Commission's record of persons affected by the Determination and noting that Courier and Taxi Truck Association and National Road Transport Association had not been named as respondents and therefore may not have not been served with the application, and that not all named respondents had appeared at the directions hearing on 24 November 2025, I made the following orders in chambers to ensure that all interested parties had notice of the application:

1. The Applicant is write to all interested parties, including Courier and Taxi Truck Association, FedEx Express Australia Pty Ltd and National Road Transport Association, to advise that the Commission proposes to determine the Further Amended Application, in chambers, on 9 December 2025 on the basis that the application is consented to by all interested parties.

2. The Applicant is to file and serve an affidavit attesting to the service of the Further Amended Application and the Affidavit of Isabella Wisnieska, filed on 1 December 2025, on all interested parties; and to compliance with order 1, by 8 December 2025.

1. I note that I erroneously identified FedEx Express Australia Pty Ltd as not being a named party.
2. The TWU duly filed an affidavit sworn by Ms Wisniewska on 8 December 2025. Ms Wisniewska attested to having complied with order 1 made on 5 December 2025, by sending an email to all interested parties on 1 December 2025, and to having attached to that email the filed copies of the (second further) application and the affidavit sworn by Ms Wisniewska on 1 December 2025. A copy of that email was not annexed to the affidavit and in respect of at least the respondents who have not appeared, 'service' by email is not in accordance with rule 10.5 of the Uniform Civil Procedure Rules. Nonetheless, I am satisfied that reasonable efforts have been made to give all interested parties notice of the application.
3. In relation to the Courier and Taxi Truck Association Ms Wiesniewska gave the following evidence:

"23. As for the Courier and Taxi Truck Association, it is unclear whether this entity is still operational.

24. The TWU's experience with previous GCCD variation applications is that the Courier and Taxi Truck Association has not had involvement.

25. Further, the Courier and Taxi Truck Association does not have a webpage or contact method listed online.

26. The TWU copied the last publicly accessible email associated with the Courier and Taxi Truck Association in case, being ctta@bigpond.net.au into the email chain annexing a copy of the GCCD [General Carriers Contract Determination] variation application and supporting affidavit filed 1 December 2025. This email address is associated with Ms Kathy Robertson, Chief Executive Officer of the Courier and Taxi Truck Association.

27. The TWU has not received a response from either the Courier and Taxi Truck Association, FedEx Express Australia Pty Ltd and National Road Transport Association.

1. I am aware that on 31 August 2023 a Full Bench, cancelled the registration of "The Australian Courier and Taxi Truck Operator's Association" as an employing contractor pursuant to s 334(1) of the IR Act: Cancellation of Registration of New South Wales Road Transport Association and other Associations [2023] NSWIRComm 1089. While I am unsure whether The Australian Courier and Taxi Truck Operator's Association and the Courier and Taxi Truck Association are one and the same, in the circumstances outlined in in Ms Wisniewska's affidavit of 8 December 2025 I propose to direct the Registrar to remove the Courier and Taxi Truck Association, if appropriate, from the list of persons affected by the Determination.
2. I also propose to direct the Registrar to include Toll Group and Team Global Express as persons affected by the Determination, these being named respondents who had representatives attend the Commission when the matter was listed on 24 November 2025.
3. I also consider that National Road Transport Association, being an entity identified in the Commission's records as being affected by the Determination, should be formally joined as a respondent to the application.

1. The Determination took effect on and from 15 April 2017 and has been varied frequently since that time.
2. Schedule C of the Determination provides a procedure and a method of calculation for regular adjustment of the rates payable to contract carriers. Clause C.1.2 of Schedule C of the Determination requires that the 'union' is to make an application to the Industrial Relations Commission of New South Wales for a variation in rates and amounts in sufficient time for the variation to be made on or before 1 June and 1 December each year. While the initial and subsequent application were filed prior to 1 December, I note that the application upon which the TWU now moves was only filed on 1 December. Ultimately nothing turns on that for the reasons explained in paragraph [25].
3. The TWU's application is primarily to vary certain rates and amounts contained in Schedules A and B of the Determination, as set out in Schedule B to the application, in accordance with the method of calculation set out in Schedule C.
4. Contrary to clause C.1.1 of the Determination, the proposed adjustments to rates and allowances are to take effect from 1 January 2026, rather than 1 December 2025. No explanation for this delay was given, but I note that the parties who appeared on 24 November 2025 indicated their consent to course, which is otherwise a proposal advanced by the union on behalf of contract carriers, namely the beneficiaries of the increases to rates and other amounts payable.
5. The TWU also proposes that clause 4.3 of the Determination be varied so that it will read:

"A Principal Contractor shall provide every Contract Carrier it engages with a copy of any variation to this Determination within fourteen days of the variation being published in the NSW Industrial Gazette."

320 Variation or rescission of determinations

The Commission may vary or rescind a contract determination and, when it rescinds a determination, it may replace that determination with a new determination.

1. In Applications to vary the Transport Industry - General Carriers Contract Determination 2017 and Transport Industry - Courier and Taxi Truck Contract Determination [2022] NSWIRComm 1003 at [5] - [12] Commissioner Sloan set out the principles that the Commission should apply when dealing with applications to make or vary a contract determination. It is not necessary to set out in this decision all that Commissioner Sloan outlined as relevant in that decision. For present purposes it is suffices to repeat that:

(1) the authorities[1] have confirmed that, like an award a contract determination ought to set fair and reasonable rates and the overarching duty of the Commission when it is dealing with the setting of rates and conditions is that it must make rates and conditions which are fair and reasonable;

(2) in light the nature of the Commission's duty when making or varying a contract determination, the considerations set out in ss 10 and 17 of the IR Act provide appropriate guidance to the way in which a contract determination is to be approached;

(3) when making or varying a contract determination the Commission is to take into account the public interest and have regard to the matters set out in s 146(2); and

(4) the consent of the parties to an application to make or vary a contract determination is important and relevant, but is not of itself determinative. Ultimately the Commission must exercise its powers under the Act effectively regardless of the consent of the parties.

1. In support of the (second further) application the TWU relied on the affidavits of Ms Wisniewska sworn on 1 and 8 December 2025. The affidavit of 8 December 2025 repeated much of the information contained in the 1 December 2025 affidavit. The references below to evidence given by Ms Wisniewska are to her affidavit of 8 December 2025.
2. According to Ms Wisniewska, the variations proposed accord with the method of adjustment for rates and amounts set out in Schedule C of the Determination. Specifically, subclause C.1.4 states that adjustments to be made from 1 December shall take into account all movements in costs occurring and indices published up to the preceding 31 October. Ms Wisniewska gave the following evidence with respect to the proposed variations to the rates and amounts:

"31. One of the components that changed between these dates is the total labour cost.

32. The total labour cost component is adjusted according to the actual percentage change in the minimum weekly rate for the relevant transport worker grade in the Road Transport Distribution Award 2020 (Award).

33. The minimum weekly rate in the Award increased by the rate of 3.5%.

34. Further, schedule C of the GCCD provides a method of adjusting component prices such as service and parts, registration, licencing and insurances, training and compliance, capital, miscellaneous and fixed costs to reflect real world changes to component prices.

35. The calculations at Schedule B of the further amended application filed in the Commission were prepared in accordance with Schedule C, particularly schedule C.1.4 of the GCCD."

1. In respect of the proposed amendment to cl 4.3 of the Determination, Ms Wisniewska gave the following evidence:

"10. The change proposed by the TWU is that principal contractors will be required to provide contract carriers with copies of any variation to the GCCD within fourteen days of any variation being published in the NSW Industrial Gazette, rather than within fourteen days of the commencement of the variation.

11. The variation the TWU proposed to clause 4.3 will limit situations where principal contractors will be in automatic breach of the GCCD where variations to the GCCD are not published within fourteen days.

12. The proposed words were drafted to satisfy respondent parties' concerns about the fairness and operation of current clause 4.3 of the GCCD."

1. Ms Wisniewska gave the following evidence to satisfy the Commission that the Determination sets fair and reasonable remuneration and that the Commission would be satisfied that in making the Determination the Commission has complied with its obligations under ss 23 and 146 of the IR Act:

"36. The GCCD variation sought provides for equal remuneration and conditions of engagement for men and women, as the variations sought do not differentiate between rates and terms that apply to either men or women. Rather, rates and conditions are differentiated on the class of vehicle operated or equipment type used by the contract carrier.

37. The variation sought in the application should therefore offer equal remuneration and conditions for men and women who operate the same vehicle classifications and/or use the same equipment type.

38. The GCCD therefore provides for equal remuneration and other conditions of engagement for men and women doing work of equal or comparable value, as referred to in section 23 of the IR Act. On the basis that the proposed variations do not draw any distinction between remuneration and conditions of engagement to apply to contract carriers on the basis of gender.

39. The making of the variation by the Commission is in the public interest in that it would be consistent with section 3 of the IR Act given that based on my experience:

a. Schedule C of the GCCD is a term that was agreed to by the applicant and the respondents to ensure rates and allowances are adjusted bi-annually in a method that reflects real world changes to component prices;

b. adjusting rates pursuant to the method in Schedule C of the GCCD ensures that contract carriers to whom the GCCD applies have appropriate cost recovery, providing a method of remuneration for parties that is fair and just;

c. adjusting rates ensures contract carriers are sufficiently remunerated to ensure safe and sustainable road practices such as servicing vehicles regularly, adhering to fatigue management regulations, maintaining relevant insurances, etc;

d. the GCCD provides a framework for the conduct of industrial relations between contract carriers, principal contractors covered by the GCCD and their representatives;

e. the terms of the GCCD facilitate the regulation of the contracts of carriage entered into by contract carriers and principal contractors whom the Determination covers; and

f. proposed changes to clause 4.3 of the GCCD provide a framework that is fair and just, limiting instances of principal contractors breaching the GCCD where variations are not published within fourteen days of the commencement of the variation.

40. The making of the GCCD variation by the Commission would further be in the public interest in that the variation sought will provide stable and secure rates of remuneration and subsequent certainty of cost impact for contract carriers and principal contractors in New South Wales.

41. It is not foreseen that the state of the economy of New South Wales will likely be affected by the Commission varying the GCCD pursuant to the application, as the application merely seeks to pass on labour rate increases in the Award of 3.5% onto contract carriers, as well as adjustments to component prices and make a minor amendment to clause 4.3, which is a non-financial term of the GCCD."

1. I accept Ms Wisniewska's evidence. In the premises, and in circumstances where the variations proposed as to rates and amounts are consistent with an agreed formula and where no party affected by the Determination has indicated that they oppose the variations, I consider that the application should be approved.
2. At the listing of the matter on 24 November 2025 I drew the parties' attention to the fact that the Determination has not been published in a consolidated form since 1 March 2024. In those circumstances I gave notice that I proposed to direct the TWU to file and serve a consolidated version of the Determination for publication.
3. I make the following orders:

(1) National Road Transport Association is joined to the proceeding as a respondent.

(2) The Transport Industry - General Carriers Contract Determination 2017 is varied in accordance with the document titled 'Schedule B' attached to the Application for Variation of a Contract Determination filed on 1 December 2025.

(3) The variation will take effect from today's date noting that the new rates provided for in 'Schedule B' will only apply from the first full pay period commencing on or after 1 January 2026.

(4) The TWU is directed to file and serve a Word version of the consolidated Determination by no later than 17 December 2025.

(5) I direct that a copy of this decision be provided to the Registrar and that the Registrar add Toll Group and Team Global Express to the party card in relation to the Transport Industry - General Carriers Contract Determination 2017.

(6) I direct the Registrar, if appropriate, to remove Courier and Taxi Truck Association from the party card in relation to the Transport Industry - General Carriers Contract Determination 2017, in accordance with the procedure outlined in rule 6.7(7) of the Industrial Relations Commission Rules 2022 (NSW).

[1] Such as Transport Industry - General Carriers Contract Determination 2017 [2017] NSWIRComm 1013 at (Newall C).