Interim Transport Industry – Concrete Haulage Contract Determination [2024] NSWIRComm 1045

The Amended Application

1. The Amended Application represents a significant departure from the application filed by the TWU on 6 February 2023. Rather than seeking variations to the Concrete Haulage CD, the Amended Application asks that the Commission make an interim contract determination, to be known as the "Interim Transport Industry - Concrete Haulage Contract Determination" ("Proposed Interim CD"), pursuant to s 313 of the Act.
2. The Proposed Interim CD comprises Sch B to the Amended Application. It reflects the terms of the Concrete Haulage CD, amended to include the terms agreed by the parties during conciliation in these proceedings.
3. The parties intend that the Proposed Interim CD will replace the Concrete Haulage CD. In addition to the making of the Proposed Interim CD, draft short minutes of order prepared by the TWU seek an order that that the Concrete Haulage CD be rescinded, pursuant to s 320 of the Act.
4. I note the following particular features of the Proposed Interim CD: 1. it is stated to operate with respect to contracts of carriage of Concrete (as defined in cl 17) throughout New South Wales in vehicles configured to cart 5 cubic metres of Concrete or more: cl 1.1(a); 2. it will not operate with respect to any contract carrier and principal contractor covered by one of the company-specific contract determinations, and a company-specific contract agreement, listed in Sch 2 to the Proposed Interim CD: cl 1.1(b); 3. it mandates that the principal contractor consult with affected contract carriers before exercising certain rights: cl 9; 4. it prescribes a "minimum safety net", namely that a contract carrier must be paid no less than $33.00 for each cubic metre of Concrete carted (and pro rata for part cubic metres rounded up to 0.2 of a cubic metre) during any pay period: cl 20.1; 5. it contains a disputes resolution procedure: cl 18; and 6. it provides that no contract carrier will suffer a reduction in their terms and conditions of engagement as a result of the making of the Proposed Interim CD: cl 19.
5. The Amended Application sets out, in brief form, the grounds on which the Proposed Interim CD is sought. They include the following: "3. The [Concrete Haulage CD] was first made as at 17 February 1989 and was last varied on 4 November 2008. 4. The [Concrete Haulage CD] was not varied since 4 November 2008 due to companies that would otherwise be covered by the [Concrete Haulage CD] establishing individual determinations. 5. Due to recent changes in the concrete haulage market, particularly the introduction of new vehicle types and new entrants into the market, the TWU seeks to make an interim contract determination, known as the Interim Transport Industry - Concrete Haulage Contract Determination to reflect rates and conditions appropriate for the 2024 market."

The hearing of the Amended Application

1. The Amended Application came before me for hearing on 23 July 2024. In all but one respect, there was no change to the parties represented before me. The exception was that rather than appearing for Hanson, ABLA mentioned the matter on behalf of that company. I will return to the significance of this.
2. With consent, I granted the TWU leave to file the Amended Application.
3. I had a discussion with the parties as to a notation appearing after cl 20.1 in the Proposed Interim CD, which was in these terms: "Notation: This is a safety net cartage rate set pending the finalisation of case 2023 of 39738." (Sic)
4. I expressed the view that were the Commission to make the Proposed Interim CD, it would dispose of the Amended Application, and conclude these proceedings. That is, the Amended Application is the only one currently before the Commission, and the making of the Proposed Interim CD is the only outcome sought in that application. Were the Proposed Interim CD to be made there would be nothing "pending…finalisation" in this matter (2023/00039738). The notation suggested that the parties thought otherwise. I queried whether, in the circumstances, the notation was indicative of a misapprehension on the part of the parties as to the future progress of the current proceedings.
5. Having discussed the matter with the parties, it was accepted by them that were the Commission to make the Proposed Interim CD, the current proceedings would have run their course. If they sought to seek further changes, whether under the second and third streams to which I have referred or otherwise, a new application to the Commission would be required.
6. The consequence of this discussion was that the Amended Application was further amended, by consent, to remove the notation referred to at [16] above. In the remarks which follow, and in the orders that I have made, the reference to "Amended Application" is to be taken to refer to the document as so amended.
7. In support of the Amended Application, the Principal Contractor Parties (presumably excluding Hanson) read an affidavit of Nigel Ward, the Chief Executive Officer and Director of ABLA, affirmed on 18 July 2024. In his affidavit, Mr Ward described his extensive experience in advising principal contractors as to their arrangements with contract carriers over some 40 years. This included a description of the work that he has done which has allowed him to acquire particular familiarity with the concrete cartage industry in Australia, and especially in New South Wales. Mr Ward stated that he has assisted principal contractors to negotiate contract carrier arrangements in all States and Territories in Australia. He deposed that he has developed an expertise in designing and building contract carrier cost and rate models, and that he has produced several hundred such models since 1985. A cost model that he developed formed the basis of the rates of pay contained in the Transport Industry - General Carriers Contract Determination 2017.
8. Mr Ward's affidavit also included the following: "The Concrete Industry … 12. It is ordinarily the case in the New South Wales concrete industry that contract carrier vehicles are utilised primarily by larger concrete companies; these are set out in paragraph 23 below. 13. Separate to these companies there is a recent entry to the market; Gunlake. I have contacted Gunlake to confirm whether they operate any contract carriers and they do not instead utilising employee drivers for their vehicles. 14. There are a limited number of small operators in the New South Wales market, many of whom utilise mini vehicles operating under the 5 cubic metre threshold in the proposed Interim Contract Determination (ICD). 15. I have made enquiries of the membership database of the NSW Business Chamber Ltd and have been unable to identify any company currently operating contract carrier concrete cartage vehicles carting more than 5 cubic metres of concrete other than those identified at Schedule 2 of the ICD that is proposed to be made. 16. I have also discussed this matter with the Australian Industry Group, and they have confirmed that they have no practical membership interest outside of some Principal Contractors set out in paragraph 23 below. … Cartage Rates 18. I am broadly aware of the cartage rates paid by Principal Contractors for carting concrete in New South Wales. 19. I am also cognisant that cartage rates are a sensitive matter for the industry from both a commercial and competition law perspective. 20. The proposed minimum safety net rate of $33 per cubic metre has been informed by my knowledge of cartage rates that are currently paid and in the knowledge that the cartage rate is applicable as a safety net for all contract carrier vehicles carting in excess of 5 cubic metres of concrete. 21. Through my experience, I am aware of the typical costs involved in concrete cartage and applicable contract carrier cost models (including fixed costs such as assets and variable costs such as fuel) as they operate today across the industry in New South Wales. 22. Based on this experience and knowledge, I believe that $33 per cubic metre represents a reasonable minimum safety net in the context of an interim contract determination pending finalisation of the matter. Terms and Conditions 23. The terms and conditions set out in the proposed ICD have been formulated based on my knowledge of the current contract determinations and contract agreement applicable to: (a) Hy-Tec Industries Pty Ltd; (b) Metromix Pty Limited; (c) Boral Resources (Country) Pty Ltd; (d) Boral Resources (NSW) Pty Ltd; (e) Hanson Construction Materials Pty Ltd; and (f) Holcim (Australia) Pty Ltd. 24. Accordingly, the terms and conditions in the ICD reflect typical matters (and approaches to dealing with those maters) found in instruments regulating the cartage of concrete in NSW by contract carriers. 25. As such based on my knowledge and experience I believe that the terms and conditions in the proposed ICD reflect typical standard practice across the concrete industry in NSW."
9. ABLA also relied on written submissions. They included the following: "3. The [Concrete Haulage CD] was made 17 February 1989 and was last varied on 4 November 2008… 4. The [Concrete Haulage CD] has in effect [lain] dormant for 16 years. 5. This circumstance arose because the 'major' concrete principal contractors moved through the 1990's to adopt separate company specific industrial instruments, the current version of which are set out in Schedule 2 to the TWU's amended application. 6. The [Concrete Haulage CD] has in effect failed to remain current and as such does not reflect current standards operating in the NSW concrete industry. 7. The purpose of the amended application is to make an interim contract determination (ICD) that, in effect, introduces acceptable terms and conditions to operate as a base standard while allowing 'major' principal contractors and their contract carriers to continue with their own arrangements that have evolved over the past 20 years to varying degrees of sophistication and differentiation. This is especially the case in terms of how these 'major' principal contractors have adopted differing cartage rate cost models and utilisation-based cartage rates from those models. 8. The making of the ICD is not intended to end the process but rather operate as a fair and reasonable interim position in the matter."
10. At the hearing, the TWU confirmed that it relied on the evidence and submissions which had been filed on behalf of the Principal Contractor Parties. It made two further submissions.
11. First, the Commission should have regard to the extensive conciliation which preceded and resulted in the Amended Application. The TWU submitted that the involvement of the TWU and its delegates, and management representatives from Holcim, would incline the Commission towards exercising its discretion to make the Proposed Interim CD.
12. Second, the "minimum safety net" cartage rate in cl 20.1 of the Proposed Interim CD was the result of compromise, not of the application of detailed accounting calculations. The TWU submitted that as a consequence, the rate may not reflect "true cost recovery", although it accepted that for present purposes the rate is fair and reasonable as a minimum safety net.
13. On the evidence and submissions, and having regard to the law and principles set out below, I would have been inclined to make the Proposed Interim CD at the hearing. However, it was necessary for me to consider the position put on behalf of Hanson.
14. As I observed above, ABLA did not appear for Hanson at the hearing, but mentioned an appearance on its behalf. I was informed that despite not having played an active part in, or engaged meaningfully with ABLA in respect of, the proceedings, Hanson had informed ABLA on the morning of the hearing that it needed additional time to consider the Amended Application and Proposed Interim CD. Hanson requested, through ABLA, that it be given further time to consider the Amended Application. Reluctantly, I made directions requiring Hanson to inform the Commission of its position by 4.00pm on 25 July 2024, and that in the absence of any objection or response I would proceed to make my decision in respect of the Amended Application.
15. On 25 July 2024, the Registry received an email from ABLA. That email informed the Commission that Hanson "does not oppose the Amended Application".

Relevant law and principles

1. Pursuant to s 313(1) of the Act, the Commission is empowered to inquire into any matter arising under contracts of carriage and to make a contract determination with respect to remuneration of the carrier, and any condition, under such a contract.
2. Section 315 of the Act provides that when an application is made for the Commission to make a contract determination, it must conduct a conference at which it is to, amongst other things, "take all reasonable steps to effect an amicable settlement of any matters in dispute". It is not controversial that this requirement has been met in the present case.
3. In exercising its functions under the Act, the Commission must take into account the public interest and, for that purpose, must have regard to, amongst other things, the objects of the Act: s 146(2). Those objects are contained at s 3 of the Act, which relevantly provides: 3 Objects The objects of this Act are as follows - (a) to provide a framework for the conduct of industrial relations that is fair and just, … (e) to facilitate appropriate regulation of employment through awards, enterprise agreements and other industrial instruments, … (h) to encourage and facilitate co-operative workplace reform and equitable, innovative and productive workplace relations, …
4. In Transport Industry - General Carriers Contract Determination [2016] NSWIRComm 3, Kite AJ (as he then was) observed: "30. A number of parties made reference to the decision of Haylen J in Transport Industry - General Carriers Contract Determination Application by Australian Road Transport Industrial Organisation, New South Wales Branch for removal of Special Fuel Price Surcharge [2010] NSWIRComm 133 ('Special Fuel Price Surcharge Case'). In that matter his Honour stated at [16]: There was no dispute between the parties that there was a general and wide discretion provided by s 320 of the Act to vary a Determination. It was broadly accepted that, in exercising that power to vary a Determination, the Commission may be guided by similar considerations contained within s 10 and s 17, namely, that the Determination should set fair and reasonable rates and that in making a variation, the public interest is to be considered provided there is a substantial reason for making the variation. … 34. It has long been recognized that Industrial Tribunals are in a different position to the general courts. The duty of the Commission is to make an award or determination which prescribes fair and reasonable rates and conditions. In doing so the Commission is not bound by the rules of evidence or to act in a formal manner but 'is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.' See s 163 (1)(c) of the Act. 35. The various authorities referring to the 'onus' [borne] by a party are to be understood in that context. There must be information before the Commission which allows it to be satisfied that the determination or award, if made, will provide just and reasonable rates and conditions. The assessment of the adequacy of that material will vary according to the nature of the case, including the degree of consent, before the Commission: see In re Butchers, Wholesale (Cumberland) Award 1971 AR 425 especially at 437- 440. 36. I intend to approach the matter in that light." (Emphasis in original)
5. In Transport Industry - General Carriers Contract Determination 2017 [2017] NSWIRComm 1013 Commissioner Newall observed that, like an award, a contract determination ought to set fair and reasonable rates. 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: see [12] and [16].
6. It is significant that the Amended Application comes before me by consent, particularly as the parties include two registered organisations, namely the TWU and NSW Business Chamber Limited. I accept as correct the following assertions in ABLA's written submissions: "18. There are various legal authorities dealing with the relevance of consent or consensual positions. In this regard we refer the Commission to the authorities of In Re Carpenters and Joiners and Bricklayers, Construction (State) Award [1968] AR 32; In Re Carpenters and Joiners and Bricklayers, Construction (State) Award [1969] AR 442; Transport Industry (State) Award - Application by Transport Workers' Union of Australia, NSW Branch for a new award; Application by Employers' Federation of NSW for variation of award [2000] NSWIRComm 42. 19. It should be said that these authorities were considered in a slightly different statutory contexts [sic] to the one currently arising, however they advance and support a general proposition that a consensual position advanced by major participants of an industry sector should carry weight in how the Commission exercises its discretion."

Determination

1. I have considered the evidence and submissions. I am particularly mindful that the Amended Application is the result of conciliation between the parties and is brought by consent. I am satisfied that: 1. the Proposed Interim CD would set fair and reasonable conditions for the contract carriers to whom it will apply; 2. the making of the Proposed Interim CD would be consistent with the objects in s 3 of the Act; and 3. it is appropriate that the Concrete Haulage CD be rescinded.
2. It follows that I am persuaded that orders ought to be made, largely in accordance with the draft short minutes of order proposed by the TWU. As I have already observed, the making of those orders will dispose of the Amended Application, and conclude these proceedings.
3. That said, it is clear that the parties intend to continue their discussions with a view to reaching agreement on the matters that I have described as falling within the second and third streams referred to above. The parties have also flagged the need to revisit the terms on which contract carriers to whom the Proposed Interim CD will not apply, that is, those driving vehicles configured to cart less than 5 cubic metres of concrete, are engaged. This may include consideration as to whether the Concrete Haulage - Mini Trucks Contract Determination, which to my knowledge has not been reviewed or amended since it was made on 3 September 1983, ought to continue to operate as a separate instrument. Clause 1.3 of the Proposed Interim CD reserves to the parties leave to apply "as they see fit" to amend the instrument.
4. It follows that the making of the Proposed Interim CD should not be taken as reflecting agreement between the parties, or as an indication from the Commission, that all matters arising from the application filed by the TWU on 6 February 2023 are resolved. There is still work to be done.

Orders

1. I make the following orders: 1. pursuant to s 313 of the Act, I make a contract determination to be known as the Interim Transport Industry - Concrete Haulage Contract Determination in the terms contained in Schedule B to the Amended Application; 2. pursuant to s 320 of the Act, the Transport Industry - Concrete Haulage Contract Determination is rescinded; and 3. these orders take effect on 26 July 2024. Damian Sloan Commissioner

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 July 2024