Application for approval of contract agreement - agreement approved for registration.
Source
Original judgment source is linked above.
Catchwords
Application for approval of contract agreement - agreement approved for registration.
Judgment (8 paragraphs)
[1]
Approval of a Contract Agreement under Part 3 of Chapter 6 of the Industrial Relations Act 1996. No issue of principle.
[2]
On 16 October 2025, FedEX Express Australia Pty Limited (the Applicant) filed an application pursuant to s 324 of the Industrial Relations Act1996(the IR Act), for the approval of a Contract Agreement made with the Transport Workers' Union of New South Wales , to be known as the FedEX Express Australia - TWU New South Wales (Contract Carriers) Agreement 2024 - 2026 The Application was supported by an affidavit of Ms Liza Tong, the Applicant's Regional Manager People Operations, dated 7 October 2025 .
(the Respondent)
(the Contract Agreement).
(the Supporting Affidavit)
The matter first came before me on 27 October 2025. Unfortunately, in its original form the Contract Agreement provided for a nominal term of less than 12 months (contrary to s 328(2) of the IR Act). The matter was relisted for Directions on 28 October 2025. In accordance with Directions made that day, on 21 November 2025 a final form of the Contract Agreement and a further supporting affidavit of Ms Tong dated 29 October 2025 (the Further Affidavit), were filed on 21 November 2025**.**
I shall mark the updated form of the Contract Agreement filed on 21 November 2025 Exhibit 1 (Ex1) in the Proceedings. I understand the Applicant, with the Respondent's consent, seek approval of the Contract Agreement in the form of Exhibit 1. I shall proceed on that basis. I note Ex 1 is signed by representatives of each of the Applicant and Respondent.
Section 322(2) of the IR Act relevantly provides an "association of contract carriers may enter into an agreement with a principal contractor, ... with respect to the conditions of contracts of a specified class made with carriers by that principal contractor ...".
The Respondent is an association of contract carriers. The Applicant is a principal contractor. The Contract Agreement is intended to rescind and replace the FedEx Express Australia - TWU New South Wales (Contract Carriers) Agreement 2022 - 2024, a contract agreement previously approved under Part 3 of Chapter 6 of the IR Act. The Contract Agreement has a narrow field of operation, which is to say the "specified class" of contracts of carriage to which it applies is narrow. The Contract Agreement provides that it (and the historical instruments to which it refers, generally referred to as the applicable contract agreements), "will only apply to Contract Carriers who were engaged under the applicable contract agreements referred to in this clause 6 prior to the Commencement Date": cl 6(i)(d). The Further Affidavit of Ms Tong confirms the Contract Agreement does not apply to all the contract carriers engaged by the Applicant, but applies only to "operationally distinct Contract Carriers who provide transport and cartage services for FedEx's network express operations": at [7].
The Contract Agreement provides it is to be read "in conjunction" with the "Determination", which is defined to mean the Transport Industry - General Carriers Contract Determination 2017 (the GCCD) and the Transport Industry - Mutual Responsibility for Road Safety (State) Contract Determination (the Road Safety Determination), and "any applicable contract agreements". It is not expressly defined, but in context the reference to "any applicable contract agreements" is clearly a reference to other "contract agreements" (which is a defined term) specifically referred to in the Contract Agreement, such as the "TNT Domestic and International Express ancillary Contract Determination and the applicable contract agreement" (emphasis added), and the instruments otherwise referred to such as the agreement applicable to former Riteway Transport Pty Limited Contract Carriers (Annexure A: cl 6(iii)), former McPhee Transport Pty Ltd Contract Carries (Annexure D, cl 6(iv)), and former Comet and Kwikasair Contract Carriers (Annexure H, cl 6(v)). The interaction rule between the Determination (or the applicable contract agreements), and the Contract Agreements found in cl 6(i)(c): it provides the Contract Agreement is to prevail "except as otherwise provided in this Agreement" (cl 6(i)(c).
I am satisfied that the Contract Agreement is an agreement of the kind contemplated by s 322(2) of the IR Act. The Contract Agreement is in writing, identifies the class of contracts of carriage to which it relates, identifies the parties, and is signed by a representative of each of the parties (s 322(4) and (4A) of the IR Act), noting in this connection the application is for the approval of an agreement between an Association of Contract Carriers and a principal contractor under s 322(2) of the IR Act, and not an agreement between a group of carriers and a principal contractor (within s 322(3) of the IR Act).
Section 325 of the IR Act provides:
[3]
325 Approval of contract agreement by Commission
(1) The Commission is to approve each contract agreement lodged for approval, but only if the Commission is satisfied that -
(a) the agreement complies with all relevant statutory requirements (including the requirements of this Part and of the Anti-Discrimination Act 1977), and
(b) the agreement does not, on balance, provide a net detriment to the drivers or carriers who are to be covered by the agreement when compared with the aggregate package of conditions of engagement under relevant contract determinations that would otherwise apply to the drivers or carriers, and
(c) the parties understand the effect of the agreement, and
(d) the parties did not enter the agreement under duress.
(2) This subsection applies to a contract agreement that applies to contracts of carriage entered into by some but not all of the carriers engaged by the principal contractor or contractors bound by the agreement, unless those carriers comprise a distinct geographical, operational or organisational unit. The Commission is not to approve such a contract agreement if it is satisfied that -
(a) the contract agreement fails to cover other carriers engaged by the principal contractor or contractors who would reasonably be expected to be covered, given the nature of the work performed under the contracts to which the agreement applies and the organisational and operational relationships between the carriers bound by the agreement and those other carriers, and
(b) it is unfair not to cover the carriers excluded from the contract agreement.
(3) The Commission is to follow the principles for approval set under section 33 (Principles for approval of enterprise agreements), with any necessary modifications, when deciding whether to approve a contract agreement, unless satisfied that any departure from those principles would not prejudice the interests of any of the parties to the agreement.
[4]
The parties have relied upon, and I have had regard to the Supporting Affidavit and the Further Affidavit. Collectively, they relevantly demonstrate:
[5]
(1) By reference to a detailed table comparing the rates and conditions in the Contract Agreement to the GCCD, that the Contract Agreement does not provide a net detriment to contract carriers it would cover (in fact, each condition is either equivalent to or more beneficial than that provided by the GCCD, including as to the rates).
(2) The Contract Agreement was the produce of "multiple discussions" commencing on 12 November 2024, including the Respondent, 6 contract carrier operators (appointed as delegates) engaged by the Respondent, and the management of the Applicant. It was endorsed by the contract carrier operators prior to it being signed by the parties.
(3) The Contract Agreement complies with the relevant statutory requirements, including an express acknowledgment that the Contract Agreement does not discriminate on the grounds of race, sex, pregnancy, marital status, status as a carer, disability, or any other characteristic protected by relevant discrimination laws (including the Anti-Discrimination Act 1977(NSW)).
(4) The parties did not enter into the Contract Agreement under duress, and signed it of their own will after negotiations, and that each party understood the content and effect of the Contract Agreement.
(5) The Contract Agreement does not apply to all the Contract Carriers engaged by the Applicant, but rather applies to to what I will refer to as a closed group of operationally distinct carriers in the Applicant's network express operations.
[6]
The Respondent confirmed there was no factual issue with the matters stated in the Supporting Affidavit. I understand there is no factual dispute about the additional matters addressed in the Further Affidavit.
Having regard to the terms of the Contract Agreement, the oral submissions received, the Supporting Affidavit (the content of which was not in dispute) and the Further Affidavit, I am satisfied:
[7]
(1) the agreement complies with all relevant statutory requirements. As to principles of the Anti-Discrimination Act 1977, the terms and conditions do not in terms differ based on gender. I note the parties have otherwise committed in cl 25 of the Contract Agreement to seek to achieve the object of preventing and eliminating discrimination in the workplace, including when dealing with disputes under the dispute resolution procedure.
(2) the agreement does not, on balance (or it would seem at all), provide a net detriment to the carriers who are to be covered by the Contract Agreement when compared with the aggregate package of conditions of engagement under the GCCD and the Road Safety Determination, which I understand to be the only relevant contract determinations that would otherwise apply to the carriers but for the Contract Agreement.
(3) the parties understand the effect of the agreement, and
(4) the parties did not enter the agreement under duress.
[8]
The specified class of contracts of carriage to which the Contract Agreement applies is described above. Noting there is no issue raised by the Respondent in this connection, I accept the evidence of Ms Tong that the class of carriers comprise an operationally distinct area of the Applicant's operations. There is no basis in the evidence for me to conclude some broader group of carriers would reasonably expect to be covered, or that it is unfair for other carriers to be excluded from the Contract Agreement: cf s 325(2).
I note the nominal term of the agreement is for a period of two years from 1 July 2024 to 30 June 2026. No party raised an issue with the commencement date preceding the date of approval. Section 328 of the IR Act deals with the term of a contract agreement, and provides it must not be less than 12 months nor more than 3 years. Section 323 provides the contract agreement does not have effect unless it is approved by the Commission. There is no express provision in either the IR Act, Division 6 of Part 2 of the Industrial Relations Commission Rules 2022, or Part 8 of the Industrial Relations (General) Regulation 2020 that would prohibit the approval of a contract agreement with a retrospective commencement date. I am satisfied the parties understand the effect of the agreement, and in that connection I note I was informed the rates payable and other conditions have been administratively paid already.
Pursuant to s 325 of the IR Act, the FedEx Australia - TWU New South Wales (Contract Carriers) Agreement 2024 - 2026 is approved.