Evidence in Support of the Application
- In support of the application the TWU filed and served an affidavit affirmed by Ms Nasser on 13 December 2024.
- Ms Nasser confirmed that the application was consented to by the Second Respondent. In relation to the First Respondent Ms Nasser gave the following evidence:
12. On 22 November 2024, I sent email correspondence to the First and Second Respondents that contained copies of a draft application pursuant to section 320 of the Act and a Microsoft Excel document that demonstrated how the TWU arrived at the rates contained in its draft application. In this correspondence I sought feedback from the Respondents.
13. On the morning of 28 November 2024, I sent a further email seeking feedback prior to the TWU filing the application that afternoon. I received no response from the Respondents.
14. On the afternoon of 28 November 2024, the TWU filed and served its application pursuant to section 320 of the Act to the Respondents via email.
15. A stamped copy of the application was provided to the parties by the Commission via email that same afternoon.
16. The matter was listed for two directions hearings before Commissioner McDonald, on 6 and 12 December 2024, respectively.
17. The First Respondent did not enter an appearance and was not in attendance at these hearings.
18. Based on the consent position reached by the TWU and Second Respondent, on 12 December 2024 I provided the Respondents, via email, electronic copies of an amended application and proposed short minutes of order that reflected the consent position reached. In this email correspondence I requested that the Respondents provide me with any feedback and return a signed copy of the short minutes of order at their earliest convenience.
19. I received no response from the First Respondent.
20. I have made enquiries in the TWU's legal database to ascertain the usual level of engagement from the First Respondent in relation to applications of the kind made by the TWU. From these enquiries I have ascertained that there has been little to no engagement from the First Respondent in applications to vary the Determination since at least 2019.
21. During these enquiries I located email correspondence from the First Respondent from 2019 indicating that it had no members who engaged contract carriers covered by the Determination and that it would not appear in the relevant proceedings.
- In light of the above evidence, I am satisfied that the First Respondent has had sufficient notice of the application.
- Ms Nasser attested in her affidavit, that to the best of her knowledge and belief, the proposed terms of the Determination provide 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 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.
- Finally, Ms Nasser opined, based on her experience, as a legal officer employed by the TWU responsible for the negotiation and drafting of Contract Determinations and Contract Agreements, that the making of the variation would be in the public interest because:
1. it would be consistent with s 3 of the IR Act given that:
1. the Determination provides a framework for the conduct of industrial relations between contract carriers, principal contractors covered by the determination and their representatives; and
2. the terms of the Determination facilitate the regulation of the contracts of carriage entered into by contract carriers and principal contractors whom the Determination covers, including through providing for the resolution of industrial disputes pursuant to clause 4(v) of the Determination; and
1. the variation sought will provide stable and secure rates of remuneration and subsequent certainty of cost impact for contract carriers and principal contractors in the New South Wales car carrying industry and the broader New South Wales economy.