Transport Industry – Car Carriers (NSW) Contract Determination (2024 Variation) [2024] NSWIRComm 1080 - NSWIRComm 2024 case summary

Industrial Relations Commission (NSW)|2024-12-19

DECISION

This is an application made by the Transport Workers' Union of New South Wales (TWU) to vary the Transport Industry - Car Carriers (NSW) Contract Determination (Determination) pursuant to s 320 of the Industrial Relations Act 1996 (NSW) (IR Act).
The TWU is registered as an association of contract carriers in accordance with s 335 of the IR Act. The TWU is also the 'Union' as defined in cl 1 of the Determination.
The Determination took effect on and from 23 May 2008 and has been varied frequently since that time.
Schedule 2 of the Determination provides a procedure and formula for regular adjustment of the rates and amounts payable to contract carriers covered by the Determination. Clause 1 of Schedule 2 provides: The rates prescribed in Schedule 1 may be adjusted each year upon application to the Industrial Relations Commission of New South Wales.
The TWU's application is to vary certain rates and amounts contained in Schedule 1 of the Determination, as set out in Schedule A to the application. I understand that the variations proposed accord with the method of adjustment for rates and amounts set out in Schedule 2 of the Determination. In summary, the adjustments are made by reference to calculated weighted movements in relevant cost benchmarks, calculated at the end of the September quarter each year. In this instance, the application of the adjustment formula results in a total increase of 4.05% to the rates and amounts.
The named Respondents to the application are registered organisations of employing contractors.

Relevant Principles

Section 320 of the IR Act provides: 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.
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.

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.

Orders

I accept Ms Nasser's evidence. In the premises, and in circumstances where the variation proposed is consistent with an agreed formula and where the Second Respondent consents to the variation and no objection has otherwise been made to the variation by any interested party, I now make the following orders by consent: 1. Pursuant to s 320 of the Industrial Relations Act 1996 (NSW), the variations as set out in Schedule "A" to this Decision are made to the Transport Industry - Car Carriers (NSW) Contract Determination. 2. Order (1) is to take effect on and from the first full pay period to commence three (3) months after the date which the variation is approved by the Commission.
In light of Ms Nasser's evidence regarding the First Respondent I also make the following direction: (3) I direct that a copy of this decision be provided to the Registrar and that the Registrar remove the First Respondent from the party card in relation to the Transport Industry - Car Carriers (NSW) Contract Determination in accordance with the procedure outlined in rule 6.7(7) of the Industrial Relations Commission Rules 2022 (NSW). Janet McDonald Commissioner

Endnote

Such as Transport Industry - General Carriers Contract Determination 2017 [2017] NSWIRComm 1013 at (Newall C). 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: 19 December 2024

Transport Industry – Car Carriers (NSW) Contract Determination (2024 Variation) [2024] NSWIRComm 1080

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