Transport Industry âe" Car Carriers (NSW) Contract Determination (2025 Variation) [2025] NSWIRComm 1103 (8 December 2025)

The rates prescribed in Schedule 1 may be adjusted each year upon application to the Industrial Relations Commission of New South Wales.

1. The TWU's application is to vary certain rates and amounts contained in cll 7(i)(a), 8(vii) and Schedules 1 and 2 of the Determination, as set out in Schedule A to the application, with effect from the first full pay period to commence three months after the date on which the variation is approved by the Commission. 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 2.39% to the rates and amounts.
2. In addition, variation is sought to the quantum of the costs benchmarks and the weightings assigned to them, as set a table in Schedule 2.
3. The Respondent to the application is the Australian Industry Group New South Wales Branch (AIG), which is a registered organisation of employing contractors. I understand there are no other registered organisations who have an interest in the present application.
4. The matter came before me on 4 December 2024. Ms Sophia Nasser appeared on behalf of the TWU, however there was no appearance on behalf of the Respondent, AIG. In those circumstances I made the following directions:

1. Direct the Applicant to file and serve, by 5 December 2025, an affidavit attesting to service of the Application on the Respondent and as to any correspondence it has had with the Respondent regarding its attitude to the Application.

2. The Application shall be determined on the papers on 8 December 2025.

1. An affidavit affirmed by Ms Nasser was duly filed on 5 December 2025. Ms Nasser deposed to having sent a copy of the draft application to AIG on 20 November 2025, together with a Microsoft Excel document that demonstrated how the TWU arrived at the rates contained in its draft application. On the morning of 25 November 2025, Ms Nasser sent a further email to AIG seeking feedback prior to the TWU filing the application the following day.
2. According to Ms Nasser, at 11.27am on 26 November 2025, the TWU filed and served the application. It seems that 'service' was effected by the TWU copying AIG into the email it sent to the Commission attaching the application for filing, rather than by serving a sealed version of the application using one of the methods prescribed in rule 10.5 of the Uniform Civil Procedure Rules. In any event, a sealed copy of the application was provided to both parties by the Commission by email sent at 11.58am on 26 November 2025.
3. Following the listing of the matter on 4 December 2025 Ms Naser attempted to contact Mr Brent Ferguson, a representative of AIG by telephone. Thereafter she an email to Mr Ferguson attaching:

"a. Email of 20 November from the TWU attaching draft application and calculations, seeking feedback ahead of filing;

b. Email of 25 November from the TWU confirming intention to file application the following morning in light of no response;

c. Email of 26 November from the TWU filing the application and supporting affidavit of Sophia Marie Nasser in the Commission and serving on the Respondent;

d. Email of 26 November from the IRC Registry attaching the sealed application and affidavit;

e. Notice of Orders made by Commissioner McDonald on 4 December 2025."

"16. At 9:20AM on 5 December 2025 I attempted to contact Mr Ferguson via mobile phone to provide the Respondent with a final opportunity to indicate their position on the application. There was no answer.

17. I received a text message at 9:23AM from Mr Ferguson reading "Will call".

18. As at the time of affirmation of this affidavit I have not received a call from the Respondent."

1. At 5.02pm on 5 December 2025 the Commission received an email from Laren Brewer of AIG, with Mr Ferguson, Ms Nasser and Bradley Gibson of the TWU copied in, advising that AIG does not oppose the application.

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 application the TWU relies an affidavit affirmed by Ms Nasser, a legal officer for the TWU, on 25 November 2024.
2. Ms Nasser attested to having prepared the calculations contained in Schedule A to the Application in accordance with the 'Procedure and Time for Adjustment of Rates and Amounts' as set out in Schedule 2 of the Determination.
3. Ms Nasser also gave the following evidence:

"9. To the best of my 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 the 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. Rather, rates and conditions of engagement differ based on the carrying capacity of vehicles operated by contract carriers and the nature and location of work performed.

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

a. Schedule 2 of the Determination is a process that was agreed to by the applicant and the respondents (sic) to ensure rates are adjusted in a method that reflects real world changes to component prices;

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

c. 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.

11. The making of the 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 the New South Wales car carrying industry.

12. It is not foreseen that the state of the economy of New South Wales will likely be affected by the Commission varying the Determination pursuant to the application, as the application merely seeks to pass on adjustments to component prices as per Schedule 2 of the Determination."

1. 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 Respondent does not oppose the variation, I now make the following orders:

(1) Pursuant to s 320 of the Industrial Relations Act 1996 (NSW), the Transport Industry - Car Carriers (NSW) Contract Determination is varied in accordance with the document headed "Schedule A" attached to the Application for Variation of an Industrial Instrument filed on 26 November 2025.

(2) Order (1) is to take effect from the first full pay period to commence three (3) months after today.

(3) The Applicant is to file and serve a Word version of the consolidated Contract Determination which includes the approved variations by no later than 17 December 2025.

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