On 20 March 2025, the Transport Workers' Union of New South Wales (the Applicant) filed an application pursuant to s 324 of the Industrial Relations Act , for the approval of a Contract Agreement made with AirRoad Pty Limited , to be known as the , with a nominal term of 2 years (cl 7 of the Contract Agreement).
1996
(the IR Act)
(the Respondent)
AirRoad and TWU Contract Agreement 2025
(the Contract Agreement)
The matter first came before Commissioner Webster on 10 April 2025. Regrettably, the application and supporting affidavit was insufficient to enable Commissioner Webster to properly consider and determine the application. In particular, the supporting affidavit did not comply with Rule 6.9 of the Industrial Relations Commission Rules 2022 (including, importantly, the requisite comparison between the conditions of employment provided by the Contract Agreement and those provided by any contract determination over which the agreement would prevail).
Directions were made for the filing and service of additional material. That additional material (discussed below) was filed on 22 May 2025.
On 30 May 2025 this matter was reallocated to me and was listed before me on 5 June 2025.
In the result, the finalisation of the application has taken longer than one might ordinarily expect for an application of this kind. In future, I would encourage the parties to have close regard to Rule 6.9 and the principles for approval of enterprise agreements, (see Review of the Principles for Approval of Enterprise Agreements 2021/2022[2022] NSWIRComm 1005) which must ordinarily be followed when considering approval of a contract agreement under Part 6 of the IR Act (see s 325(3)), and the helpful checklist outlined by the President at paragraph [88] of his Honour's decision in State Super Enterprise Agreement 2024 - 2027[2024] NSWIRComm 8.
The form of the Contract Agreement is somewhat unusual. In terms, it has 8 clauses, cl 4 of which relevantly provides in subclause (i): "The terms and conditions of the contract carriers engaged by AirRoad under the Agreement will be as per the template contract at Schedule A". Schedule A is a document entitled Local Delivery Subcontractor Agreement that purports to set out terms and conditions between the Respondent and 37 identified corporate subcontractors (who have not themselves signed the Local Delivery Subcontractor Agreement before me). The Contract Agreement otherwise provides it is to be read "in conjunction" with the Transport Industry - General Carriers Contract Determination 2017 (the GCCD), as varied from time to time, with the GCCD to prevail in the event of inconsistency and where the GCCD provides "a greater benefit to the contract carrier" (cl 4(ii) of the Contract Agreement).
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 Applicant is an association of contract carriers. The Respondent is a principal contractor. The Contract Agreement identifies it is to cover contract carriers engaged by the Respondent**,** "who fall within the coverage of the Transport Industry - General Carriers Contract Determination 2017" (see cl 3(i) of the Contract Agreement). The application and the terms of the Local Delivery Subcontractor Agreement at Schedule A to the Contract Agreement itself, otherwise make clear that the class of contracts of carriage to which it is to apply are contracts to provide "metro road transport services". The parties have helpfully confirmed today that "metro road transport services" are road transport services within the metropolitan area of Sydney. Both parties confirm it is not intended that this contract agreement would cover long haul work of the kind otherwise described in the Transport Industry - Mutual Responsibility for Road Safety (State) Determination.
Whilst its form is somewhat unusual, I am satisfied that the Contract Agreement (when read with the terms and conditions set out in the Local Delivery Subcontractor Agreement at Schedule A), 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 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]
(1) The Commission is to approve each contract agreement lodged for approval, but only if the Commission is satisfied that -
[4]
(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.
[5]
(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 -
[6]
(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.
[7]
(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.
[8]
The parties have relied upon, and I have had regard to:
[9]
(a) An amended form of the Contract Agreement from that filed with the original application. The amended form of the Contract Agreement was marked Ex 1, and it is Ex 1 the Applicant seeks to have approved. I note Ex 1 is signed by a representative of each of the Applicant and Respondent.
(b) Submissions filed on behalf of the Applicant, dated 22 May 2025 (the ASUB). I note the respondent has raised no objection to these submissions filed on behalf of the applicant and has put on no reply.
(c) An affidavit of Mark John Smallwood (affirmed 21 May 2025), an official employed by the Applicant since 2017, who was involved in the negotiation of the AirRoad Agreement. In particular, I have had regard to the helpful schedule MS1 to his affidavit, setting out a comparison of the terms of the AirRoad Agreement to the terms of the GCCD (with the exception of rates).
(d) An affidavit of Sophia Marie Nasser, Chief Legal Officer of the Applicant, dated 20 March 2025.
(e) An affidavit of Kayleen Jane Wilkinson (affirmed 21 May 2025), a General Manager employed by the Respondent (employed by the Respondent since 2014), who represented the Respondent in the negotiations for the proposed AirRoad Agreement. In particular, I have had regard to the helpful Table at Annexure KW1, that compares the rates under the Contract Agreement to those provided by the GCCD. I note they are fairly characterised as significantly greater than those provided by the GCCD (I note Mr Smallwood describes them as "well above the rates in the GCCD" at [14]).
[10]
Mr Smallwood describes having held a yard meeting in early August 2024 to ensure he had an understanding of the interests of the various category of carriers to be covered by the Contract Agreement (noting the carriers engaged by the Respondent included those driving vans, pallet rigid trucks of different capacities, and bulk or trailer trucks). He formed a delegate committee to attend negotiations with a representative of the Applicant.
The delegate committee, TWU and Respondent met on some 9 occasions between August 2024 and January 2025. Mr Smallwood broadly describes the negotiation meetings, concluding that nothing in the way the negotiations were undertaken left him or the delegates feeling as though they had been coerced into a position. I note in this connection, after each negotiation meeting Mr Smallwood held yard meetings with the carriers to discuss the progress or outcome of the negotiations and to receive feedback from the wider carrier group.
Ms Wilkinson also briefly described the negotiations, observing the Applicant complied with requests for information and documentation, and conducted the negotiations reasonably.
Each of Mr Smallwood and Ms Wilkinson confirm other than the Applicant (which of course included the delegate committee) and the Respondent, there were no other individuals or industrial organisations involved in the negotiations for the Contract Agreement.
Having regard to the submissions of the Applicant, the oral submissions of the Respondent today, and in particular the affidavits of Ms Wilkinson and Mr Smallwood, I am satisfied:
[11]
(a) 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 6 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.
(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 the GCCD, which I understand to be the only relevant contract determination that would otherwise apply to the drivers or carriers but for the Contract Agreement. Both parties confirmed for me on record that it was not their intention that the Contract Agreement would interfere with the operation of the Transport Industry - Redundancy (State) Contract Determination.
(c) the parties understand the effect of the agreement, and
(d) the parties did not enter the agreement under duress.
[12]
Each of Mr Smallwood (at [8] - [9]) and Ms Wilkinson (at [7]), describe the Contract Agreement covering all carriers engaged by the Respondent, and as such s 325(2) does not arise.
Pursuant to s 325 of the IR Act, the AirRoad and TWU Contract Agreement 2025 is approved. I note the nominal term of the agreement is for a period of two years from today, being the date of approval.