Transport Workers' Union of New South Wales v Boral Resources

(1) Trucks owned by Boral which are driven by employees of Boral;

(2) Contract Carriers, also called Lorry Owner Drivers (LODs), who own one truck and are, subject to the Boral Resources New South Wales Pty Limited Sydney Metropolitan Contract Carriage Determination, to deliver concrete for a fee set by formulas in the SMCCD; and

(3) Multi-Fleet Operators (MFOs) who own more than one truck and employ drivers. The MFO drivers are presumably employed by the relevant MFOs, not Boral, but this was not in evidence before the Commission.

1. The economics of each arrangement are different. The financial arrangements of each are different. It appears to the Commission that the benefits and disadvantages of each are different to Boral, to the LODs and the MFOs. There was no evidence whether the remuneration of the Boral employed and the MFO drivers is different.
2. It is not necessary for the Commission's current task to elaborate on how each of these is better or worse for each party, but the parties appear to agree that the different arrangements are each better suited in some circumstances than others; such as depending on the scale of a load of concrete for delivery, the nature of any special mix of concrete or the types of road between the dispatch plant and the customer site, simply by way of examples.
3. It is apparent to the Commission that the parties disagree significantly about how the mix of variables, advantages or disadvantages the LODs, MFOs and Boral in different circumstances.
4. The LODs, the relevant cohort before the Commission, each have a contract with Boral that nominates a usual plant for their work, the "nominated plant". That contract also allows Boral to direct an LOD to a different plant, either temporarily for a day, part day, or a few days because of unusual variations in customer demand, or permanently because of presumably sustained changes in customer demand. Boral says the reasons for change are unconstrained.

"3. Nominated Plants & Cartage Zones

3.1 Nominated Plant

An Operator shall normally work from a nominated plant provided that Boral may change an Operator's nominated plant to meet its business needs by giving them 14 days notice of the change having first:

(a) attempted to meet those needs on a voluntary basis; and then

(b) changed the nominated plant of all other Operators (in an Operator's nominated plant and with the same configuration vehicle) who has been at that nominated plant for a shorter period of time.

1. As part of a larger process to change its business, designed to improve the business profitability, Boral has determined that it wants to change its apparently longstanding approach whereby most plants used a mix of employed drivers, LODs and MFOs, to arrangements where at least some plants would have only one type of truck supply, that is, all employees, all LODs or all MFOs.
2. The application seeks to prevent LODs with a nominated plant that is the Granville plant, from being moved or transferred until the LOD agrees, or a substantive application for a contract determination is concluded.

"Boral is restricted from transferring or moving any Carrier engaged under a Contract of Carriage whose "Nominated Plant" is the Granville Plant, to the later of:

a. If the Carrier at the Granville Plant consent to the change, at that time; or

b. If the Carrier at the Granville Plant does not consent to the change, until such a time as the substantive application for a Contract Determination before the Industrial Relations Commission of New South Wales under s 311 has been determined."

1. Section 332 is the only section in Part 4 of Chapter 6 of the IR Act. Unlike some other parts, Part 4 has no provision setting out who may apply for outcomes under that part. Presumably that does not mean it cannot be accessed, but that the Commission could accept an application from any properly interested party.

Part 4 Dispute resolution

332 Compulsory conference with respect to disputes

(1) If subsection (2) or (3) applies or the Commission has reasonable cause to believe that it applies, the Commission may summon a person to a compulsory conference -

(a) to confer, or

(b) to give evidence, or

(c) to produce documents or exhibits,

in an endeavour to bring the interested parties to a settlement which will determine the matter in relation to which the subsection applies.

...

(1C) The Commission must first attempt to settle the industrial dispute by conciliation.

...

(2) This subsection applies if an association registered under this chapter or a bailor or a principal contractor becomes aware of an industrial dispute that relates to a contract of bailment or a contract of carriage, including a contract of bailment or a contract of carriage that has been terminated.

(3) This subsection applies if an industrial dispute arising from the reorganisation of the business of a principal contractor affects, or is likely to affect, the number of carriers used by the principal contractor or their remuneration.

(4) At a compulsory conference, the Commission is to investigate the merits of the matter concerned, irrespective of whether or not industrial action is taking place.

(5) If the Commission considers that all reasonable steps have been taken to resolve the industrial dispute by conciliation, the Commission may do one or both of the following -

(a) make a contract determination expressed to be an interim determination made under this subsection,

(b) make another order or exercise another function the Commission considers appropriate to resolve the dispute.

(6) An interim determination made under subsection (5)(a) -

(a) may be expressed in the terms the Commission considers appropriate, including terms to restore or maintain the conditions existing between the parties immediately before the occurrence of the events giving rise to the industrial dispute, and

(b) remains in force for the period specified by the Commission in the interim determination.

(7) An interim determination or an order the Commission makes under subsection (5)(b) may apply to one or more parties to the industrial dispute, including a person involved in the contractual chain that relates to the dispute.

...

1. Section 332 has been recently amended. The current expression of s 332 is clearly intended to give the Commission power to make a broader scope of orders, and in a broader range of circumstances, and with less constraints than before. The TWU says it is essentially unconstrained. Boral says that is not so.
2. Whilst doing so from different processes of reasoning, the parties agree that the circumstances before the Commission invoke the Commission's power and that the required order is within the scope of the Commission's power to make. Boral says, as a matter of discretion, the Commission should not do so.
3. The TWU initially submitted that s 332 is enlivened by s 332(3). Boral says this is not the case and that s 332 is enlivened by s332(2), but not by s332(3). The TWU in reply says that it accepts that s332(2) enlivens s 332, but it is not necessary to determine which of subsection (2) or (3) is the basis.
4. As a statutory tribunal, the Commission can only exercise power given to the Commission by statute, whether the IR Act or another Act. It is clear there is an industrial dispute, being about the location of work and the right of the principal to determine that location without the agreement of the LODs. Clearly s 332(2) applies.
5. Boral says s 332(3) is not enlivened because:

"2.3 To exercise (or propose to exercise) a right to move vehicles within a concrete network cannot on any proper basis be taken to be the 'reorganisation of the business' of Boral. Section 332(1) is not enlivened by s 332(3), as asserted by the TWU, because the relevant industrial dispute does not arise from 'the reorganisation of the business of a principal contractor'."

1. The Commission does not agree with this characterisation. Mr Jackson, General Manager Concrete Metro NSW for Boral, describes at paras 21-29 of his affidavit changes he has made to Boral's operations, starting with Customer Service, then Operations and Logistics.
2. For Customer Service, he uses words such as "re-engineering" the customer service area. For Operations and Logistics, he described "personnel changes, a reshuffle of the operational organisation" as part of addressing his concerns about that aspect of Boral's business. He then says he turned to address "the required changes to our fleet to improve overall performance".
3. Specifically in relation to fleet, he sought to have some major plants operating only with MFOs and some only LODs. This is a change from long-used practice of mixed fleets at plants. On any assessment, that meets the description of "the reorganisation of the business of a principal contractor".
4. More problematic in the Commission's view is whether that reorganisation is likely to affect either (a) the number of LODs or (b) the remuneration of LODs. The key word here is "likely".
5. There is no evidence before the Commission that would form the basis for the Commission to have even a reasonable cause to believe the changes, as such, will affect the number of LODs Boral will use. It rises to possible, but with a very low degree of probability.
6. As to LOD remuneration, the Commission is satisfied that the change is likely to affect the remuneration. Not because there is any real evidence before the Commission that collectively the LODs will be worse off. The TWU led no such evidence. To the extent there is any evidence, it is very high-level evidence from Boral through Mr Jackson that, on past averages, the LODs' remuneration would likely increase. Mr Jackson conceded that the changes in demand at both Prestons and Granville in the coming months make his past averages not highly probative.
7. The way in which it is likely to affect the LOD remuneration is that so many factors go into LOD remuneration that merely moving plants will likely affect individual LOD remuneration. Whether that is availability, which is largely in the control of LODs; whether it is customer demand, size of loads needed by customers, or waiting time, issues which are largely out of the control of the LODs, these variables are so many and so changeable. That said, those variables affect LOD remuneration, even if they remain at Granville.
8. Very much on balance, the Commission determines that s 332(3) applies.
9. Mr Jackson gave evidence that Boral's concrete business required reorganising in order to be properly productive. As set out above, the third phase of his efforts related to trucks used by Boral to deliver concrete.
10. Unsurprisingly, with three different arrangements, employee, LODs and MFOs, this is a complex task. Not only are the three arrangements financially different, they operate using different sized vehicles. Mr Jackson says he wants to arrange plants so that he has an MFO only plant and an LOD only plant to better understand the different effectiveness of each, including the inherent efficiency, the customer-driven efficiencies and the Boral-driven efficiencies.
11. Mr Jackson rejected the idea that he wanted to eventually have no LODs contracted to Boral. This did not sit comfortably with previous correspondence where Mr Jackson clearly indicated a gradual phasing out of LODs, albeit voluntarily. Mr Jackson said he had a change of view about phasing out LODs since he sent that letter.
12. It was unclear to the Commission how single truck sources at different plants will give the data or analysis Mr Jackson says he wants regarding productivity. The single truck source plants also appear contrary to Mr Jackson's evidence that a mix of cohorts for trucks is useful to Boral's business.
13. That said, neither these seem terribly important, as it is not the Commission's job or task to manage Boral's business or to rule on the most efficient operating model. The furthest the Commission is to go is to set fair and efficient arrangements for contracts of carriage. Setting fair arrangements for the benefit of the LODs is different from running the Boral business productively.
14. Mr Jackson put much store in Boral applying for a new contract determination for its Metro operation. He said he would not have expended the time and money required if he intended to cease the use of LODs. This evidence is rational.
15. Mr Jackson was challenged in cross-examination as to Boral's motives for wanting to make Granville an MFO only plant on the basis that his real motivation was either to ultimately no longer use LODs or that there was another unannounced rationale. He was also cross-examined as to the work at Prestons requiring longer drives to delivery and so being a disadvantage. He responded that LODs were paid on a cubic metre per kilometre rate, so longer distances were paid more.
16. I turn now to Mr Gangi's evidence and in doing so I note that I treat Mr Gangi's evidence as representative of the other ten LODs, particularly on the basis that this was an interim application and listed on a short timetable.
17. Mr Gangi's evidence was:

(1) he is a longstanding LOD of some 28 years contracted to Boral;

(2) that he had worked at other Boral plants, but that he had been at Granville since 2018. The Commission observes this is approximately a quarter of the tenure that he gave evidence of having worked for Boral;

(3) he felt that a 23 October 2025 letter from Mr Jackson signalled the end of LODs at Boral to be replaced by MFOs;

(4) that he felt the proposed move of all LODs from Granville was not properly explained by Boral, so Mr Gangis thought that there was an ulterior motive. It was clear that, to Mr Gangis, this ulterior motive was pushing LODs out;

(5) he expressed a view that the proposed move of LODs and MFOs had not been properly consulted with LODs by Boral;

(6) he disagreed that Prestons had higher volumes than Granville;

(7) he set out that his own work had diminished at Granville by approximately 20% from 2024 to 2025 calendar years;

(8) he set out an example of work that generated surcharges which he said LODs performed that MFOs do not. This was a response to Mr Jackson's evidence that LODs generate more unrecoverable surcharges than MFOs; and

(9) he recited various concerns about the ongoing negotiations about a replacement for the SMCCD.

1. What is not set out in Mr Gangi's evidence, in his three affidavits, is why he should remain at Granville or why he should not go to Prestons.
2. Mr Gangi says that he does not believe Mr Jackson's stated reasons and challenged the volumes at Prestons, but never expressly says why he does not want to move, or why he should not be renominated to Prestons. The Commission observes that the TWU application does not say the LODs should not to go to Prestons. It asks for a prohibition on moving from Granville.
3. During cross-examination, Mr Gangi agreed that Boral had originally planned to renominate Mr Gangi from Granville to Enfield, and that of the eleven LODs Boral now planned to move from Granville to Preston, seven were to be renominated to Enfield, three to Prestons and one to Artarmon. In Mr Gangi's case, the original plan would have moved him to a different plant approximately the same distance from his home as Granville.
4. In response to Boral's original plan, the eleven LODs at Granville collectively determined they would rather go to Prestons if forced to move. Mr Gangi was vague about the reasons he preferred Prestons. Eventually he said it was because he wanted to remain as a collective with the other ten LODs at the same plant. It appeared that Mr Gangi made the decision to go to Prestons because the others had chosen Prestons. Mr Gangi did not suggest he tried to persuade the other LODs collectively, for example, to go to Enfield.
5. Mr Gangi thought that an LOD only plant would be a positive and said that he had no issue in principle with an MFO only plant.
6. Mr Gangi disavowed the decision to nominate Prestons as a last resort as being a financial decision. He acknowledged that the volumes at Granville were dropping.
7. There was some apparently furious disagreement between the parties as to the scope of the Commission's discretion to make orders pursuant to ss 332(5) and (6). Mr Nigel Ward, for Boral, submitted that, at the least, the Commission's discretion was constrained by s 163(1)(c) of the IR Act. Clearly the Commission is constrained by such a fundamental expression of the Commission's powers and procedure.
8. Mr Bailey Ryan, Legal Officer for the TWU, did not challenge this. He did submit that the Commission has broad discretion subject to the issues in dispute between the parties. The Commission saw this as effectively the same submission made by Mr Ward as to the substantial merits of the case set out in s 163(1)(c).
9. The Commission concludes that the orders sought by the TWU are capable of being made in the context of the issues before the Commission. They respond to the issues in dispute. They are directed to pursuing on an interim basis a factual circumstance which is the subject of what Mr Ryan called the substantive contract determination, and that is in matter 25/485920.
10. That not all of the substantive contract determination applied for is relevant to the interim determination is not fatal to the interim application. That some of the final relief sought is contested is also not fatal to the interim contract determination.
11. The fact that the substantive contract determination sought is novel and will be challenged for various reasons that are rational and at least arguable does stand against making the interim contract determination as an exercise of discretion.
12. The likely lengthy period to the final determination of the TWU's substantive contract determination cuts both ways. It cuts against the LODs because Boral will be required to keep operating a system that it does not wish for a long time. It cuts for the LODs because, if they achieve an outcome that they seek in the substantive determination, they will likely have been at a depot that they do not wish to be at for a long time.
13. On balance, it falls against making the interim determination because, as the values set out in Mr Jackson's affidavit show, over the course of a year volumes can change between plants markedly. If the changes Boral wants to make are made, they may well be remade within a year. If Boral is prevented from moving the LODs at Granville, the volumes at Granville may require renominating LODs for basic volume reasons, separate from the analysis and utilisation reasons Boral now advances.
14. As to the preservation of the status quo ante being valuable, this, the Commission accepts, is lost to the LODs if the interim contract determination is not made. But in addition to the foregoing, the Commission is not persuaded that if the TWU succeeds in its substantive contract determination application the status quo ante cannot be restored. This is not the case, as Mr Ward submitted, of termination of a contract of carriage which would patently alter the LODs positions.
15. As much as it would be undesirable to switch and then to switch back to Granville, this does not seem to the Commission to be an irreparable loss.
16. It is abundantly clear that the LODs do not wish to leave Granville. The difficulty with the TWU's case is that there is such a scarcity of evidence about why they should be able to stay at Granville, despite the direction of Boral. The most that Mr Gangi has said is that he wished to stay with his colleagues, although that is not really about a matter that is before the Commission. That was about why the choice of last resort is Prestons.
17. Mr Gangi, to repeat;

(1) disavowed any principled objection to MFO only plants;

(2) positively favoured LOD only plants; and

(3) acknowledged the Granville plant volumes were on the decline.

1. The TWU said that moving from Granville could and, in Mr Gangi's case, would result in a longer drive from home to the Prestons plant as a nominated plant. Mr Gangi did not give evidence this was the reason he did not want to move from Granville.
2. Moreover, the reason Mr Gangi would have a longer drive is because he chose Prestons over Enfield if he had to move. Mr Gangi did not give evidence that he even feared a drop in remuneration, let alone give a basis for such a fear in moving from Granville. The evidence before the Commission suggests a drop from a move to Prestons is unlikely; indeed, with capacity at Prestons being lower with the same volume, there is the prospect of a higher remuneration from such a move.
3. Had the circumstances before the Commission been such that the prospect of a re-nomination had only been known to the LODs since 12 January 2026, the Commission would have been minded to give the interim contract determination in the terms sought for a time limited period, perhaps between two and four weeks.
4. However, the parties have been engaged in discussions for some time. There is apparently the capacity to further those discussions. Boral has, in response to LOD feedback, changed its originally planned re-nomination of the LODs. The process has been going on since at least the 30 October 2025 letter from Mr Jackson. There is still some two weeks until the effective date of the re-nominations. The Commission concludes that ordering more time is not needed for further discussions.
5. The Commission declines to make the interim contract determination sought by the TWU and can see no other appropriate interim contract determination that is appropriate or desirable to make in the circumstances.
6. To further the prospect of alternative renominations that in light of the Commission declining to make the TWU's interim contract determination, the Commission proposes to direct the TWU and Boral are to continue negotiations on alternatives for some or all of the eleven LODs to be renominated to a different plant other than Prestons.

1. The Commission declines to make an interim contract determination as sought by the applicant.
2. The Commission directs that the TWU and Boral are to continue negotiations on alternatives for some or all of the eleven LODs to be re-nominated to a different plant other than Prestons.