Transport Workers' Union of New South Wales v Transport Fleet Services

Industrial Relations Commission (NSW)|2024-05-07

DECISION

This decision addresses an application made by the applicant union for a contract determination under s 313 of the Industrial Relations Act 1996 (NSW) (the "Act"), filed on 18 October 2023.
The application arises from a decision by the respondent to amend the rates paid to some of its contract drivers, including those who were members of the applicant union. These new rates came into effect on 10 July 2023 and resulted in a number of drivers having their rates reduced.

Factual Background

The respondent is a transport company that carried freight for various customers and, up until December 2023, one of its' customers was Sigma Pharmaceuticals Pty Ltd ("Sigma").
Sigma is a major national wholesaler and distributor of medications and other pharmaceutical products to community pharmacies and chemists.
As part of contractual arrangements between the respondent and Sigma, the respondent provided transportation and delivery of Sigma's pharmaceutical products around Australia using contract carriers or drivers engaged in each state and territory.

Procedural Background

The initial application sought the making of a contract determination in the following terms: Under Section 313 of the Industrial Relations Act I996 (NSW), the Industrial Relations Commission of New South Wales makes a Contract Determination in the following terms: 1. This Contract Determination will operate with respect to contracts of carriage between Transport Fleet Services (NSW) Pty Ltd t/a Kings (Kings) and its contract carriers performing work for Sigma Pharmaceuticals' (2 lmperata Close Kemps Creek NSW 2178) (Contract Carriers). 2. In return for work performed by the Contract Carriers for Sigma Pharmaceuticals, Kings must: a. allocate the Contract Carriers the same run or route they were required to perform before 7 July 2023; b. pay the Contract Carriers the relevant rate which it applied to each run or route required to be performed by the Contract Carriers before 7 July 2023 (Trip Rate); and c. ensure that where a different or new Contract Carrier is allocated a run/route performed by an existing Contract Carrier, that the relevant Trip Rate is paid to new Contract Carrier. 3. Any variation to the runs determined by clause 2(a) above will be subject to a consultation process between Kings, the Transport Workers' Union ofNSW and the Contract Carriers, and Kings obtaining the consent of the affected carrier 4. The Contract Carriers will receive an additional 6% of their gross weekly earnings (inclusive of GST) as a fuel component (the Fuel Levy Amount). 5. The relevant Trip Rates will vary in line with the percentage variation for the applicable classification contained in the Transport Industry - General Carriers Contract Determination 2020 (GCCD) as such variations occur. 6. The Flat Rate and the Fuel Levy Amount will be paid to the Contract Carrier on a weekly basis. 7. Except where this Contract Determination provides a greater benefit, the GCCD will continue to apply to the Contract Carriers, including for any additional work performed outside of the applicable run/routes. 8. This Contract Determination will operate from 25 July 2023 for a period of 3 years.
The application was the subject of a conference pursuant to s 315 of the Act before the Commission as currently constituted on 26 October 2023. At the conclusion of the conference, the application was listed for hearing on 6 and 7 December 2023, and orders were made for the filing of material. A further conference was listed for 6 November 2023.
The conference on 6 November 2023 did not resolve the matter, and the directions made on 26 October 2023 were vacated.
On 13 November 2023, the matter was set down for hearing on 19 and 20 March 2024 and orders were made for the parties to file evidence and submissions.
On 4 December 2023, the hearing dates for of 19 and 20 March 2024 were vacated and the hearing was set down for 2 days commencing 7 May 2024.
On 7 January 2024, the dates for the filing of serving of the parties' materials was varied to the following: 1. The Applicant is to file and serve evidence and written submissions by 4.00pm on 10 January 2024 has been extended to 7 February 2024. 2. The Respondent is to file and serve evidence and written submissions by 4.00pm on 21 February 2024 has been extended to 27 March 2024. 3. The Applicant is to file and serve any evidence and submissions in reply by 4.00pm on 6 March 2024 has been extended to 13 April 2024.
The above orders were varied again on 14 February 2024 to the following: 1. The Applicant is to file and serve evidence and written submissions by 4.00pm on 21 February 2024. 2. The Respondent is to file and serve evidence and written submissions by 4.00pm on 10 April 2024. 3. The Applicant is to file and serve any evidence and submissions in reply by 4.00pm on 17 April 2024.
On 21 February 2024, the applicant filed and served an outline of submissions and witness statements from the following persons: 1. Mark Smallwood, TWU official. 2. Sophia Nasser, TWU legal officer. 3. Ka Chun Chiu, Driver. 4. Rodney Cunningham, Driver. 5. Larry Webber, Driver.
On 8 March 2024, the applicant filed an amended application. The amended application sought the making of the following contract determination for 38 of the Drivers identified in Schedule 1: Under Section 313 of the Industrial Relations Act 1996 (NSW), the Industrial Relations Commission of New South Wales makes a Contract Determination in the following terms: 1. This Contract Determination will operate with respect to contracts of carriage between Transport Fleet Services (NSW) Pty Ltd t/a Kings (Kings) and its contract carriers performing work for Sigma Pharmaceuticals' (2 Imperata Close Kemps Creek NSW 2178) (Contract Carriers). 2. In return for work performed by the Contract Carriers for Sigma Pharmaceuticals, Kings must: a allocate the Contract Carriers the same run or route they were required to perform before 7 July 2023; b. pay the Contract Carriers the relevant minimum hourly rate which it applied to each run or route required to be performed by the Contract Carriers before 7 July 2023 (Trip Minimum Hourly Rate) as contained in Schedule 1; and c. ensure that where a different or new Contract Carrier is allocated a run/route performed by an existing Contract Carrier, that the relevant Trip Minimum Hourly Rate is paid to new Contract Carrier. 3. Any variation to the runs determined by clause 2(a) above will be subject to a consultation process between Kings, the Transport Workers' Union of NSW and the Contract Carriers, and Kings obtaining the consent of the affected carrier. 4. The Contract Carriers will receive an additional 6% of their gross weekly earnings (inclusive of GST) as a fuel component (the Fuel Levy Amount). 5. The relevant Trip Rates will vary in line with the percentage variation for the applicable classification contained in the Transport Industry - General Carriers Contract Defemination 2020 (GCCD) as such variations occur. 6. The Flat Rate and the Fuel Levy Amount will be paid to the Contract Carrier on a weekly basis. 7. Except where this Contract Determination provides a greater benefit, the GCCD will continue to apply to the Contract Carriers, including for any additional work performed outside of the applicable run/routes. 8. This Contract Determination will operate from 25 July 2023 for a period of 3 years until 18 February 2024.
On 26 March 2024, the respondent filed a notice of motion seeking to have the application struck out on the ground that the Commission did not have the jurisdiction to determine the proceedings (the "Motion").
The Motion was listed for directions on 27 March 2024, and the respondent sought to have it listed for hearing as a matter of urgency, prior to the date on which it was required to file its' materials in the matter. This request was rejected and the Motion was listed to be dealt with at the same time as the hearing of the application.
On 26 April 2024, the respondent filed witness statements from the following persons: 1. Brooke Harris, People and Culture Manager of the respondent. 2. Cameron Higgins, Head of Industrial for the respondent.
On 29 April 2024, the respondent filed its' outline of submissions.
An outline of submissions in reply was filed by the applicant on 6 May 2024, along with witness statements in reply from all of their witnesses in chief.
A supplementary witness statement of Brooke Harris was filed on 25 June 2024 by the respondent.
During the first day of the hearing, the applicant filed "in Court" an amended schedule of Drivers to whom it sought the proposed determination to apply. The schedule identified the following twelve Drivers to be paid the minimum hourly rate: 1. Shmshon Al Mekhaeel, $63.85/hour. 2. Ka Chun Chiu, $45.11/hour. 3. Rodney Cunningham, $60.96/hour 4. Ayam El Hallak, $48.77/hour 5. Patez Karan, $42.04/hour. 6. Fadi Lazar, $50.00/hour. 7. Praveen Krishnan Nair, $46.55/hour. 8. Maulikkumar Patel, $43.75/hour. 9. Glen Sheens, $46.38/hour. 10. Gurpreet Singh, $40.50/hour. 11. Kaiser Shemoon, $46.50/hour. 12. Larry Webber, $40.64/hour.
There was a further day of hearing of evidence on 25 June 2024, and at the conclusion directions were made for the filing and serving of final written submissions.
The following further written submissions were filed by the parties: 1. Applicant Written Closing Submissions filed on 5 August 2024. 2. Respondent's Closing Submissions filed on 20 August 2024. 3. TWU Closing Submissions in Reply filed on 20 August 2024.
After receipt of the above written submissions, and confirming with the parties, it was determined that there was no need for further oral submissions.

Respondent

The respondent first relied upon the Motion to assert that the Commission did not have jurisdiction to make the determination sought by the applicant.
In the alternative, the respondent submitted the application should be dismissed as it constitutes an abuse of process and that the Commission should not exercise its discretion to make the determination.
The respondent's submission concerning jurisdiction can be distilled into the proposition that, on a proper interpretation of the Act, the Commission can only make a determination in relation to contracts of carriage in the following circumstances: 1. Under s 313, in relation to contracts of carriage which are currently on foot at the time that the Commission comes to determine the application. 2. Under s 314, to reinstate contracts of carriage that have been "unfairly terminated".
In support of its' construction, the respondent relied on the principles of statutory interpretation from the following passage of the High Court decision in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]: The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole'. In Commissioner for Railways (NSW) v Agalianos [(1955) 92 CLR 390 at 397], Dixon CJ pointed out that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
Further, it was submitted that the exercise involved the context and purpose of the provision and in undertaking this, the respondent pointed to the following passage of Allsop CJ in Construction, Forestry, Maritime, Mining, and Energy Union v Australian Building and Construction Commissioner [2022] FCAFC 192; (2020) 282 FCR 1 at [4]-[5]: The principle is clear: Meaning is to be ascribed to the text of the statute, read in its context. The context, general purpose and policy of the provision and its consistency and fairness are surer guides to meaning than the logic of the construction of the provision. The purpose and policy of the provisions are to be deduced and understood from the text and structure of the Act and legitimate and relevant considerations of context, including secondary material. … There can be no doubt that the search for principle in the High Court reveals a settled approach of some clarity: R v A2 (2019) 277 A Crim R 539; 373 ALR 214 at [31]-[37]. The notion that context and legitimate secondary material such as a second reading speech or an Explanatory Memorandum cannot be looked at until some ambiguity is drawn out of the text itself cannot withstand the weight and clarity of High Court authority since 1985 …
In applying these principles, the respondent submitted that the text of section 313 requires an existing contract of carriage at the time a determination is made. To further support this contention, the respondent relied on Justice Backman's decision in Transport Workers' Union of New South Wales v DP World [2013] NSWIRComm 58, where she examined the jurisdiction concerning section 332 of the Act, particularly highlighting the following passage: An examination of the of the various provisions contained within Chapter 6 suggests that it is limited to the regulation of persons who are in, or who have the capacity to enter into, contractual relationships, either under contracts of carriage or contracts or bailment. By way of example, s 311 defines those persons who may make application to the Commission for the exercise of, "a function of the Commission under this Part". Section 311 falls within Part 2 of Chapter 6 headed "Contract Determination". The only persons who make an application under this provision are persons in contractual relationships (either under a contract of bailment or a contract of carriage) or associations representing those persons. DPW does not fall into any of those categories. Nor does it fall within those classes or categories of persons who may enter into contract agreements under Part 3 of Chapter 6. In short. DPW is not an entity in relation to which any of those provisions under Chapter 6 apply. It is not a party to any contract of carriage; it is not within the categories of persons who may make an application under s 311. it is not a party able to be bound by a contract determination or a contract agreement, it could not seek registration as an association of employing contractors in which it could have compensation ordered against it by the Contract of Carriage Tribunal in relation to a contract of carriage. Given that these provisions are confined in scope to contracts of bailment and contracts of carriage, there is no reason to suggest that the dispute resolution procedures in s 332 would extend beyond those persons or entities who are, or have the capacity to be, parties to the classes of contracts falling within Chapter 6. The plain words of s 332 do not suggest otherwise.
Additionally, in support of its jurisdictional objection, the respondent argued that the precursor to s 314 of the Act was specifically inserted to grant the Commission jurisdiction it previously lacked. This is detailed in the following submission: Consequently, the jurisdictional facts, which must be established to enliven, either provision is different. With respect to s. 314, the jurisdictional fact, which must be established is that the termination of the contract of carriage was one at the initiative of the principal contractor. Significantly different, is that the jurisdictional fact that must be established for the commission to exercise its powers under s. 313 is that the is, on foot, a contract of carriage. If this were not the case, the historical amendment to the predecessor provision to section 314 would not have been required and further the phrase 'reinstatement,' in s. 314, would have no work to do and would simply be redundant. Further, in any event, a contract of carriage could not exist if there did not exist a principal contractor. As is noted above, the Respondent divested its business on December 2023 the consequence of which was that each carrier's contract of carriage was terminated and, by virtue of the fact that the Respondent no longer engages ANY carriers it is no longer a principal contractor for the purposes of Chapter 6 of the IR Act (see s. 310).
Regarding the abuse of process submission, the respondent argued that this application constitutes conduct designed to effectively usurp the statutory provisions of the Act and that the settlement of the Dispute Application indicated that the applicant was attempting to address in this application the same two matters that they had resolved in the Dispute Application. Secondly, that this application constituted a claim for enforceable back pay, which would have a retrospective effect.
The respondent submitted that even if the Commission has the jurisdiction to make the determination, it should refrain from doing so, as the determination does not constitute "fair and reasonable" rates and conditions for several asserted reasons.
Firstly, the respondent argued that the rates in the General Carriers Contract Determination 2017 (the "GCCD") represent fair and reasonable rates, and that the Drivers are paid at a rate equal to or higher than the GCCD. Accepting the rates sought in the application as fair and reasonable would imply that the rates in the GCCD are not.
Secondly, it was contended that if the Commission were to make the sought determination, it would be condoning an inequitable windfall for the 12 Drivers.
In the alternative, the respondent submitted that even if the Commission is seized of jurisdiction, it should not exercise its discretion to make the determination sought by the applicant.
The respondent submitted that Commissioner Newell had dealt with the same manner of application in Transport Workers' Union of New South Wales v. Paperlinx Australia Pty Ltd [2013] NSWIRComm 1032 and rejected it. The respondent particularly relied on the following reasons provided by the Commissioner: [40] To return to the effect of the provisions of the general determination on the application that has been made here, to say that increases in the general determination have occurred in the last three years, which is of course factually entirely correct and that they should be equitably flowed on, does not take the applicant home. I cannot accept that proposition in circumstances where inferentially it is the case that before the past three years' increases in the general determination, the rates paid to the contractors which have not increased in that time, were more substantially in excess of the general determination terms than they now are. [41] That would mean that there has been, as was submitted by Mr Warnes, some erosion of take home pay. That happens in times of economic difficulty. It is a matter of regret that it happens but it happens. Ultimately there are mechanisms which allow that to be redressed, although to the contractors looking down the back end of three years of no increase, I understand that those mechanisms may appear to be a long way away and to give little comfort. [42] But it is no part of the jurisprudence of this Commission that differences - in effect a cushion - between the rates in the general determination and what is being paid must be maintained. Indeed, arguments of that kind have been rejected substantially in State wage cases and in award claims before the Commission and I do not propose to step outside the jurisprudence of the Commission in that regard.
The second discretionary reason advanced by the respondent is set out in the following passage from the final written submissions: The second discretionary issue is that now, the Application is only relevant to 12 carriers out of the 66 carriers. It would be, with respect, an absurd outcome if the Commission were to exercise its discretion (which discretion is not conceded for the reasons outlined above) in order to make a contract determination for 12 aggrieved carries in circumstances where there already exists a determination, the GCCD, made by this Commission which determination contains terms and conditions of engagement which are fair and reasonable.
The respondent also argued that the Commission would not make the determination as it constituted a back pay claim and that the applicant had not brought sufficient evidence to support a finding that the determination would be fair and reasonable.

Applicant submissions

Unsurprisingly, the applicant submitted that the Motion should be dismissed, arguing that there is no prohibition on the Commission exercising its jurisdiction to make a determination that will set fair and reasonable rates of remuneration.
The applicant submitted that the Commission would not accept the respondent's interpretation of section 313, considering both the text of the section and its context.
The applicant in relation to the jurisdictional argument put that to accept the respondent's construction would result in a number of arbitrary, unreasonable and absurd practical consequences, which they stated were: a. in the event that there was a scenario where, at the time an application was made there were 50 contract carriers engaged by the principal contractor who were parties to contracts of carriage but, by time the application was determined, a single contract carrier remained engaged with the balance having been terminated, Kings' argument would entail that a contract determination setting reasonable terms and conditions of engagement on and from the date application was made (see s 318(3)) would only be capable of being made in relation to single contract carrier who remained engaged; b. if this matter were listed for hearing on 12-13 February 2024, the Commission would on Kings' argument have had jurisdiction. If the matter had been set down for 19 February 2024, it would not have had jurisdiction. Further, if the matter had been heard on 12-13 February, the Commission would have lost jurisdiction to make a contract determination if it did not deliver its decision and make a determination by 18 February 2024. If handed down decision at 9:30AM on 19 February 2024, that would have been an act of futility as its jurisdiction would, on Kings' construction, literally have evaporated overnight; c. principal contractors and bailors would be enticed to terminate contracts of carriage and bailment to avoid having to pay rates of remuneration under contract determinations not yet made by the Commission when an application under s 311 is made; and d. whether the Commission had jurisdiction would depend on the time an application was ultimately heard and thus would depend on accidents of timing.
As to abuse of process, the applicant referred to the High Court judgement of UBS AG v Tyne (2018) 265 CLR 77, where Kiefel CJ, Bell and Keane JJ observed that the following conditions provide a basis upon which a court stay proceedings constituting an abuse of process: 1. the use of the court's procedures occasions unjustifiable oppression to a party. 2. Where the use serves to bring the administration of justice into disrepute.
The applicant went on to submit that the respondent had not identified how it is that either of the above two conditions had been satisfied.
The applicant contended that the rates within the proposed determination are fair and reasonable and that it is in the public interest for it to be made. The following passage from the "Closing Submissions for The Transport Workers' Union Of New South Wales" succinctly states the applicant's contention in support of its' application: The TWU contends that the rates paid to carriers prior to 10 July 2023 were fair and reasonable. They were rates that the carriers had structured their lives and businesses around. Kings knew and was aware of this. The importance of ensuring that any altered runs would not result in financial detriment to carriers was acutely appreciated by Kings. Kings explicitly represented to the carriers that the change in runs would not cause them financial detriment or disadvantage. This was, as Mr Higgins explained, Kings' purpose and object. It did not give effect to that purpose or object with respect to the carriers the subject of this application. Rather, it unilaterally imposed changes on them (in breach of their contracts) and without properly consulting them. It is in the public interest and congruent with fairness and reasonableness that a determination reflecting the rates payable to carriers pre the changes implemented from 10 July 2023 be made.
In response to the respondent's contention regarding the GCCD, the applicant argued that fairness and reasonableness are not determined solely by the existence of a minimum rates determination that sets a floor for terms and conditions of engagement.
As to the respondent's submission concerning the application of Paperlinx, the applicant submitted that it was not relevant to the current application for the following reasons: 1. In Paperlinx, the application in that case was for an increase in rates, which is to be contrasted with the present for the re-institution of rates and fuel levy previously paid to the 12 Drivers; 2. In Paperlinx, the contract carriers had consented to the rates to be paid, whereas the 12 Drivers did not consent to the changes to their rates; and 3. In Paperlinx, the respondent provided evidence concerning financial ill health, which was not the case in this application.
Additionally, the applicant submitted that the respondents' contention regarding the determination only covering 12 drivers is not a proper basis for finding that it does not set fair and reasonable rates and conditions, given the Act permits a determination under s 313 to cover parts of a business and/or individual contract carriers.

Jurisdiction

Firstly, s 311 and s 313 of the Act, when read in combination, provide that the Commission has jurisdiction to make a determination if there is a contract of carriage in existence at the time the application is made and the application is made by a party to the contract or an association acting on their behalf. There is nothing within the text or context of these provisions that imposes a temporal restriction requiring the contract of carriage to remain in effect at the time the Commission makes a contract determination.
Furthermore, the respondent's contention overlooks the ability of the Commission under s 318 to make a contract determination that may apply retrospectively.
Turning to the case of DP World, this case does not assist the respondent as it deals with an application by the TWU pursuant to s 332 of the Act, which sought orders against DP World, a company that did not and had never engaged any contract carriers.
The respondent's jurisdictional contention, if accepted, would allow any party to a s 313 application to remove the Commission's jurisdiction to make a determination simply by terminating the contract of carriage. This interpretation is disconnected from the entirety of the statutory text, as well as the context and purpose of the relevant provisions of the Act.
Justice Backman in DP World found that there was no valid application under s 311 of the Act because DP World was not a party to a contract of carriage, a contract of bailment, nor an association representing parties in those categories of contracts. This contrasts with the current application, in which both the applicant and the respondent fell within these categories at the time the application was made.
Regarding the contentions about the introduction of the precursor to s 314, the submissions are based purely on speculation and fail to identify any authority or secondary material, such as a second reading speech or Explanatory Memorandum. Therefore, this submission is rejected.
For the reasons set above, I find that the Commission does have jurisdiction to consider exercising its' discretion to make the determination sought and accordingly the Motion is dismissed.

Abuse of Process

Neither basis asserted by the respondent stands scrutiny. Firstly, the settlement of the Dispute Application only resolved the applicant's application for an interim determination, which given the operation of ss 33(6) can only operate for one month.
Secondly, the determination brought by this application is permitted by ss 318(3) of the Act and accordingly this application does not seek to usurp the statutory scheme of the Act.

Fair and Reasonable

The accepted approach in considering whether the Commission should make a determination pursuant to s 315 of the Act is set out in following passage from the decision of Senior Commissioner Kite in Transport Industry General Carriers Contract Determination 2017 [2017] NSWIRComm 1013: 10. I now turn briefly to the legislative framework in which this decision has to be made. The jurisdiction and powers of the Commission with respect to contracts of carriage are set out in s 313 of the Act and the power to make a determination is found at 316 of the Act, the power to vary an existing determination is set out at s 320. It is correct to say that the general functions of the Commission set out in s 146 of the Act which include the setting of remuneration and other conditions of employment, resolving industrial disputes, hearing and determining industrial matters and enquiring into and reporting on any other industrial matter, are also enlivened by an application of the sort made here. 11. In making a determination the Commission must as a consequence of the range of statutory provisions to which I have referred take into account the objects of the Act and the state of the economy of New South Wales, and the effect of its decisions on the economy within the broad spectrum of the public interest consideration which the Commission is bound to observe. As a matter of statute and as a matter of precedent law the Commission has been held to have a wide discretion to vary existing contract determinations. In Haylen J's decision in Transport Industry - General Carriers Contract Determination - application for removal of Special Fuel Price Surcharge [2010] NSWIRComm 166 his Honour observed with approval: "There was no dispute between the parties that there was general and wide discretion provided by s 320 of the Act to vary a determination. It was broadly accepted that in exercising that power to vary a determination the Commission may be guided by similar considerations contained within ss 10 and 17 of the Act." (at [16] 12. That proposition is in my view correct. It is also correct that, like an award, a determination ought set fair and reasonable rates and that, as I have said, the public interest is to be considered in making a variation. True it is that those sections of the Act to which his Honour referred are specifically determined to address awards. However, as the Minister has in my view correctly submitted, and as was recognised by the Commission in the Stage 1 decision, those considerations set out in ss 10 and 17 of the Act appropriately provide guidance to the way in which a contract determination is to be approached, whether the making or the variation of it.
The meaning of "setting fair and reasonable conditions of employment for employees" in s 10 of the Act was explained by the Full Bench (Walton J, President, Commissioners Stanton and Newall) in City of Sydney Wages/Salary Award 2014 (2014) 247 IR 386; [2014] NSWIRComm 49 ("City of Sydney Award") at 390-391 [19]-[22]: [19] The terms 'fair' and 'reasonable' in s 10 of the Act import a requirement that the conditions of employment set represent a proper and proportionate balance between the entitlements afforded employees and the interests of those employing them. [20] Consideration of what is fair and reasonable for an employee will necessarily involve a consideration of what is fair and reasonable having regard to the nature and circumstances of the employment afforded to the employee by an employer. That inquiry cannot be made in a vacuum. It must also extend to the broader context in which the employment occurs and ultimately, by effect of s 146 of the Act, the state of the economy in New South Wales. [21] The assessment required by s 10 will often involve consideration of collective relations between unions and employers or employer associations and, in appropriate cases, consideration of the history of terms and conditions that the parties chose to apply, formally and informally, to employees who will now be covered by the proposed award. [22] In particular cases, the Commission may be required to take into account not only differences between employers or industries in which employment is undertaken, but relevant differences between employees or classes of employees in a workplace, enterprise, project or industry. What may represent a fair and reasonable condition for one set of employees may not be for another, even where the employees are engaged by the same employer. That particular assessment may depend on the history as well as consideration of the present circumstances of the work to be performed.
There must be adequate information before the Commission such that it is satisfied that the determination will provide just and reasonable rates and conditions if made. The adequacy of the material will vary according to the nature of the case, including the degree of consent, before the Commission: Transport Industry - General Carriers Contract Determination [2016] NSWIRComm 3 at [35].
In accordance with the Full Bench's reasoning in City of Sydney, it may be fair and reasonable to offer different rates and conditions for various contract carriers within the same industry, such as those covered by the GCCD. Consequently, the respondent's submissions concerning the operation of the GCCD, in and by themselves, do not imply that the determined rates are unfair or unreasonable.
Additionally, the reasoning in City of Sydney clarifies that it may be fair and reasonable for different rates to be payable to various contract carriers engaged by the same principal contractor. However, this reasoning necessitates some form of distinction between the employees or classes of employees, or in this case, the contract carriers.
The various descriptions provided by each of the witnesses in the proceedings, except for Ms. Nasser who did not give evidence on this topic, indicate that the work and manner in which it is performed by the Drivers is identical. The only differences in terms of the work performed, was the time taken to perform it depending on the length of the run(s).
The sole distinction between some of the Drivers was the rate paid to them for their services, which in the absence of any reasoning is clearly not one which provides an adequate basis to find that they are fair and reasonable.
A significant issue with this application is that the applicant has not provided sufficient information explaining the basis on which the rates sought to be protected within the determination were established. Of the 12 Drivers intended to be covered by the determination, evidence was provided by only three, and none of them offered a meaningful explanation of how the rates they were receiving prior to the change had been determined.
While I accept that there is evidence that three of the 12 Drivers have built their lives and businesses around the rates they had received, this does not provide a sufficient basis to distinguish them from the other Drivers in the sense contemplated in City of Sydney.
Given the above, there is insufficient material before the Commission to conclude that the rates provided in the proposed determination are fair and reasonable. Therefore, the application is dismissed, and I make the following order: 1. The application is dismissed.

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: 20 November 2024

[2010] NSWIRComm 166

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