Variation of the Transport Industry �e" General Carriers Contract Determination 2017 [2025] NSWIRComm 1043 (4 July 2025)

1. The Determination itself was made as a consent variation by Commissioner Newall on 15 March 2017 (operative from 15 April 2017), following what the Commissioner described an "industrial compromise"[4], reached after extensive conciliation and as the Commissioner described it "perhaps the first really substantive review of the General Carriers Determination since its creation 30 years before"[5].
2. The product of that industrial compromise was broadly summarised by the Commissioner in his decision approving the Determination, but importantly, as the Commissioner noted, included a review of the agreed mechanism for reviewing the rates during the life of the Determination. That updated review mechanism was to be applied to rates which were themselves calculated by the application of what the Commissioner described as "a quite sophisticated cost and rate model" (at [19] - [20]):

"I have made reference to the fact that the submissions before the Commission have advanced that this matter comes before the Commission by consent as an industrial compromise or an industrial agreement between the parties, but it ought not be thought, in my view at least, that this is simply a matter of the parties doing a deal. The parties ... rather than simply haggling out some figures that they could live with, have adopted the approach of developing a quite sophisticated cost and rate model which is now exhibit 5 in these proceedings. I have not seen an exercise of that complexity undertaken by any industry in advancing a new proposal for the structure of rates and conditions at any time whether in this Commission or in my experience in other industrial tribunals.

I accept what has been said to me that this model has been developed with the investment of significant time and resources. Its value it seems to me to lie in this: not only does it provide a proper justification for the rates that are advanced in the present contract determination application, but it provides a platform for dealing with disputes if there any during the life of the determination and further, for dealing with variations to the determination going forward. Based on that model and based on the reports and input that went into developing the model I am satisfied, as I have said, that the new rates do set a fair and reasonable safety net of cartage rates for contract carriers.

"...The parties have decided to take the step of developing, indeed investing in, this model and approaching their differences and resolving them in what is for industrial proceedings a particularly sophisticated way. It is a way which allows the parties to resolve not just this immediate difficulty, but the next round and perhaps the one after that. There is now a model which everyone understands and about which everyone agrees which is based not just on haggling and horse trading, but on proper modelling, proper expert reports, and verifiable evidence. That model allows the parties to see exactly where they stand and to factor in variations in the future."

1. That agreed mechanism for the rates, calculated in accordance with that model, is now contained in Schedule C to the Determination. It is unnecessary to set it out here, but I note cl C.1.2 of Schedule C deals with the date of operation of any variation, and in doing so provides, amongst other things, "... a variation shall not be retrospective in operation but shall operate from a date not earlier than the date upon which it is made". The amended application is, quite appropriately, consistent with the agreed position reflected in cl C.1.2 of the Determination, and otherwise consistent with the IR Act.
2. It has been observed that the power to vary an existing contract determination is general and wide, and that in exercising that power to vary a determination the Commission may be guided by similar considerations to those that inform ss 10 and 17 of the IR Act[6]. That discretion must take into account the general Objects of the IR Act[7] and so ought set fair and reasonable rates[8], be directed to the achievement of the more specific objects of Chapter 6, namely the promotion of fair and efficient arrangements for contracts of carriage and contracts of bailment[9], and take into account the mandatory considerations in ss 146 and 169 of the IR Act.
3. As noted at the outset, this application proceeds by consent. In support of the application, the TWU relies upon the Affidavit of Isabella Wisniewska dated 23 June 2025 (required by Rule 6.8 of the Industrial Relations Commission Rules 2022). Ms Wisniewska observed:

(1) The rates proposed by the application have been calculated in accordance with the mechanism for updating rates contained in Schedule C of the Determination (at [4] - [5]).

(2) The variations provide for equal remuneration and conditions of engagement for men and women, and do not differentiate on the basis of gender. I note, in that connection, the rates and conditions in the Determination (and the proposed variation) are differentiated by reference to the class of vehicle and/or equipment used in performing work, rather than by particular qualifications or years of service or matters of that kind and as such are less likely to reflect underlying gender disparity or undervaluation.

(3) It is in the public interest to facilitate terms and regulation of contrary carries to whom the Determination applies. Adjusting rates pursuant to the method provided by the Determination ensures that contract carriers to whom the Determination applies have appropriate cost recovery and are not involved in a race to the bottom regarding rates and conditions.

1. The affidavit does not directly address the impact of the variation on the state of the economy of New South Wales and the likely effect of my decision on that economy, but I infer from the nature of the variation (being modest variations to existing rates in accordance with an agreed method of calculation, that was itself found to satisfy the relevant statutory tests upon the making of the Determination in 2017), and from the absence of any contrary contention (noting the matter proceeds with the consent of the main Respondent employing entities), that the variation would not have any material adverse impact on the public interest having regard to the impact of the variation on the state of the economy of New South Wales and the likely effect of my decision on that economy.
2. I am satisfied that the rates proposed, being calculated in accordance with the agreed method for updating said rates outlined in Schedule C to the determination, will provide fair and reasonable conditions of employment, and taking into account the matters discussed, it is appropriate to make the variation sought to Schedule A and B of the Determination, in accordance with Schedule B to the amended application marked Ex 1 in these proceedings.
3. I make the following orders:

(1) By consent the Transport Industry - General Carriers Contract Determination 2017 is varied in accordance Schedule B to the Amended Application marked Ex 1 in these proceedings.

(2) The variation will take effect on and from the first full pay period commencing 18 July 2025.

(3) I direct the Applicant to file an electronic copy of Ex 1.

[1] See s 335 of the Industrial Relations Act 1996

[2] See s 315 of the Industrial Relations Act 1996

[3] See s 318 of the Industrial Relations Act 1996

[4] Transport Industry - General Carriers Contract Determination 2017 [2017] NSWIRComm 1013 at [5]

[5] Transport Industry - General Carriers Contract Determination 2017 [2017] NSWIRComm 1013 at [3]

[6] Transport Industry - General Carriers Contract Determination - application for removal of Special Fuel Price Surcharge [2010] NSWIRComm 166 at [16]; Transport Industry - General Carriers Contract Determination 2017 [2017] NSWIRComm 1013 at [11]

[8] Transport Industry - General Carriers Contract Determination 2017 [2017] NSWIRComm 1013 at [12]