Owens Transport Pty Ltd – TWU New South Wales Contract Carriers Agreement 2020 [2020] NSWIRComm 1059

Industrial Relations Commission New South Wales Medium Neutral Citation: Owens Transport Pty Ltd – TWU New South Wales Contract Carriers Agreement 2020 [2020] NSWIRComm 1059 Hearing dates: 11 September 2020 Date of orders: 11 September 2020 Decision date: 11 September 2020 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: The Owens Transport Pty Ltd – TWU New South Wales Contract Carriers Agreement 2020 is approved Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Awards and agreements – application for approval of contract agreement – agreement approved Legislation Cited: Anti-Discrimination Act 1977 (NSW) Industrial Relations Act 1996 (NSW) ss 3, 33, 163, 164A, 322, 324, 325 Cases Cited: Review of the Principles for Approval of Enterprise Agreements 2018 [2018] NSWIRComm 1064 Category: Principal judgment Parties: Transport Workers' Union of New South Wales (Applicant)

Owens Transport Pty Limited (Respondent) Representation: R Rasmussen (Applicant)

M Reid (Respondent) File Number(s): 2020/255705 Publication restriction: I order that there be no publication of Annexure A of the Owens Transport Pty Ltd – TWU New South Wales Contract Carriers Agreement 2020 on the website of the Industrial Relations Commission of New South Wales

EX TEMPORE Judgment 1. This is an application pursuant to s 324 of the Industrial Relations Act 1996 (NSW) ("Act") by the Transport Workers' Union of New South Wales ("TWU") seeking approval of a contract agreement made under s 322 of the Act between Owens Transport Pty Limited ("Company"), the TWU and certain contract carriers engaged by the Company. 2. The application came before me this morning. Robert Rasmussen, an Official of the TWU, appeared for that union, accompanied by Mr McIntyre. Mike Reid, the National Manager of the Company, appeared for that party, accompanied by Richard Vlasblom. 3. The application attached a copy of the proposed contract agreement ("Agreement"). It appears to have been executed on 2 September 2020 by Mr Reid on behalf of the Company and Richard Olsen on behalf of the TWU. On reading the application and the Agreement I had observed that while the application sought approval of a contract agreement entitled "Owens Transport Pty Limited – TWU New South Wales Contract Carriers Agreement" there was nothing on the face of the Agreement that gave it that title. Indeed, on a strict interpretation the Agreement might be said to go by the cumbersome title of: "Agreement entered into pursuant to clause 18 of the Transport Workers – General Carriers Contract Determination between Owens Transport Pty Ltd (acn 060 592 529) (The Company). A company duly registered as having its registered office at 2 Coal Pier Road, Banksmeadow NSW 2019 in the state of New South Wales and the Transport Workers Union of New South Wales of 22 John Hines Avenue, Minchinbury (The Union) and the various Contract Carriers engaged by the Company by their elected representatives whose names and signatures appear hereunder (The Contract Carriers)." (Sic) 1. I arranged to have this brought to the attention of the parties, in an email sent on 4 September 2020. On 10 September 2020 I received from the TWU a document attaching a cover page to be appended to the Agreement, bearing the name "Owens Transport Pty Ltd – TWU New South Wales Contract Carriers Agreement 2020". Today the parties confirmed that it was their intention that the Agreement be referred to by that title. 2. Strictly speaking, there may be questions as to whether it is possible to amend a contract agreement after it has been endorsed by the contract carriers to which it applies and executed by the parties. This would apply to attaching a cover sheet. That said, it would seem to be contrary to common sense and to the requirements of the Act (noting ss 3(g) and 163(1) in particular) to require the parties to amend the Agreement and to conduct again the endorsement and execution process simply to address what appears to be an oversight. 3. I am prepared to accept that the Agreement should be known as the "Owens Transport Pty Ltd – TWU New South Wales Contract Carriers Agreement 2020". While the cover sheet may not strictly form part of the Agreement there is no reason why it could not "travel with" the document for ease of reference. 4. On its terms the Agreement will apply to all contract carriers "engaged by the Company to perform work at or from the Company's container transport division operations currently located at Banksmeadow" ("Carriers"): cl 2(b). 5. The application is supported by the necessary Statement of Particulars. 6. In support of the application the TWU read an affidavit of Richard Olsen sworn on 2 September 2020. In his affidavit Mr Olsen deposed as follows: 1. he is the State Secretary of the TWU; 2. the contract determination over which the Agreement will prevail is the Transport Industry – General Carriers Contract Determination ("Contract Determination"); 3. the Agreement will rescind the Owens Transport Pty Limited – TWU New South Wales – Chipping Norton Contract Carriers Agreement; 4. the terms and conditions of the Agreement are in addition to the conditions of engagement under the Contract Determination. The rates provided under the Agreement are higher than the Contract Determination; 5. the Agreement does not provide a net detriment, on balance, to the Carriers; 6. the process of negotiation involved several months of discussions between the TWU, the Carriers and the management of the Company; 7. the Agreement was discussed with and endorsed by the Carriers prior to it being signed by the parties; 8. the Agreement meets all relevant statutory requirements, including the requirements of the Anti-Discrimination Act 1977 (NSW) as the Agreement "does not discriminate on the grounds of race, sex, pregnancy, marital status, status as a carer, disability, homosexuality, transgender, responsibility as a carer, compulsory retirement, age, HIV/AIDS vilification, homosexual vilification, transgender vilification and racial vilification"; 9. the parties did not enter into the Agreement under duress and signed of their own will, and understand the effect of the Agreement; and 10. the Agreement complies with the principles set by the Commission under s 33 of the Act. 1. Today Mr Reid confirmed the Company's consent to the approval of the Agreement in accordance with the application. 2. I am satisfied on the material presented to the Commission that the Agreement submitted for approval complies with all necessary statutory tests and the principles set by the Commission pursuant to s 33 of the Act, in Review of the Principles for Approval of Enterprise Agreements 2018 [2018] NSWIRComm 1064. 3. This morning Mr Rasmussen, with the consent of Mr Reid, made a request that Annexure A to the Agreement, which sets out the rates payable by the Company to the Carriers, not be published. I am aware that making such an order is consistent with the practice adopted in other contract agreements that have been approved by the Commission. I will make the order sought pursuant to s 164A of the Act. 4. The Agreement is approved pursuant to s 325 of the Act. In accordance with its terms it will operate until 11 September 2021. 5. The Agreement rescinds and replaces the Owens Transport Pty Limited – TWU New South Wales – Chipping Norton Contract Carriers Agreement. 6. I order that there be no publication of Annexure A of the Agreement on the website of the Industrial Relations Commission of New South Wales. Damian Sloan Commissioner