Industrial Relations Commission New South Wales Medium Neutral Citation: BORAL RESOURCES (NSW) PTY LIMITED – APPLICATION FOR STAND DOWN ORDERS [2021] NSWIRComm 1061 Hearing dates: 6 August 2021 Date of orders: 6 August 2021 Decision date: 06 August 2021 Jurisdiction: Industrial Relations Commission Before: Commissioner Murphy Decision: Stand down orders made Catchwords: Stand Down Orders - Suspension of Payment of Remuneration to Contract Carriers Legislation Cited: Industrial Relations Act 1996 Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Boral Resources NSW Pty Limited (Applicant) Transport Workers Union of NSW (Respondent) Representation: Mr L Izzo, Australian Business Lawyers (Applicant) Mr A Grumley and Mr R Rasmussen, Transport Workers Union of NSW (Respondent) File Number(s): 2021/00221359 Publication restriction: Nil EX TEMPORE decision 1. Before the Commission is an application by Boral Resources NSW Pty Limited (Boral) for a stand down order pursuant s 126 of the Industrial Relations Act 1996. Pursuant to s 343 of that Act, s 126 is an applied provision for the purpose of proceedings involving principal carriers and contract carriers. Section 126 is in the following terms: 126 Stand-down orders—suspension of payment of remuneration (1) The Commission may, on the application of an employer or an industrial organisation of employers, order the stand down of employees of that employer or of members of that organisation if there is no useful work for the employees because of— (a) industrial action, or (b) breakdown of machinery, or (c) any other act or omission, for which the employer or employers concerned are not responsible. (2) The Commission is to give high priority to the hearing and determination of any such application. (3) An employee who is stood down by the Commission is not entitled to any remuneration (including allowances) while stood down. However, this subsection does not apply to any allowance that the Commission considers should be paid despite the stand-down order. (4) The period during which an employee is stood down is to be regarded as a period of employment with the employer for all other purposes, including the accrual of leave and the calculation of superannuation and other entitlements. (5) A stand-down order does not apply to an employee who is an apprentice or trainee (other than an existing worker trainee) within the meaning of the Apprenticeship and Traineeship Act 2001. 1. The respondent to this application, the Transport Workers Union of NSW, has raised a jurisdictional objection to the Commission making an order in the terms sought by the applicant. Based on the authorities relied upon by Mr Louis Izzo, representing the applicant, and the submissions that he made in respect of this jurisdictional issue, which I accept, I reject the jurisdictional objection of the Union. 2. I then turn to the discretionary factors. The stand down order sought by the applicant relates to contract carriers that ordinarily operate out of the following plants, operated by Boral: 1. Blacktown 2. Granville 3. Minto 4. Prestons 5. Smithfield 1. Each of these concrete batching plants is located in a Local Government Area which is the subject of Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order 2021. Shortly stated, the effect of that order, as it relates to these proceedings, is that no construction work can occur within the designated Local Government Areas within which each of the nominated plants is located for the period 31 July through to 27 August 2021. However, the period for which the order is sought is from 7 August through to 27 August 2021. I note that the application by Boral does not seek any stand down order in relation to the past week, being the period 31 July through to 6 August 2021. However, I also note that the contract carriers which will be affected by the order I propose to make, have been available to perform work, as required by Boral, for that period. 2. I should note that different considerations arise in relation to a matter such as this involving contract carriers, as opposed to employed drivers, a number of which, I also understand, have been, or will be, stood down as a result of the Public Health Order. 3. When contract carriers are stood down, not only are they deprived of the opportunity of earning income, through the performance of work, they are also obligated to meet the ongoing expenses of maintaining their business, in particular, of maintaining their trucks, with costs such as insurance, depreciation and the like, which impact upon contract carriers whether or not they are performing work at any particular time. So to that extent, the situation facing the people, subject of this application, is somewhat different to that which would be faced by employed drivers performing the same or similar work and that is a matter which I have taken into account. 4. As I noted, the order sought relates to the period 7 August through to 27 August 2021. That is a period of 21 days, or 18 working days which would normally be worked by the contract carriers that operate out of the five nominated plants. 5. As part of the proposal for the making of the stand down orders sought, Boral has amended its original proposal to provide in Order 2(a) that during the period of the stand down order, the affected contract carriers will be either provided with work on six days out of the 18 affected by the proposed order, or will otherwise be paid their monthly retainer for those days. I understand that the consideration behind this proposal from Boral is, to some extent at least, to ameliorate the impact of the proposed stand down order on the affected contract carriers and Boral is to be commended for taking that consideration into account. 6. However, given that, for the other 12 days of the period of the proposed order, if made according to the application before the Commission, the contract carriers affected will not be in receipt of any income as a result of work performed, because there will be none, and will not be in receipt of the monthly retainer for those 12 days. There is a provision in the orders sought, for the carriers to apply for government grants and the like and an undertaking by Boral, in cases where such applications, for technical reasons or otherwise, are not successful, to consider payment of the monthly retainer and again, Boral is to be commended for continuing that provision, which was originally inserted in a previous order made by consent of the parties, to cover an earlier period of time. 7. However, I am concerned with the financial impact that the proposed stand down order will inevitably have on the affected contract carriers and I believe that considerations of industrial fairness require that this impact or burden be shared fairly, as between the parties. 8. I accept, based on the evidence of Mr MacDonald, that for the period of the stand down order sought, apart from the six days that I have already mentioned, there will be no work, or useful work, able to be provided to the affected contract carriers and I accept that the current restrictions on construction work that have arisen, as a result of the current and previous Public Health Orders, have severely impacted upon the profitability of Boral. 9. Nevertheless, I have formed the view, having listened to the evidence of the witnesses for both parties and their respective submissions and having taken those into consideration, in the exercise of the Commission's discretion in a matter such as this, that a fairer sharing of the burden would be to amend the reference to six days in Proposed Order 2(a) to nine days. The effect of that would be that for the period of 18 working days covered by the proposed order, on nine of those days, the contract carriers would effectively be stood down without income from Boral, but for the other nine, would at least be paid the amount of their monthly retainer and possibly, some additional income by way of work performed if such work can be provided. I believe that outcome is a fair and reasonable outcome for both parties. 10. So I make an order in terms of Schedule B to the application originally filed, as amended, by way of email sent to the Commission on Thursday 5 August 2021 and received at 9.38pm, which had attached to it, a document headed "File Number 21.221359 Schedule B Orders". I make the orders as proposed, with the one amendment, that the reference to six days in Order 2(a) be deleted and nine days be inserted in lieu thereof. I direct the legal representatives of the applicant Boral, to prepare a document setting out the orders that I have just made and file and serve that with the Commission forthwith (orders issued separately by the Industrial Registrar. John Murphy Commissioner ********** 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: 10 August 2021