Industrial Relations Commission New South Wales Medium Neutral Citation: Application by Hy-Tec Industries Pty Ltd for a Variation to the Hy-Tec Industries Pty Ltd – Maxi Concrete Contract Determination [2021] NSWIRComm 1076 Hearing dates: 5 July 2021 Date of orders: 5 July 2021 Decision date: 30 September 2021 Jurisdiction: Industrial Relations Commission Before: Commissioner Stanton Decision: Determination varied in the terms sought Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Contract determination – Variation – application to vary Hy-Tec Industries Pty Ltd – Maxi Concrete Contract Determination by replacing the existing Clauses 2.1 and 2.2 with new and revised provisions as contained in Schedule B of the Application filed in IRC 21/180627– application not opposed – Determination varied Legislation Cited: Industrial Relations Act 1996 Category: Principal judgment Parties: Hy-Tec Industries Pty Ltd Transport Workers Union of New South Wales Representation: J Arndt, Australian Business Lawyers & Advisers (applicant) R Rasmussen, Transport Workers Union of New South Wales (respondent) File Number(s): 2021/180627 decision 1. This matter concerns an application for the variation of the Hy-Tec Industries Pty Ltd – Maxi Concrete Contract Determination (Contract Determination) filed by Hy-Tec Industries Pty Ltd on 16 June 2021. 2. The application was made pursuant to s 320 of the Industrial Relations Act 1996 (NSW) (the Act) and arises out of a dispute heard by the Commission as presently constituted on 2 February 2021 in Matter No IRC 2020/351978. 3. During proceedings in conference on 2 February 2021, the parties advised the Commission that the dispute had been settled subject to agreement on any proposed variation to the Contract Determination. I am satisfied there has been compliance with s 315 of the Act. 4. The matter was listed for hearing on 5 July 2021. Mr J Arndt appeared for Hy-Tec Industries Pty Ltd. Mr R Rasmussen appeared for the Transport Workers Union of New South Wales (TWU). The TWU supported the application. 5. During the hearing, I delivered an extempore decision and determined that the variations sought should be made. Consistent with the requirements of ss 3 and 146 of the Act, I am satisfied that the Contract Determination be varied as set out below in Schedule B under Annexure A to this decision. Order 1. I order that the Hy-Tec Industries Pty Ltd – Maxi Concrete Contract Determination is varied in accordance with the variations contained in Schedule B under Annexure A with effect on from 5 July 2021. J D Stanton Commissioner Annexure A Schedule B Variations to the Hy-Tec Industries Pty Ltd – Maxi Concrete Contract Determination Delete clauses 2.1 and 2.2 of Schedule 2 and insert in lieu thereof: 2.1 Subject to clause 2.3 of this Schedule, Hy-Tec will: (a) pay to the Contract Carriers the out of hours surcharges set out in the table at clause 2.2 below; (b) continue to pay to the Contract Carriers all other: (i) Rates; (ii) surcharges (except for any out of hours surcharges); and (iii) fees, on the basis they were paid to the Contract Carriers as at the date this Contract Determination was made; and (c) continue to apply the periodic rise and fall formula on the basis it was applied to all Rates, Surcharges and Fees from the date this Contract Determination is varied. 2.2 Table of Out of Hours Surcharges 6 Wheeler Surcharge Application Amount Surcharge 1 Monday to Friday after 5.00am and up to and including 6.00am $9.53 per m3 (min 3.0 m3) Monday to Friday from 5.00pm and before 7.00pm Surcharge 2 Monday to Friday from 7.00pm and up to and including 5.00am $15.24 per m3 (min 3.0 m3) Before 6.00am on a Saturday Surcharge 3 Saturday 1.00pm to 5.00pm $15.24 per m3 (min 3.0 m3) Surcharge 4 Saturday after 5.00pm $22.54 per m3 Surcharge 5 Sunday $22.54 per m3 Surcharge 6 Public Holiday $30.05 per m3 8 Wheeler Surcharge Application Amount Surcharge 1 Monday to Friday after 5.00am and up to and including 6.00am $8.46 per m3 (min 3.6 m3) Monday to Friday from 5.00pm and before 7.00pm Surcharge 2 Monday to Friday from 7.00pm and up to and including 5.00am $13.55 per m3 (min 3.6 m3) Before 6.00am on a Saturday Surcharge 3 Saturday 1.00pm to 5.00pm $13.55 per m3 (min 3.6 m3) Surcharge 4 Saturday after 5.00pm $20.05 per m3 Surcharge 5 Sunday $20.05 per m3 Surcharge 6 Public Holiday $26.74 per m3 2.3 The Rates and/or Surcharges and Fees and/or the rise and fall formula referred to in clauses 2.1 and 2.2 of this Schedule may be changed subject to: (a) agreement between Hy-Tec and the Contract Carrier Executive; or (b) variation of this Contract Determination in accordance with the Industrial Relations Act 1996. Amendments 01 October 2021 - Minor amendment to cover sheet. 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: 01 October 2021