Industrial Relations Commission New South Wales Medium Neutral Citation: Application for Variations to Transport Industry – General Carriers Contract Determination 2017 [2022] NSWIRComm 1029 Hearing dates: 12 April 2022 Date of orders: 12 April 2022 Decision date: 12 April 2022 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: I make orders in accordance with the Short Minutes of Order filed on 12 April 2022 Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Contracts of Carriage – application for variation to contract determination – consent position – variations ordered Legislation Cited: Industrial Relations Act 1996 s 320 Cases Cited: Applications to Vary the Transport Industry – General Carriers Contract Determination 2017 and Transport Industry – Courier and Taxi Truck Contract Determination [2022] NSWIRComm 1003 Texts Cited: Nil Category: Principal judgment Parties: Transport Workers' Union, New South Wales FedEx Express Australia Pty Limited NSW Business Chamber Limited The Australian Industry Group New South Wales Branch The Australian Road Transport Industrial Organisation Toll Group Representation: G Webb (TWU) C Tirado (FedEx Express) R Kingston (NSWBC, ARTIO) D Murray (AiGroup) D Russell (Toll Group) File Number(s): 2022/77087 Publication restriction: No EX TEMPORE decision 1. The Commission has before it an application under s 320 of the Industrial Relations Act 1996 to vary the Transport Industry – General Carriers Contract Determination 2017 ("Determination"), which was filed by the Transport Workers Union of New South Wales ("TWU") on 15 March 2022. The most substantive change sought by the application is to update the running rates provided for by the Determination to "allow for the recent and sudden exponential increase in the price of diesel fuel". 2. The application named as respondents the following, in order: Toll Group, TNT Australia Pty Limited (now FedEx Express Australia Pty Limited) ("FedEx"), Linfox Australia Pty Limited, NSW Business Chamber Limited ("NSW Business Chamber"), the Australian Road Transport Industrial Organisation NSW ("ARTIO"), The Master Builders' Association NSW, the Australian Industry Group NSW Branch ("AiGroup"), the Australian Federation of Employers and Industries and IPEC Pty Limited. 3. I listed the matter for directions on 31 March 2022. On that occasion, the AiGroup, ARTIO, FedEx, the NSW Business Chamber, Toll Group and of course the TWU were represented. I was informed that the parties were hopeful of reaching a consent position in respect of the application. I adjourned the proceedings for hearing to 11 April 2022, in anticipation of the matter proceeding by consent. 4. On 11 April 2022, the appearances remained unchanged. I was informed by the parties that while they remained optimistic that the matter would proceed by way of consent, a further short period was required to confirm that position. I adjourned the proceedings for hearing today. 5. Earlier today, the TWU filed the following: 1. an affidavit of Gavin Mark Webb, Chief Legal Officer of the TWU, sworn 11 April 2022; 2. an outline of submissions dated 11 April 2022; and 3. proposed Short Minutes of Order. 1. In his affidavit, Mr Webb deposed: "11. Presently, the AIP Weekly Fuel Price that is used for the purpose of calculating the running rate in the GCCD is $1.23 per litre. 12. As a result of the Russian invasion of Ukraine, as well as other external factors, global fuel prices have exponentially increased since the end of February 2022. 13. The AIP Weekly Fuel Price as at the date of making this affidavit is $2.136 per litre and the average of all AIP Weekly Fuel Prices published in March 2022 is $2.063 per litre, some 68% higher than accounted for in the current running rates in the GCCD. 14. I also note that the GCCD Rate Model deducted an amount from the fuel price component on account of Commonwealth Government's fuel tax credit subsidy, to reflect that carrier[s] could claim a tax credit to assist in subsidising their fuel costs. The Commonwealth Government has since reduced the fuel tax credit rate to 0, meaning it is no longer relevant to deduct that amount from the fuel price component in the GCCD Rate Model. 15. Following the TWU filing its application for these proceedings, the parties held negotiation meetings and have exchanged various methods for adjusting the GCCD Rate Model to account for the exponential increase in fuel prices. 16. The parties have since reached a consent [position] to provide for a 'Temporary Fuel [Surcharge]' which adequately reflect[s] an increase in the running rates provided for in the GCCD commensurate to the increase in fuel prices in recent time[s] and certainly since the Rate [Variation] Case." 1. In its outline of submissions, the TWU contended: "11. The current rates of remuneration under the GCCD for vehicle[s] with a carrying capacity of over 3 tonnes, allow for a fuel component in the running rates based off an average fuel price of $1.23 per litre (including GST). 12. Since late February 2022, there has been a significant fluctuation in the average fuel price for diesel across New South Wales as a result of external market factors, principally due to the Russian invasion of Ukraine. 13. As at the time of this application, the average retail price for diesel in New South Wales for the month of March was approximately $2.063 per litre (including GST). … 16. Following the TWU filing this application, the parties to the GCCD have conferred with a view to agree[ing] on an appropriate variation to the GCCD to compensate for the sudden increase in the price of fuel, whilst applying the principles and calculations as set out in the Rate Review Procedure and the GCCD Rate Model respectively. … 19. At the time of making this submission, the TWU understands that there is no opposition, and in fact consent from all concerned parties, to vary the GCCD in accordance with the orders sought as set out in Annexure C and the TWU submits that the Commission should exercise its discretion to vary the GCCD on that basis alone. … 25. For the reasons set out in these submissions, particularly at paragraphs 18-19, and taking into consideration the evidence set out in the Affidavit of Gavin Webb dated 11 April 2022, the TWU submits that the variations sought to the GCCD as detailed in these submissions represent fair and reasonable rates of remuneration for contracts of carriage and are necessary to properly remunerate Contract Carriers on account of an unexpected significant fluctuation in the price of fuel. 26. Further, the TWU submits that is in the public interest to make the variations sought to ensure that Contract Carriers are afforded safe rates of pay which allow them to operate safely whilst driving on public roads they share with the wider New South Wales public." 1. At today's hearing: 1. Mr Murray, who appeared for AiGroup, informed me that AiGroup does not oppose the application; 2. Mr Russell, who appeared for Toll Group, stated that Toll Group has no objection to the application; and 3. Mr Kingston, who appeared for NSW Business Chamber and ARTIO, and Ms Tirado who appeared for FedEx, confirmed that the parties they represent consent to the application. 1. In Applications to Vary the Transport Industry – General Carriers Contract Determination 2017 and Transport Industry – Courier and Taxi Truck Contract Determination [2022] NSWIRComm 1003, I set out at [7]-[12] the principles to apply when dealing with applications such as the one before the Commission. It is not necessary that those passages be reproduced. 2. I am satisfied that the variations proposed to be made to the Determination would result in fair and reasonable conditions for the contract carriers to which it applies. It is an appropriate exercise of my discretion to give effect to those variations. 3. Accordingly, I make orders in accordance with the Short Minutes of Order filed by the TWU today. I note for clarity that those orders anticipate that they will take effect on 18 April 2022. 4. In yesterday's proceedings, Mr Webb indicated that these orders do not necessarily resolve all of the issues arising out of the application, given the particular volatility in the price of fuel at the moment. Mr Murray properly pointed out that some consideration will need to be given to the machinery of future changes to those rates. In those circumstances, these orders are not to be taken as resolving these proceedings in their entirety and the matter will remain open pending any further application that a party wishes to make. 5. The matter will be listed for report back at an appropriate time in the future, on a date to be advised. Damian Sloan 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: 20 April 2022