Industrial Relations Commission New South Wales Medium Neutral Citation: Hy-Tec Industries Pty Ltd – Maxi Concrete Cartage Contract Determination [2023] NSWIRComm 1010 Hearing dates: 6 February 2023 Date of orders: 6 February 2023 Decision date: 06 February 2023 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: (1) Pursuant to s 320 of the Act, the Determination is varied in accordance with Schedule B to the application; (2) Order (1) takes effect from the first full pay period on or after today's date; and (3) pursuant to s 174(a) of the Act, matter number 2022/00333343 is dismissed. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Awards and agreements – application for variation to contract determination to give effect to terms agreed in resolution of dispute Legislation Cited: Industrial Relations Act 1996 ss 320, 332 Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Hy-Tec Industries Pty Ltd (Applicant) Transport Workers' Union of Australia, New South Wales Representation: N Ward, Australian Business Lawyers and Advisors (Applicant) R Rasmussen, Transport Workers' Union of Australia (Respondent) File Number(s): 2023/00010206 and 2022/00333343 Publication restriction: No EX Tempore DECISION 1. On 7 November 2022 the Transport Workers' Union of Australia, New South Wales ("TWU") filed with the Industrial Registry a Notification of an Industrial Dispute ("Dispute") pursuant to s 332 of the Industrial Relations Act 1996 ("Act"). The Dispute was allocated matter number 2022/00333343. 2. The Dispute was notified by the TWU on behalf of a number of its members which are contract carriers engaged by Hy-Tec Industries Pty Ltd ("Hy-Tec") pursuant to the Hy-Tec Industries Pty Ltd – Maxi Concrete Cartage Contract Determination ("Determination"). The gravamen of the dispute was that due to the yard utilisation rates at Hy-Tec's Alexandria, Smeaton Grange and Dapto sites, the contract carriers were not recovering their costs while working for the company. This was a contention which was disputed by Hy-Tec. 3. I convened compulsory conferences of the Dispute on 28 November 2022, 14 December 2022 and 22 December 2022. Happily the parties were able to agree on terms to resolve the Dispute. The settlement, the details of which will become clear, necessitated a variation to the terms of the Determination. The proceedings were stood over pending the filing by Hy-Tec of an application to vary the Determination to give effect to the agreed settlement. 4. On 11 January 2023 Hy-Tec filed with the Industrial Registry an Application for Variation to a Contract Determination pursuant to s 320 of the Act ("Application"). In accordance with the procedures of the Registry, the Application was assigned a new matter number, 2023/00010206. 5. Schedule A to the Application was titled "Grounds, Reasons and Particulars", and set out at some length the basis on which the variation was sought. It is not necessary that the contents of Schedule A be reproduced at length. For context, however, I note that it included the following: "3. This Application arises out of a dispute heard before Commissioner Sloan in Matter No IRC 2022/00333343 - TWU of NSW v Hy-Tee Industries Pty Ltd - Cost Recovery Model. 4 The dispute concerns the operation of the cost and rate model used to generate utilisation based cartage rates for contract carriers operating under the Determination and whether it should be amended to operate below and above the utilisation thresholds currently built into the model at 6000m3 and 9000m3 respectively. 5. The matter was subject of a Conference before Commissioner Sloan on 14 and 22 December 2022. 6. At the Conference on 22 December 2022 the dispute was resolved on the basis that: (a) a payment of $3,000 (additional remuneration exclusive of GST) would be paid to certain agreed contract carriers operating from the Alexandria, Smeaton Grange and Dapto concrete plants; (b) the Determination would be varied to affirm that the cost and rate model used to generate utilisation based cartage rates for contract carriers would operate with new utilisation thresholds of 5500m3 and 9500m3 from the first pay period in January 2023; and (c) leave reserved would be granted to the parties in regard to the operation of the cost and rate model used to generate utilisation based cartage rates for contract carriers operating under the Determination. … 8. Accordingly, Hy-Tec now applies pursuant to section 320 of the Industrial Relations Act 1996 to vary the Determination in the manner set out in Schedule B. …" 1. The Application came before me today for conference. Nigel Ward of Australian Business Lawyers and Advisors appeared for Hy-Tec. Robert Rasmussen appeared for the TWU. As I say, the matter was listed for conference, during the course of which Mr Ward, on behalf of his client, gave an undertaking on the record, to the effect that if it became reasonably apparent to Hy-Tec that there was a possibility that utilisation would fall below 5,500 cubic metres at any plant, Hy-Tec would, as soon as reasonably practicable, initiate contact with the TWU to discuss what steps, if any, were required to be taken. 2. Otherwise, and by consent, the matter proceeded immediately into the hearing of the Application. Mr Ward largely spoke to the matters contained in Sch A to the Application. Mr Rasmussen drew my particular attention to the undertaking which had been provided by Mr Ward and noted the comfort which it provided to the TWU, particularly in light of the proposed new sub-clause 2.2(b), which is proposed to be inserted into the Determination as a result of the variations. Mr Rasmussen informed the Commission that in light of the undertaking offered by Hy-Tec through Mr Ward, the TWU consents to the variations sought in the Application. 3. As stated, the Application is designed to give effect to a settlement that was reached between the parties under the auspices of the Commission in matter number 2022/00333343. It is not surprising then that the TWU consents to the Determination being varied in accordance with the Application, albeit subject to the further undertaking provided by the company. The TWU's consent, and its involvement in the negotiations resulting in the settlement, provides me with significant comfort that the variations ought to be made. 4. I am persuaded in all of the circumstances that it is appropriate that the Determination be varied in accordance with the Application. I am satisfied that the variations would result in the Determination setting fair and reasonable conditions of engagement for the contract carriers to which it applies. 5. Accordingly, I order as follows: 1. pursuant to s 320 of the Act, the Determination is varied in accordance with Schedule B to the application; 2. Order (1) takes effect from the first full pay period on or after today's date; and 3. pursuant to s 174(a) of the Act, matter number 2022/00333343 is dismissed. 1. I direct that Hy-Tec file and serve short minutes giving effect to Orders (1) and (2) by close of business on Monday, 13 February 2023. 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: 07 February 2023