Industrial Relations Commission New South Wales Medium Neutral Citation: FedEx Express Australia – TWU New South Wales (Contract Carriers) Agreement 2022-2024 [2023] NSWIRComm 1057 Hearing dates: Determined on the papers Date of orders: 13 June 2023 Decision date: 13 June 2023 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: Pursuant to s 325 of the Act, the FedEx Express Australia – TWU New South Wales (Contract Carriers) Agreement 2022-2024 is approved. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Awards and agreements – application for approval of contract agreement Legislation Cited: Industrial Relations Act 1996 ss 33, 38, 39, 42, 322, 324, 325 Cases Cited: Review of the Principles for Approval of Enterprise Agreements 2021/2022 [2022] NSWIRComm 1005 Texts Cited: Nil Category: Principal judgment Parties: FedEx Express Australia Pty Ltd (Applicant) Transport Workers' Union of New South Wales (Respondent) Representation: C Tirado, FedEx Express Australia Pty Limited (Applicant) G Webb, Transport Workers' Union of New South Wales (Respondent) File Number(s): 2023/00183893 DECISION 1. On 8 June 2023, FedEx Express Australia Pty Ltd ("FedEx Express") filed an application pursuant to s 324 of the Industrial Relations Act 1996 ("Act") for the approval of a contract agreement made under s 322 of the Act between FedEx Express and the Transport Workers' Union of New South Wales ("TWU"). On its terms, the agreement is to be known as the "FedEx Express Australia – TWU New South Wales (Contract Carriers) Agreement 2022-2024" ("Agreement"). 2. I arranged for the application to be listed for hearing on 26 June 2023. However, on 9 June 2023 the Commission received an email from Gavin Webb, the Chief Legal Officer of the TWU, which included the following: "I refer to the above matter and the attached notice of listing for this matter to be heard by Sloan C on 26 June 2023 by Telephone. The TWU, with the support of the Applicant, make the following request: 1. Due to the operational effect of a number of conditions in the new contract agreement only taking effect after approval of the agreement by the Commission, there is some urgency in having the Contract Agreement registered. 2. The TWU of NSW consents to the Application made by FedEx and does not object to any of the evidence filed by FedEx. The TWU of NSW does not intend to file any evidence or make any submissions in support of the application, unless required to by the Commission. 3. We are of the view that, unlike s 316(1) of the Act which appears to require the Commission to hear applications for Contract Determinations before making them, there is no such requirement in relation to Contract Agreements, notwithstanding the TWU's preference for such matters to be heard in most circumstances. 4. On that basis, unless the Commission intends to make inquiries of the parties at the hearing, we request that the hearing be vacated and the matter be determined on the papers in chambers at the Commission's earliest convenience. I can confirm that FedEx support this approach and I have copied in Ms Tong into this correspondence." (Emphasis in original) 1. Consistent with this request, I have determined the application for approval of the Agreement "on the papers". 2. In support of its application, FedEx Express filed an affidavit of Liza Tong, an Employee Relations Adviser, sworn on 1 June 2023. While the affidavit does not expressly say so, I presume Ms Tong to be an employee of FedEx Express. In her affidavit Ms Tong deposed that: 1. the Agreement will, if approved, prevail over the provisions of the Transport Industry – General Carriers Contract Determination 2017 ("Contract Determination") to the extent of any inconsistency, but otherwise the terms of the Contract Determination will apply; 2. the Agreement will rescind the TNT Australia – TWU New South Wales (Contract Carriers) Agreement 2017-2020; 3. the Agreement does not provide a net detriment, on balance, to contract carriers covered by the Agreement. The rates provided under the Agreement are higher than those in the Contract Determination; 4. the process of negotiation for the Agreement involved several months of discussions between management of FedEx Express, the TWU and contract carriers engaged by FedEx Express; 5. the Agreement was discussed and endorsed by the contract carriers engaged by FedEx Express prior to being signed by the parties to the Agreement; 6. the Agreement complies with relevant statutory requirements, including the Anti-Discrimination Act 1977; 7. the parties did not enter into the Agreement under duress and signed of their own will after negotiation of the Agreement; 8. the parties understand the contents and effect of the Agreement; and 9. the Agreement complies with the principles set by the Commission under s 33 of the Act. 1. The Agreement identifies in cll 2 and 6 the parties and the carriers to whom it applies. Under cl 6(i)(a), the Agreement will come into effect seven days after it has been approved by the Commission and remain in operation until 30 June 2024. The Agreement contains in cl 11 a dispute resolution provision. The application attaches the necessary Statement of Particulars. 2. Having regard to these matters, I am satisfied on the material presented to the Commission that the Agreement 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 2021/2022 [2022] NSWIRComm 1005. The Agreement meets the requirements of ss 38, 39 and 42 of the Act. 3. Pursuant to s 325 of the Act, the FedEx Express Australia – TWU New South Wales (Contract Carriers) Agreement 2022-2024 is approved. 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: 13 June 2023