Industrial Relations Commission New South Wales Medium Neutral Citation: Owens Transport Pty Limited t/as Mainfreight Wharf – TWU New South Wales – Contract Carriers Agreement 2023 [2023] NSWIRComm 1067 Hearing dates: Determined on the papers Date of orders: 7 July 2023 Decision date: 07 July 2023 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: Pursuant to s 325 of the Act, the Owens Transport Pty Ltd t/a Mainfreight Wharf – TWU New South Wales – Contract Carriers Agreement 2023 is approved Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Awards and agreements – application for approval of contract agreement Legislation Cited: Anti-Discrimination Act 1977 Industrial Relations Act 1996 ss 33, 38, 39, 42, 324, 325, 329 Cases Cited: Review of the Principles for Approval of Enterprise Agreements 2021/2022 [2022] NSWIRComm 1005 Texts Cited: Nil Category: Principal judgment Parties: Transport Workers' Union of New South Wales (Applicant) Owens Transport Pty Ltd (Respondent) Representation: R Rasmussen, TWU (Applicant) M Reid, Owens Transport Pty Ltd (Respondent) File Number(s): 2023/00138980 Publication restriction: No DECISION 1. On 1 May 2023 the Transport Workers' Union of New South Wales ("TWU") filed an application pursuant to s 329 of the Industrial Relations Act 1996 ("Act") seeking a variation to the Owens Transport Pty Ltd – TWU New South Wales Contract Carriers Agreement 2020 ("2020 Agreement"). 2. The nature of the application was unclear. While it purported to be an application for variation, it did not identify the particular variations sought to the 2020 Agreement. Instead, it annexed a document in the form of a complete contract agreement which was said to incorporate the agreed changes. On the face of the application, that document would entirely replace the 2020 Agreement. The document had not been signed by the parties and the application was not supported by any evidence that the terms of the proposed agreement, or the variations to the 2020 Agreement, had gone through the necessary process of approval. 3. I listed the matter for directions on 8 May 2023. At that time there was an appearance by the TWU, but no appearance by the principal contractor, Owens Transport Pty Ltd trading as Mainfreight Wharf ("Owens Transport"). The outcome of the mention was that the matter was stood over pending receipt from the TWU of an amended application. 4. On 29 June 2023 the TWU filed with the Industrial Registry a document titled "Owens Transport Pty Ltd t/a Mainfreight Wharf – TWU New South Wales – Contract Carriers Agreement 2023" ("Proposed Agreement"), together with an affidavit of Richard Olsen, the State Secretary of the TWU, sworn on 28 June 2023. The Proposed Agreement had been signed on 16 June 2023 on behalf of the TWU, Owens Transport and elected representatives of the carriers engaged by Owens Transport to whom the Proposed Agreement will apply ("Carriers") 5. While it was apparent that the intention of the TWU was to seek approval of the Proposed Agreement, there was no application before the Commission seeking the same. 6. Consequently, I listed the matter further mention on 4 July 2023. On that occasion, there were appearances by each of the TWU and Owens Transport. By consent, I granted the TWU leave to file an amended application, on receipt of which the matter would be determined "on the papers". 7. On 5 July 2023 the TWU filed with the Industrial Registry an application pursuant to section 324 of the Act for approval of the Proposed Agreement. The application annexed a copy of the Proposed Agreement,. 8. In his affidavit Mr Olsen deposed as follows: 1. the contract determination over which the Proposed Agreement will prevail is the Transport Industry – General Carriers Contract Determination ("Contract Determination"); 2. the Proposed Agreement will rescind the 2020 Agreement; 3. the terms and conditions of the Proposed Agreement are in addition to the conditions of engagement under the Contract Determination, and the rates provided under the Proposed Agreement are higher than the Contract Determination; 4. the Proposed Agreement does not provide a net detriment, on balance, to the Carriers; 5. the process of negotiation involved several months of discussions between the TWU, the Carriers and the management of Owens Transport; 6. the Proposed Agreement was discussed with and endorsed by the Carriers prior to it being signed by the parties; 7. the Proposed Agreement meets all relevant statutory requirements, including the requirements of the Anti-Discrimination Act 1977 as the Proposed Agreement "does not discriminate on the grounds of race, sex, pregnancy, marital status, status as a carer, disability, homosexuality, transgender, responsibility as a carer, compulsory retirement, Age [sic], HIV/AIDS vilification, homosexual vilification, transgender vilification and racial vilification"; 8. the parties did not enter into the Proposed Agreement under duress and signed of their own will, and understand the effect of the Agreement; and 9. the Agreement complies with the principles set by the Commission under s 33 of the Act. 1. The Proposed Agreement identifies in cl 2 the parties to whom it applies. Pursuant to cl 20, it will "commence on and from the date of ratification by the Commission" and continue in force for a period of 12 months "and thereafter". The Proposed Agreement contains in cl 17 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 Owens Transport Pty Ltd t/a Mainfreight Wharf – TWU New South Wales – Contract Carriers Agreement 2023 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: 07 July 2023