Contract for Services – Contract Carrier Time Critical Courier Sydney [2023] NSWIRComm 1087

Industrial Relations Commission New South Wales Medium Neutral Citation: Contract for Services – Contract Carrier Time Critical Courier Sydney [2023] NSWIRComm 1087 Hearing dates: Determined on the papers Date of orders: 24 August 2023 Decision date: 24 August 2023 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: Pursuant to s 325 of the Industrial Relations Act 1996 the Contract for Services – Contract Carrier Time Critical Courier Sydney 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, 322, 324, 325 Cases Cited: FedEx Express Australia – TWU New South Wales (Contract Carriers) Agreement 2022-2024 [2023] NSWIRComm 1057 Review of the Principles for Approval of Enterprise Agreements 2021/2022 [2022] NSWIRComm 1005 Texts Cited: None Category: Principal judgment Parties: FedEx Express Australia Pty Ltd (Applicant) Transport Workers' Union of Australia, New South Wales (Respondent) Representation: C Tirado (FedEx Express) (Applicant) S Nasser (Transport Workers' Union ) (Respondent) File Number(s): 2023/00256037 Publication restriction: No

DECISION 1. On 11 August 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 Australia, New South Wales Branch ("TWU"). On its terms, the agreement is to be known as the "Contract for Services – Contract Carrier Time Critical Courier Sydney". 2. Having read the proposed agreement, I had some concerns as to whether it was in a form capable of being approved. In particular, it did not expressly "describe the class of contracts to which it relates", as required by s 322(4A) of the Act. 3. As a result, I arranged for the application to be listed for mention on 17 August 2023. At that mention, FedEx Express was represented by Catherine Tirado and the TWU by Sophia Nasser. During the discussion which ensued between the parties and me, I was persuaded that the intention of the parties regarding the coverage of the proposed agreement was clear and that the failure to expressly record this in the document was in the nature of an administrative oversight. Consequently, I granted FedEx Australia leave to file an amended application once the proposed agreement had been amended to address this matter. 4. On 22 August 2023 FedEx Express filed an amended application, attaching an amended version of the proposed agreement. A new cl 2.1A had been inserted into the proposed agreement, which provides that the agreement "will cover all Contract Carriers whose services would otherwise be covered by the Transport Industry – Courier and Taxi Truck Contract Determination". (For convenience, I will refer to the agreement which FedEx Express to which the amended application relates as the "Agreement".) 5. On 23 August 2023 I arranged for the Registry to send an email to the parties, to enquire whether they wished to be heard further on the matter or were content for me to determine the amended application "on the papers" in chambers. In email responses received later that day, each of FedEx Express and the TWU expressed a preference for the matter to be determined "on the papers". 6. The amended application is supported by an affidavit of Liza Tong, an Employee Relations Adviser employed by FedEx Express, sworn on 22 August 2023. In her affidavit Ms Tong deposed that: 1. the Agreement will, if approved, prevail over and apply in lieu of the provisions of the Transport Industry – Courier and Taxi Truck Contract Determination; 2. the Agreement will replace the Ansett Couriers – Sydney Contract Agreement 2000 and the TNT Domestic and International Express Local Courier Agreement; 3. the Agreement does not provide a net detriment to contract carriers covered by the Agreement "vis a vis 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 under 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 is in an unorthodox form. Consistent with its title, it reads as if it were a contract for services entered into between an individual contract carrier and FedEx Express. It does not bear the usual hallmarks of a collective agreement. The Agreement is also unusual in not describing in its title the principal contractor to which it relates, or the year in which it was made. In these respects, the Agreement may be contrasted with the agreement between FedEx Express and the TWU that I approved in FedEx Express Australia – TWU New South Wales (Contract Carriers) Agreement 2022-2024 [2023] NSWIRComm 1057. 2. While to my mind these matters, and particularly the form of the Agreement, are not desirable, and may result in some confusion, I do not consider that they necessarily preclude approval of the agreement. That said, I strongly encourage the parties to have regard to my observations if and when the time comes to negotiate an agreement to replace the Agreement. 3. As already stated, the Agreement identifies in cl 2.1A the carriers to whom it applies. The parties are defined in cl 19(a). Under cl 2.3, read in conjunction with the definition of "Commencement Date" in cl 19(a), the Agreement will come into effect on the day it is approved by the Commission and remain in force for a period of three years. The Agreement contains in cl 15 a dispute resolution provision. The amended application attaches the necessary Statement of Particulars. 4. Having regard to these matters, and despite the shortcomings in the form of the document, 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. 5. Pursuant to s 325 of the Industrial Relations Act 1996 the Contract for Services – Contract Carrier Time Critical Courier Sydney is approved. Damian Sloan Commissioner