Industrial Relations Commission New South Wales Medium Neutral Citation: Team Global Express Bungarribee Contract Carriers Agreement 2021 [2024] NSWIRComm 1002 Hearing dates: Determined on the papers Date of orders: 24 January 2024 Decision date: 24 January 2024 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: The Team Global Express Bungarribee Contract Carriers Agreement 2021 is approved in accordance with s 325 of the Industrial Relations Act 1996 Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – application for approval of contract agreement Legislation Cited: Anti-Discrimination Act 1977 Industrial Relations Act 1996 ss 33, 324, 325 Industrial Relations Commission Rules 2022 r 6.9 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) Team Global Express Pty Ltd (Respondent) Representation: S Nasser, Transport Workers' Union (Applicant) S Evans, Team Global Express Pty Ltd (Respondent) File Number(s): 2024/00017163 Publication restriction: No DECISION 1. The Transport Workers' Union of New South Wales ("TWU") has applied for approval of a contract agreement to be known as the Team Global Express Bungarribee Contract Carriers Agreement 2021 ("Agreement"). The application is brought pursuant to s 324 of the Industrial Relations Act 1996 ("Act"). 2. The parties to the Agreement are the TWU and Team Global Express Pty Ltd ("TGE"): cl 3.1. The Agreement was executed on behalf of TGE on 8 December 2023 and on behalf of the TWU on 12 January 2024. 3. On reading the TWU's application and the material filed in support of it, two matters of particular concern arose. First, cl 5.1 of the Agreement provides that its nominal term was 1 September 2021 to 1 September 2023. That is, the Commission is being asked to approve a contract agreement after the expiry of its nominal term. Second, the evidence filed in support of the application did not wholly address the requirements of 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, as required by s 325(3) of the Act. 4. I listed the matter for mention on 18 January 2024. Sophia Nasser appeared for the TWU. Stephanie Evans appeared for TGE. 5. During the mention, I had the following exchange with Ms Nasser: "COMMISSIONER: …The matter has been listed for mention today for a couple of reasons. First and foremost, I guess, to invite the parties to give - explain to me why it is that there is an application for approval [of an] agreement which has passed its nominal expiry date. Ms Nasser are you able to shed any light on that? NASSER: Yes, thank you, Commissioner, that must have been interesting coming across your desk without context so I do apologise. So, the background for that is on 30 August 2021 the TWU and the respondent entered into a Common Law Deed regarding the sale of the Global Express Division of Toll to Allegro Funds. So, a part of that - as part of that sale, the contract of contract carriers working in the Global Express Division transferred by agreement from Toll Transport to the respondent. So, as part of the operative provisions of that deed, the respondent acknowledged and agreed that it would continue to apply the terms of the applicable industrial agreement after the completion of the transaction until these instruments were terminated or replaced. So, what we are seeking to do is establish a contract agreement that applies from the date of the sale, which was 1 September 2021, so that there is an industrial instrument that covers the contract carriers from that time. In terms of the expiry, being 1 September 2023, the rationale behind this was this would give the parties scope to commence negotiating for a new agreement immediately having regard to the changes that have taken place in the business since the sale and to be able to align those with other industrial instruments that the parties are a party to which will expire in 2026. So, that is kind of the rationale behind the application." 1. Ms Nasser went on to say that one of the rationales in making the application was the perceived "ease of enforcement" of an industrial instrument as opposed to a common law deed. She submitted that nothing in the Act precluded the approval of the Agreement, despite it having passed its nominal expiry date. 2. Ms Evans informed me that TGE had no submissions to make on the point. I took this to mean that TGE took no issue with the position advanced by the TWU. 3. The mention was concluded on the basis that the matter be stood over pending receipt from the TWU of further evidence in support of its application, on receipt of which the application would be determined "on the papers". 4. Section 325 of the Act relevantly provides as follows: 325 Approval of contract agreement by Commission (1) The Commission is to approve each contract agreement lodged for approval, but only if the Commission is satisfied that— (a) the agreement complies with all relevant statutory requirements (including the requirements of this Part and of the Anti-Discrimination Act 1977), and (b) the agreement does not, on balance, provide a net detriment to the drivers or carriers who are to be covered by the agreement when compared with the aggregate package of conditions of engagement under relevant contract determinations that would otherwise apply to the drivers or carriers, and (c) the parties understand the effect of the agreement, and (d) the parties did not enter the agreement under duress. (2) This subsection applies to a contract agreement that applies to contracts of carriage entered into by some but not all of the carriers engaged by the principal contractor or contractors bound by the agreement, unless those carriers comprise a distinct geographical, operational or organisational unit. The Commission is not to approve such a contract agreement if it is satisfied that— (a) the contract agreement fails to cover other carriers engaged by the principal contractor or contractors who would reasonably be expected to be covered, given the nature of the work performed under the contracts to which the agreement applies and the organisational and operational relationships between the carriers bound by the agreement and those other carriers, and (b) it is unfair not to cover the carriers excluded from the contract agreement. (3) The Commission is to follow the principles for approval set under section 33 (Principles for approval of enterprise agreements), with any necessary modifications, when deciding whether to approve a contract agreement, unless satisfied that any departure from those principles would not prejudice the interests of any of the parties to the agreement. 1. The TWU's application is supported by two affidavits of Gavin Webb, the TWU's Chief Legal Officer, affirmed on 12 January 2024 and 22 January 2024 respectively. In his first affidavit, Mr Webb deposed that: 1. the Agreement will prevail over the Transport Industry – General Carriers Contract Determination ("Contract Determination"), in so far as the provisions of the Contract Determination apply to the contract carriers to whom the Agreement applies. However, the terms and conditions contained in the Agreement are in addition to those provided in the Contract Determination; 2. the Agreement will rescind and replace the Toll Express Parcels (Bungarribee) Contract Agreement 2019; 3. the Agreement does not provide a net detriment, on balance, to the contract carriers to whom it applies; 4. the Agreement complies with relevant statutory requirements, including the Anti-Discrimination Act 1977; 5. the parties did not enter into the Agreement under duress and signed of their own will after negotiation of the Agreement; 6. the parties understand the contents and effect of the Agreement; and 7. the Agreement complies with the principles set by the Commission under s 33 of the Act. 1. In his second affidavit, Mr Webb deposed: "3. Management of Team Global Express Pty Ltd (TGE) and the Transport Workers' Union of New South Wales (TWU) were involved in the process of negotiating the Team Global Express Bungarribee Contract Carriers Agreement 2021 (Contract Agreement). 4. The Contract Agreement was negotiated following the entry into a Common Law Deed by the parties on 30 August 2021 concerning the sale of the Global Express division of Toll Transport Pty Ltd to Allegro Funds. As part of this sale, the contracts of contract carriers working in the Global Express division of Toll transferred by agreement from Toll to TGE, which Allegro Funds acquired on completion of the sale. 5. As part of the operative provisions of the Deed, TGE acknowledged and agreed that it would continue to apply the terms of the applicable contract carrier industrial agreements after completion of the sale, until the applicable contract carrier industrial instrument is terminated or replaced. 6. The Agreement seeks to replace this applicable contract carrier industrial instrument, the Toll Express Parcels (Bungarribee) Contract Agreement 2019. 7. Due to the operation of clause 6.1 of the Contract Agreement, the dispute resolution procedure contained in clause 11 of the Global Express Contract Carriers Agreement 2022 is to be applied to disputes arising under the Contract Agreement." (Emphasis in original) 1. The TWU's application is accompanied by the necessary Statement of Particulars. 2. As already stated, the application is unusual in that it seeks the approval of a contract agreement which on its terms has passed its nominal expiry date. However, I do not find anything in the Act which precludes approval on that basis. There is no provision of the Act which deals with the retrospective operation of contract agreements, in contrast to s 318(3), for example, which limits the extent to which a contract determination may be expressed to apply retrospectively. 3. I also observe that s 325(1) of the Act is expressed in imperative terms. If the Commission is satisfied as to the matters in pars (a)-(d), it "is to approve" the contract agreement lodged for approval. 4. The Agreement was executed by the parties after its nominal expiry date. It is apparent that the parties intended at the time of executing the Agreement to apply for its approval by the Commission. Unsurprisingly, then, the application is brought by consent. Neither party raises any issue as to the power of the Commission to approve the Agreement on its terms. I am prepared to accept that the power exists, although I do so in the absence of the question having been fully canvassed before me. 5. The Agreement is stated to apply to carriers who are primarily engaged by TGE in its Express Parcels business, operating from its depot at 7 William Dean Street, Eastern Creek in New South Wales: cl 4.1. It is apparent from the terms of the Agreement that it does not apply to all carriers engaged by TGE. However, there is nothing on the evidence that would preclude approval of the Agreement on the grounds set out in s 325(2) of the Act. 6. The evidence led by the TWU does not in terms "compare the conditions of employment or engagement under the agreement with the comparative conditions of employment", as required by r 6.9(2)(b) of the Industrial Relations Commission Rules 2022. However, I note Mr Webb's evidence that the terms of the Agreement "are in addition to" those in the Contract Determination. 7. Overall, 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. Order 1. The Team Global Express Bungarribee Contract Carriers Agreement 2021 is approved in accordance with s 325 of the Industrial Relations Act 1996. Damian Sloan Commissioner ********** Amendments 26 February 2024 - Previously uploaded the incorrect version of the Decision. Correct version of the Decision is uploaded. 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: 26 February 2024