Industrial Relations Commission New South Wales Medium Neutral Citation: Application for variation of the Transport Industry – General Carriers Contract Determination 2017 [2024] NSWIRComm 1072 Hearing dates: 28 November 2024 Date of orders: 29 November 2024 Decision date: 29 November 2024 Jurisdiction: Industrial Relations Commission Before: Commissioner McDonald Decision: (1) By consent the Transport Industry – General Carriers Contract Determination 2017 is varied in accordance with Schedule B to the Amended Application filed on 28 November 2024. (2) The variation will take effect on and from the first full pay period commencing 1 December 2024. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — Application for variation of Contract Determination – Variations proposed to rates in accordance with agreed method of adjustment and to correct typographical errors arising from earlier variations – Variation made by consent Legislation Cited: Industrial Relations Act 1996 (NSW), ss 320, 335 Category: Principal judgment Parties: Transport Workers' Union of New South Wales The Australian Industry Group NSW Branch NSW Business Chamber Limited Toll Group FedEx Express Australia Pty Limited Linfox Australia Pty Ltd Australian Road Transport Industrial Organisation NSW The Master Builders Association of NSW Australian Federation of Employers and Industries John Fairfax Publications Pty Ltd Representation: B Ryan (TWU) S Kelleher (Australian Industry Group NSW Branch) R Kingston (NSW Business Chamber Ltd) File Number(s): 2024/427934 Publication restriction: None DECISION 1. This is an application made by the Transport Workers' Union of New South Wales (TWU) to vary the Transport Industry – General Carriers Contract Determination 2017 (the Determination) pursuant to s 320 of the Industrial Relations Act 1996 (NSW) (IR Act). 2. The TWU is registered as an association of contract carriers in accordance with section 335 of the IR Act. 3. The TWU is also the 'Union' as defined in clause 1.1 of the Determination. 4. The Determination took effect on and from 15 April 2017 and has been varied frequently since that time. 5. Schedule C of the Determination provides a procedure for regular adjustment of the rates payable to contract carriers. Clause C.1.2 of Schedule C of the Determination requires that the 'Union' is to make an application to the Industrial Relations Commission of New South Wales for a variation in rates and amounts in sufficient time for the variation to be made on or before 1 June and 1 December each year. 6. The TWU's application is to vary certain rates and amounts contained in Schedules A and B of the Determination, as set out in Schedule B to the application. I understand that the variations proposed accord with the method of adjustment for rates and amounts set out in Schedule C of the Determination. 7. The TWU also seeks to insert a new subclause 'A.2A' in Schedule A to the Determination providing for a Trailer Allowance which it says was unintentionally omitted in a previous application to vary the Determination and related amendments to cll 20.2 (e) and (f) (i) & (ii) of the Determination. 8. The named Respondents to the application, are numerous registered groups, organisations and associations of employing contractors. 9. When the matter first came before me on 22 November 2024 Mr Bailey Ryan appeared on behalf of the TWU, Mr Shaun Kelleher appeared on behalf of the Australian Industry Group and Mr Rhys Kingston appeared on behalf of the NSW Business Chamber Ltd, Toll Group and Team Global Express. 10. Messrs Ryan, Kelleher and Kingston informed me that the proposed variation to the Determination was consented to, subject to Mr Ryan checking whether some further amendment was required to the Determination due to the inclusion of the proposed Trailer Allowance and Mr Kelleher confirming that that the calculations of the proposed revised rates was correct. To provide time for those matters to be attended to I made a direction that the matter be set down for hearing on 28 November 2024 at 12:00pm at which time orders would be made by consent in accordance with Schedule B to the application, unless the parties advised otherwise. I also excused the parties from attendance on 28 November 2024 if the matter was to be dealt with by consent. 11. On 27 November 2024 the TWU filed, with my leave, an amended application which included in Annexure B the above-mentioned proposed amendments to cll 20.2 (e) and (f) (i) & (ii) of the Determination and informed the Commission that those respondents who had appeared, did not object to the making of those amendments. 12. During the morning of 28 November 2024, while preparing for the hearing, I noticed that cl C.1.1 of Schedule C of the Determination provided as follows: The rates prescribed in Schedule B and C shall be adjusted with effect from 1 June and 1 December each year or as provided in this Schedule. 1. The variation proposed by the TWU seeks to adjust the rates prescribed in Schedules A and B to the Determination. It appeared to me that the reference to Schedules B and C in cl C.1.1 was likely a typographical error and that cl C.1.1 should in fact refer to Schedules A and B. Accordingly, at short notice I requested Messrs Ryan, Kelleher and Kingston to attend the hearing on 28 November 2024, which they did by telephone. 2. Messrs Ryan, Kelleher and Kingston confirmed that the reference in cl C.1.1 to Schedules B and C rather than Schedules A and B was indeed a typographical error arising from variations made to the Schedules since 2017. During our discussion Mr Kingston also noticed that cl C.1.8 contained a similar error, as it wrongly referred to subclause E.1 instead of subclause C.1. 3. While I considered that the correction of cll C.1.1 and C.1.8 would be unlikely to be contentious, I was not prepared to make such a variation to Schedule C of the Determination without all interested parties being given notice of the proposed variation. Accordingly, on 28 November 204 I made the following directions. 1. Direct the TWU to file and serve on all interested parties by no later than 3pm on 28 November 2024 an amended Schedule B to the application to include amendment of cll C.1.1 and C.1.8 of Schedule C to the Determination. 2. Direct the TWU to advise all interested parties by 3pm on 28 November 2024 why the proposed amendment to cll C.1.1 and C.1.8 is required and that if any party has an objection to the proposed variation to the Determination they should advise the Commission by no later than 11am on 29 November 2024. 3. If no objection is received by the Commission by 11am on 29 November 2024, the Commission will vary the Determination in accordance with the amended Schedule B to the application on 29 November 2024, in chambers and by consent, and the file will be closed. 4. If any objection to the proposed variation is received by the Commission prior to 11am on 29 November 2024, the matter will be listed for directions and the parties will be advised of the listing date. 1. The TWU duly filed an Amended Application on 28 November 2024. 2. As no objection to the proposed variation of the Determination as set out in Schedule B to the Amended Application has been received, I now make the following orders: 1. By consent the Transport Industry – General Carriers Contract Determination 2017 is varied in accordance Schedule B to the Amended Application filed on 28 November 2024. 2. The variation will take effect on and from the first full pay period commencing 1 December 2024. Janet McDonald 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: 29 November 2024