Industrial Relations Commission of New South Wales CITATION : TRANSPORT INDUSTRY (STATE) AWARD [2002] NSWIRComm 332 APPLICANT Transport Workers' Union of Australia, New South Wales Branch PARTIES : RESPONDENTS New South Wales Road Transport Association Inc. Australian Business Industrial Australian Industry Group, New South Wales Branch FILE NUMBER: IRC4459 of 2002 CORAM: Wright J President; Peterson J; Connor C CATCHWORDS : Award - Application to vary award - State Wage Case 2002 - Special case - No need to rely on special case principle - Consent of parties - Application approved under principle 2(e) - Award varied. LEGISLATION CITED : Industrial Relations Act 1996 Re Transport Industry (State) Award (1996) 95 IR 126 CASES CITED : Re Transport Industry (State) Award (1996) 95 IR 232 Marine Motor Drivers Coxswains &c (State) Award [1994] NSWIRComm 57 (unreported 31 May 1994 - IRC94/763) HEARING DATES: 11/13/2002 EXTEMPORE JUDGMENT DATE : 11/13/2002 APPLICANT Mr A Hatcher of counsel UNION Transport Workers' Union of Australia, New South Wales Branch. RESPONDENTS LEGAL REPRESENTATIVES: Mr M Baroni, solicitor New South Wales Road Transport Association Inc Mr R Brady, solicitor Australian Business Industrial Ms S Phillips Australian Industry Group, New South Wales Branch JUDGMENT: - 3 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: WRIGHT J, PRESIDENT PETERSON J CONNOR C DATE: 13 NOVEMBER 2002 Matter No IRC4459 of 2002 TRANSPORT INDUSTRY (STATE) AWARD Application by the Transport Workers' Union of Australia, New South Wales Branch for variation re monetary rates. DECISION (Extempore) 1 This application seeks to have increased wage rates in the Transport Industry (State) Award by an amount of $18 per week. The increase sought is equivalent in quantum to the State Wage Case adjustment made available as a result of the State Wage Case (2000) 114 IR 81. 2 The matter is brought to the Full Bench as a special case in the light of the history of two special case decisions, the first of which was in Re Transport Industry (State) Award (1996) 95 IR 126 which increased wage rates in the award by a total of 15 per cent in two tranches of 8 per cent on 26 December 1996 and 7 per cent from 31 May 1997. The second was the 2000 special case (see Re Transport Industry (State) Award (1996) 95 IR 232), which increased wage rates by a total of 10 per cent, in two tranches of five per cent on 10 April 2000 and 10 April 2001 respectively. The second of those two increases constitutes the last increase in wage rates in the Award. 3 In relation to the present application, certain employer groups were, at an early stage of the proceedings, opposed to the increases sought. The position has altered such that the Road Transport Association and Australian Business Industrial have expressed positive consent to the application. The Australian Industry Group initially adopted a position of no opposition, but has now accepted that its position is analogous to one of consent. 4 Employers First also initially adopted a position opposed to the application but subsequently indicated that it would no longer appear in the proceedings and no appearance has been made today for that organisation. 5 The Transport Workers' Union has submitted that it is now not necessary to process the matter as a special case. Reference was made in submissions to an earlier decision of the Commission, sitting under the Industrial Relations Act 1991 ('the 1991 Act'), in Marine Motor Drivers Coxswains &c (State) Award [1994] NSWIRComm 57 (unreported 31 May 1994 - IRC94/763). In that matter the principal employer parties consented to the making of an award. The then Employers' Federation of New South Wales indicated in correspondence only a modest interest in the matter and an intention to make no submission. The Commission therefore accepted that as an indication of acquiescence in or consent to the award for the purposes of s111 of the 1991 Act which was in similar terms to the present s17(3). 6 The employer parties now agree with the submission of the Transport Workers' Union that the matter may be dealt with pursuant to principle 2(e) of the Commission's Wage Fixing Principles. That principle provides: In the following circumstances an award may, on application, be varied or another award made without the application requiring consideration as a special case: (e) where the application is consented to by the parties it will be dealt with in terms of the Act. 7 Section 17(3) of the Act relevantly provides: An award may be varied or rescinded in any of the following circumstances only: (a) at any time with the mutual consent of all the parties to the making of the original award. 8 As to the non-appearance by Employers' First and the absence therefore of an expression of view of that organisation in these proceedings, and having regard to the expressed view by Full Benches in that regard in the 1996 and 2000 special case judgments, we do not regard the position as affecting the consent which exists in these proceedings. We are satisfied that the matter may be dealt with under principle 2(e). 9 The Transport Workers' Union and the Road Transport Association, supported by Australian Business Industrial and Australian Industry Group, have made succinct submissions as to the circumstance which they submit make it appropriate for the Commission to exercise its discretion to make an award under that principle. The gravamen of those submissions is contained in documents earlier filed. We accept those submissions. 10 We therefore propose to grant the application in terms of Exhibit FB1 effective from today's date. 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.