Industrial Relations Commission of New South Wales CITATION: Transport Workers' Union of New South Wales v. Courier and Taxi Truck Association and others [2005] NSWIRComm 1150 APPLICANT Transport Workers' Union of New South Wales FIRST RESPONDENT Courier and Taxi Truck Association PARTIES: SECOND RESPONDENT Road Transport Association of New South Wales THIRD RESPONDENT Employers First FILE NUMBER(S): 3641 of 2005 CORAM: Connor C couriers and taxi truck owner drivers - contract regulation - increase in cost of petrol - increase to fuel levy CATCHWORDS: LEGISLATION CITED: Industrial Relations Act 1996 Courier and Taxi Truck Contract Determination Case - unreported CASES CITED: Couriers and Taxi Truck Fuel Levy Case - unreported HEARING DATES: 09/08/2005 EXTEMPORE JUDGMENT DATE : 09/08/2005 APPLICANT Charlie Heuston Transport Workers' Union of New South Wales FIRST RESPONDENT Kathy Robertson LEGAL REPRESENTATIVES: Courier and Taxi Truck Association SECOND RESPONDENT Shaun Schmitke Road Transport Association of New South Wales THIRD RESPONDENT Allison Tyrell Employers First DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Thursday, 8 September, 2005 Matter No IRC 3641 of 2005 Transport Workers' Union of New South Wales and the Courier and Taxi Truck Association and others Application under S.312 of the Industrial Relations Act, 1996 for variation of the Transport Industry - Courier and Taxi Truck Contract Determination re increase to the fuel levy DECISION [2005] NSWIRComm 1150 1 An application has been lodged by the Transport Workers' Union of New South Wales for variation of the Transport Industry - Courier and Taxi Truck Contract Determination to provide for an increase to the fuel levy paid to couriers and taxi truck owner drivers. The matter came before me for mention on Wednesday, 3 August, 2005 and Friday, 19 August, 2005. The conference required by S.315 was convened before me on Thursday, 8 September, 2005 and the matter proceeded into a hearing immediately after that conference. In the proceedings Ms Robertson represented the Courier and Taxi Truck Association, Mr Heuston represented the TWU, Mr Schmitke represented the Road Transport Association of New South Wales and Ms Tyrell represented Employers First. 2 The fuel levy had its origin in proceedings before the Transport Industry - Courier and Taxi Truck Industrial Committee under my chairmanship. The TWU had lodged an application for a new contract determination for contract couriers and agreement in principal had, in fact, been reached on the bulk of issues in the TWU application - sufficient, in any event, for the industrial committee to unanimously make an interim contract determination for contract couriers late in 2000. However, the industrial committee had also raised for the consideration of the parties the prospect of a fuel levy to meet the problems associated with the increases in the cost of fuel at that time. 3 The fuel levy was not strictly part of the agreement in principle reached between the parties for a new contract determination before the industrial committee but in its decision of Friday, 20 October, 2000 in the Courier and Taxi Truck Contract Determination Case [Matter No. IRC 2138 of 2000 at pp.5 and 6] the industrial committee indicated that it made the interim contract determination in the terms presented to it: "…with reluctance and regret. It still sees the issue of fuel for the contract couriers to be a major problem which has not to date been adequately addressed by the parties and which should be addressed in everybody's interest. Current and likely developments affecting oil supplies, both locally and internationally, suggest to us that this is a problem which, in the short term at least, is not going to improve…" Ultimately, by a further unanimous decision of the industrial committee, a fuel levy of 2% calculated on gross remuneration was incorporated in Schedule VI of the contract determination for contract couriers early in 2001. 4 It was intended that the fuel levy was to have a finite life. After Monday, 9 April, 2001 leave was reserved to any of the parties to make application for its abolition, reduction or increase. Essentially by agreement of the parties the fuel levy was based on a new formula (calculated on a calendar month), viz: "If the Caltex Metro (New South Wales) Card Price for unleaded petrol exceeds 82 cents per litre (excluding GST) for a calendar month, an application may be made for a contract determination requiring the principal contractor to pay to the carrier in addition to all other remuneration received, an additional amount as a fuel levy equal to a specified percentage of the carrier's gross remuneration for each pay period observed by the principal contractor in place of the levy contained in Clause 1. 5 There was initially some dispute over the time for the calculations for the formula - and that dispute apparently remains. The TWU had sought five consecutive days instead of the calendar month. It was the majority decision of the industrial committee that the existing fuel levy be retained for the present time and that the formula be calculated on the calendar month. 6 The RTA subsequently lodged an application for abolition of the fuel levy and that matter was allocated to me sitting alone. The application did not proceed. The matter was to be the subject of further discussions between the parties. The RTA's intention, announced in the proceedings before me, was to review the current formula for the calculation of the fuel levy (not abolish it as its application proposed). In the meantime, the RTA sought to stand its application over generally. That course was opposed by the TWU, which sought that I dismiss the application. In the circumstances, I saw no good purpose being served by leaving the application dormant and in my unreported decision of Wednesday, 23 April, 2003 in the Couriers and Taxi Truck Fuel Levy Case [Matter No.IRC 6988 of 2002] I dismissed the RTA application. 7 There has been no further developments over the fuel levy until the current TWU application before me. It is with that history that I come to consider the TWU claim before me for an increase to the fuel levy in accordance with an amended application which Mr Heuston has provided to me. The fuel levy is determined by averaging the cost of unleaded petrol for the five days preceding the date that the application for a fuel increase is actually determined, ie Thursday, 8 September, 2005. Mr Heuston's calculations result in a 4% fuel levy in Schedule VI to 4%, viz: "In addition to all other remuneration received by the contract carrier, the principal contractor shall pay the contractor an additional amount as a fuel levy. The fuel levy amount shall be equal to 4% of the carrier's gross remuneration for each pay period observed by the principal contractor." Ms Robertson's calculations result in a 3% fuel levy but, in the circumstances, I propose to rely on Mr Heuston's application of the existing formula which seems to me to more accurately reflect the current approach to the issue. 8 The TWU application was not opposed by Mr Schmitke and Ms Tyrell. However, there is a complication involving the CTTA which on Monday, 5 September, 2005 had lodged an application for a separate Courier and Taxi Truck (Fuel Levy) Contract Determination with a new methodology for the fuel levy. Ms Robertson has indicated that, while she supported an increase in the fuel levy, she preferred a new methodology on which that fuel levy should be calculated. She claims that the present method of calculating the fuel levy works against the interests of the courier and taxi truck owner drivers. 9 Ms Robertson has sought to join the CTTA application with the TWU application. That course would result in further delay to the application currently before me. I have to say that at the time of the hearing the CTTA application had not been allocated to me (although enquiries I have made suggest that it soon will be). After all, the CTTA application was only lodged with the Registry three days ago. It is trite to say that I cannot join an application which is not properly before me and obviously the parties would need some time to consider their position with respect to it, in any event. 10 In the meantime, in my opinion, the separate CTTA application is no reason to delay this TWU application before me. I accept that the present formula for the fuel levy has not been without its critics. It is hardly Holy Writ. It was established as a stopgap measure by the members of the industrial committee to address a problem which they perceived - and which, of course, not only still exists but, as every motorist knows, has grown worse. But until the review of the fuel levy proposed by the CTTA is completed, I see no reason why, on an interim basis at least, that the current TWU application should be set aside or remain dormant. Until such times as something better is worked out between the parties, or arbitrated before me, the existing formula is all I really have to go by. 11 I therefore propose to vary the contract determination in accordance with the TWU application effective from the beginning of the first pay period to commence on or after Thursday, 8 September, 2005. P J CONNOR 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.