Industrial Relations Commission of New South Wales CITATION: Transport Workers' Union of New South Wales v. New South Wales Road Transport Association and Employers First [2006] NSWIRComm 1183 APPLICANT Transport Workers' Union of New South Wales PARTIES: FIRST RESPONDENT New South Wales Road Transport Association SECOND RESPONDENT Employers First FILE NUMBER(S): IRC 5493 of 2004 CORAM: Connor C CATCHWORDS: application to industrial committee - variation of contract determination - safety net - second instalment of increase to safety net - prospective increase LEGISLATION CITED: Industrial Relations Act 1996 CASES CITED: Contract Couriers and Taxi Truck Drivers Case - unreported Contract Couriers and Taxi Truck Drivers Interim Increase Case [2006] NSWIRComm 1014 HEARING DATES: 19/12/2006 DATE OF JUDGMENT: 12/19/2006 EXTEMPORE JUDGMENT DATE : 12/19/2006 APPLICANT Charlie Heuston Transport Workers' Union of New South Wales LEGAL REPRESENTATIVES: FIRST RESPONDENT Rod Grace New South Wales Road Transport Association SECOND RESPONDENT Shaun Schmitke Employers First DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES TRANSPORT INDUSTRY COURIER AND TAXI TRUCK INDUSTRIAL COMMITTEE CORAM: CONNOR C (chairman) RICHARD OLSEN (committee member) Tuesday, 19 December, 2006 Matter No IRC 5493 of 2004 Transport Workers' Union of New South Wales and the New South Wales Road Transport Association and Employers First Application under S.312 of the Industrial Relations Act, 1996 for variation of the Transport Industry - Courier and Taxi Truck Contract Determination re increased safety net DECISION [2006] NSWIRComm 1183 1 The Transport Workers' Union of New South Wales lodged an application to the Transport Industry Courier and Taxi Truck Industrial Committee under my chairmanship for a variation to the Transport Industry - Courier and Taxi Truck Contract Determination. The application was lodged on Monday, 13 September, 2004. It had sought to increase the rates of remuneration prescribed in the contract determination as a safety net by two instalments - 9.48% immediately and with a further 8.66% on and from Saturday, 1 January, 2005. There are, in fact, two rates of remuneration for contract couriers and taxi truck drivers, viz: (i) rates which provide a safety net - a guaranteed level of remuneration, calculated on an hourly basis, below which no contract courier may be engaged; and (ii) a unit rate - an incentive payment scheme based on the actual work performed. The adjustment proposed by the TWU does not affect the incentive payments made. 2 The matter has followed a convoluted course and almost eighteen months elapsed before partial resolution. On Friday, 27 January, 2006 by an unanimous decision of the industrial committee the contract determination for contract couriers and taxi truck drivers was varied to reflect an agreement reached between the TWU and the Road Transport Association of New South Wales - an interim increase to the safety net effective from Wednesday, 1 March, 2006 and an acknowledgement which provided for a further increase to both the safety net (excepting exclusive hire) and the adopted unit rate by not less than 6.92% effective no later than Thursday, 1 March, 2007. 3 The Courier and Taxi Truck Association had expressed opposition to any increase to the safety net, arguing that there was nothing in it for those contract couriers and taxi truck drivers on incentive schemes. The CTTA has consistently expressed the view that all contract couriers and taxi truck drivers should receive an increase to their remuneration and an increase to the safety net alone would not achieve that aim. The CTTA remained committed to the abolition of the safety net - a position it has consistently adopted when the question of the safety net was considered in proceedings before me (sitting alone) in 1998. 4 In my unreported decision of Monday, 22 June, 1998 the Contract Couriers and Taxi Truck Drivers Case [Matter Nos.3252 and 7101 of 1997 and 1872 of 1998] I commented (at p.53) that: "...I would not wish to place any barrier in the way of the incentive schemes in place for contract couriers. Individuals working in the industry have historically been remunerated by an incentive payment scheme and it is appropriate for that form of remuneration to remain in force. But I am satisfied that a case has been made out for the preservation of a safety net for contract couriers to underpin those incentive payments and ensure that the level of remuneration which contract couriers receive on an incentive scheme basis do not fall below a defined minimum. Implicit in any attempt to provide an enforceable document on which the contract courier industry may be effectively regulated - every party's stated aim in this hearing - is the need I see for a safety net to underpin the incentive schemes in place. I see that course as wholly consistent with the structure of the 1996 Act and, in particular, Chapter 6..." In the interim decision [the Contract Couriers and Taxi Truck Drivers Interim Increase Case ] I issued on Friday, 27 January, 2006 to formalise the interim increase to the safety net for courier and taxi truck drivers, I confirmed that position, commenting as follows on the CTTA position over its abolition (at p.7): "...I simply state that it is the TWU application which sets the agenda in this particular case before the industrial committee. If the CTTA wishes to fundamentally change the nature of the contract determination for contract couriers and taxi truck drivers - and what it is seeking to do in removing the safety net is a fundamental change - it should lodge its own application in that respect and it cannot effectively "piggy-back" on the TWU application which is confined and intent on preserving the safety net. I invite the CTTA to proceed so that the issues it has raised may be effectively addressed by all interested parties..." 5 In the meantime, I reconvened these proceedings for mentions on Friday, 3 March, 2006 and Wednesday, 26 April, 2006. I listed the matter for a speaking to the minutes on Thursday, 18 May, 2006 to finalise the interim increase and correct an error that had been included in the calculations provided to me by the parties. At that time I stood the matter over generally but reconvened the proceedings on Friday, 17 November, 2006 on my own initiate to determine what further action was required for this matter. 6 The matter resumed again on Tuesday, 19 December, 2006 for hearing. In the hearing Mr Heuston represented the TWU, Mr Grace represented the RTA and Mr Schmitke represented Employers First. Agreement has been reached between the TWU, the RTA and Employers First over the further adjustment to the rates of remuneration (giving effect to what had earlier been agreed between the TWU and the RTA and approved by the industrial committee). Mr Heuston provided a document [Exhibit I] to formalise the agreement. 7 There was no appearance for and on behalf of the CTTA in the hearing on Tuesday, 19 December, 2006. Mr Heuston informed me that he had made several attempts to contact it and provided to it the document which represented the agreed position with the RTA and Employers First. He had sought their urgent response. He received no reply. Nor had Mr Grace who has also attempted to contact it. 8 In the circumstances, I see no reason to delay the finalisation of this long outstanding matter, notwithstanding the absence of the CTTA in the hearing. As I indicated in my the Contract Couriers and Taxi Truck Drivers Interim Increase Case on Friday, 27 January, 2006 (at p.7), it was the unanimous decision of the industrial committee, (including at that time a representative of the CTTA) that both the interim increase to the safety net and an order confirming the subsequent increase be accepted. To that extent, this decision is simply a confirmation of an agreement already adopted by the industrial committee. 9 The contract determination shall be further varied in accordance with Exhibit I effective on and from Thursday, 1 March, 2007. P J CONNOR Chairman of Committee 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.