Transport Industry - Redundancy (State) Contract Determination [2007] NSWIRComm 183

Industrial Relations Commission of New South Wales

CITATION: Transport Industry - Redundancy (State) Contract Determination [2007] NSWIRComm 183

APPLICANT Transport Workers' Union of Australia, New South Wales Branch

RESPONDENTS: Australian Business Industrial PARTIES: Australian Federation of Employers and Industries Australian Industry Group Hanson Construction Materials Pty Ltd Metromix Pty Ltd New South Wales Road Transport Association Rinker Australia Pty Ltd Waste Contractors and Recyclers' Association of New South Wales

FILE NUMBER(S): 7121 of 2003

CORAM: Sams DP

Application for new contract determination - first application for general minimum redundancy standards for carriers in the road transport industry - challenge to jurisdiction - whether contract determination can be made requiring redundancy pay to be paid to a carrier by a principal contractor - nature of contractual arrangements - statutory construction - meaning of expression 'any matter arising under a contract of carriage' and 'with respect to' - whether contract determination can impose obligations on parties after termination - origin and purpose of statutory provisions- whether minimum redundancy standards for employees should be provided to carriers - obligations to give notice, consultation and redundancy pay - differences between carriers and employees - Union's claim modified to take account of employers' concerns - nature of carriers' employment - many existing agreements and contract determinations make provision for redundancy benefits - restructuring of the industry - proportion of coverage of redundancy arrangements- carriers on fixed term contracts - permanent carriers engaged over long periods - contracts rolled over - calculation of carriers' remuneration - components of remuneration - extent of offsetting - double counting - exemptions sought - failure to provide alternative proposals - history of jurisdiction covering carriers - history of redundancy provisions in New South Wales. CATCHWORDS: Held; relevant words of the statute have wide scope - obligations arise and continue after termination of the contract - existing redundancy provisions would be invalid - problem of enforceability - rationale of legislative provisions - challenge to jurisdiction rejected - evidence largely uncontested - rare for carriers to be made redundant - redundancy arrangements for carriers not novel - existing redundancy arrangements far exceed claim - vulnerability of carriers - little difference between carriers and employees - control and direction by principal contractors - effects of redundancy similar - hardship and inconvenience demonstrated - claim seeks minimum redundancy benefits - costs to industry minimal - redundancy pay not a contingent liability - 'case by case' approach will still continue - offsetting sufficiently addressed such as to avoid double counting - concessions of Union reflected in claim - recognition of true fixed term contracts - exemptions for short term contracts - purpose of redundancy pay not defeated by reference to carriers' remuneration - risk faced by respondents in offering no alternative - focus on redundancy pay - other aspects of claim uncontroversial - Union satisfied evidentiary burden - new contract determination made - draft orders.