Industrial Relations Commission of New South Wales CITATION: Transport Workers' Union of New South Wales v. First Fleet Pty Limited [2006] NSWIRComm 1172 APPLICANT Transport Workers' Union of New South Wales PARTIES: RESPONDENT First Fleet Pty Limited FILE NUMBER(S): IRC 2239 and 2241 of 2006 CATCHWORDS: industrial dispute - industrial action - contract drivers - contract agreement made LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 07/12/2006 EXTEMPORE JUDGMENT DATE : 12/07/2006 APPLICANT Greg Selig Transport Workers' Union of New South Wales LEGAL REPRESENTATIVES: RESPONDENT Evan Wissell First Fleet Pty Limited DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Thursday, 7 December, 2006 Matter Nos IRC 2239 and 2241 of 2006 Transport Workers' Union of New South Wales and First Fleet Pty Limited Notification under S.332 of the Industrial Relations Act, 1996 by First Fleet Pty Limited re work stoppage Notification under S.332 of the Industrial Relations Act, 1996 by the Transport Workers' Union of New South Wales re reduction in the rates of remuneration for contract drivers DECISION [2006] NSWIRComm 1172 1 Pursuant to the provisions of S.130 of the 1996 Industrial Relations Act, First Fleet Pty Limited, trading as Zip Express Couriers, lodged a notification of an industrial dispute with the Transport Workers' Union of New South Wales. Contract drivers engaged by First Fleet in the distribution of a range of magazines to newsagents and supermarkets had imposed a ban on that work. Because the dispute concerns contract drivers under the terms of the Transport Industry - General Carriers Contract Determination, the matter falls under Part 4, Dispute Resolution, of Chapter 6, Public Vehicles and Carriers, of the 1996 Industrial Relations Act [S.332] and not S.130. I have corrected the file accordingly. The TWU has also lodged a notification of dispute under S.332 concerning this matter and it was also allocated to me. 2 The two complementary matters came before me for a conference on Wednesday, 26 April, 2006 and Thursday, 27 April, 2006. On Wednesday, 26 April, 2006 a request was made that I issue a direction that the contract drivers cease their industrial action to permit the concerns of the contract drivers to be addressed by the orderly processes of conciliation. I made that direction and the contract drivers complied with it. I programmed the matters for a further conference on Wednesday, 3 May, 2006 and a mention on Wednesday, 24 May, 2006. At that time I stood the matter over generally. The parties were to continue their negotiations in the meantime. 3 I reconvened the proceedings on Wednesday, 15 November, 2006 on my own initiative to be informed that the parties were now close to reaching an agreement on the matter. The agreement was to take the form of a contract agreement for the First Fleet contract drivers engaged in the driving duties associated with print media distribution. In anticipation that that contract agreement would be finalised shortly, I set the matters down for hearing on Thursday, 7 December, 2006. In the hearing Mr Selig represented the TWU and Mr Wissell represented First Fleet. The agreement between First Fleet and the TWU has taken the form of a new contract agreement - the First Fleet Pty Limited Print Media Distribution Contract Agreement. 4 In terms of S.324(1): "Application for approval of a contract agreement may be made by lodging the agreement with the Industrial Registrar in accordance with this Part and the rules of the Commission." Therefore, ordinarily a separate application for approval of a contract agreement would need to be lodged by the parties. But whilst there may be some unorthodoxy in processing a contract agreement before me in these proceedings, instead of lodging a fresh application, I see no reason why an application for approval of a contract agreement may not be dealt with in these proceedings which are already afoot. That would certainly be the speedier course to adopt. In accordance with S.163(1)(a), I am not bound to act in a formal manner. In accordance with S.163(1)(c), I may act: "…according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms" 5 In terms of S.325(1), the approval of a contract agreement (following the similar provisions of S.35 for enterprise agreements covering employees) is conditional upon the following: (i) compliance with relevant statutory requirements (including the 1977 Anti-Discrimination Act); (ii) that there is no net detriment for the drivers or carriers to be covered by the proposed contract agreement when it is compared with the aggregate package of conditions of engagement under the relevant contract determination - in this case the Transport Industry General Carriers Contract Determination which will continue to operate in conjunction with the proposed new contract agreement; (iii) that the parties understand the effect of the contract agreement; and (iv) there is no duress on the parties to the contract agreement. 6 Enterprise agreements for employees are also governed by the principles laid down by the Full Bench of the State Industrial Relations Commission (Fisher J - President, Cahill J - Vice President, Bauer and Schmidt JJ and Neal C) in the Enterprise Agreements Case (1996) 70 IR 437, convened in accordance with S.33. S.325(3) provides that, mutatis mutandis, the Full Bench decision should also apply to contract agreements. 7 The proposed contract agreement has a life of less than three years [S.42(2]. It contains a clause dealing with the settlement of industrial disputes [Clause 14, Settlement of Disputes]. I am satisfied that there are no impediments to the approval of the proposed contract agreement. I propose to approve it. The proposed contract agreement shall operate on and from the beginning of the first pay period to commence on or after Thursday, 7 December, 2006. 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.