Industrial Relations Commission of New South Wales CITATION: Transport Workers' Union of New South Wales and Hytec Concrete Pty Ltd [2009] NSWIRComm 164 NOTIFIER Transport Workers' Union of New South Wales PARTIES: RESPONDENT Hytec Contrete Pty Ltd FILE NUMBER(S): IRC 831 of 2009 CORAM: Sams DP CATCHWORDS: INDUSTRIAL DISPUTE - compulsory conferences - concrete carrying industry - contract carriers' agreement - larger vehicle rates not covered by existing agreement - protracted negotiations - principles for approval of contract agreements - Commission satisfied all statutory requirements met - agreement to bind parties until 2012 - periodic adjustment of rates - no net detriment to carriers - agreement not entered into under duress - parties understand terms of agreement - agreement approved. LEGISLATION CITED: Anti-Discrimination Act 1977 Industrial Relations Act 1996 HEARING DATES: 29 September 2009 DATE OF JUDGMENT: 29 September 2009 NOTIFIER Mr G Selig Transport Workers' Union of New South Wales LEGAL REPRESENTATIVES: RESPONDENT Mr M Diamond Workplace Advisory Group JUDGMENT: - 4 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 29 September, 2009 Matter No IRC 831 of 2009 Notification under section 332 by Transport Workers' Union of New South Wales of a dispute with Hytec Concrete Pty Ltd re negotiations with outstanding issues in a new agreement DECISION [2009] NSWIRComm 164 1 This decision concludes a notification of an industrial dispute pursuant to s 332 of the Industrial Relations Act 1996 ('the Act') between the Transport Workers' Union of New South Wales ('the Union') and Hytec Concrete Pty Ltd ('the Company'). The dispute was notified on 9 June 2009, and concerned the renegotiation of an Agreement between the Company and its contract carriers. While the current Agreement is not due to expire until 1 January 2012, the Company has required a greater capacity of trucks to be utilised in its fleet and the rates for driving these trucks are not covered by the current industrial instrument. Two other issues were said to be outstanding - certain underpayment claims and the duration of the new Agreement. 2 Compulsory conference proceedings were listed on a number of occasions and on 29 September 2009, the Commission was advised that an agreement had been finalised and formalised in terms of a document tendered in the proceedings (Exhibit 1). 3 Mr M Diamond, appearing for the Company, sought the Commission's approval of the new Agreement. He submitted that the Agreement complies with all the relevant statutory requirements, including the provisions of the Anti-Discrimination Act 1977. He said that the parties understand the effect of their agreement and it was self evident (due to the involvement of the Union) that it was not entered into under duress. Further, the Agreement does not, on balance, provide any net detriment to the carriers when compared to the relevant contract determination. 4 Mr Diamond said that while the Agreement had a statutory life of three years commencing from 1 October 2009, it was the parties' intention to bind themselves to long term arrangements until 2021. The cartage rate will be regularly reviewed according to agreed processes under the Agreement. Another significant provision concerned the interaction of the Company's contract carrier fleet (totalling 36 contract carriers) with its employee drivers (at present numbering 25). This will provide the Company with greater flexibility while ensuring all of the drivers' interests are protected. 5 Mr G Selig from the Union supported Mr Diamond's submissions and sought the Commission's approval of the Agreement. CONSIDERATION 6 Section 325 of the Act provides that a contract agreement is to be approved by the Commission, but only if the Commission is satisfied that: (a) the agreement complies with all relevant statutory requirements (including the requirements of this Part and of the Anti-Discrimination Act 1977 ), and (b) the agreement does not, on balance, provide a net detriment to the drivers or carriers who are to be covered by the agreement when compared with the aggregate package of conditions of engagement under relevant contract determinations that would otherwise apply to the drivers or carriers, and (c) the parties understand the effect of the agreement, and (d) the parties did not enter the agreement under duress. (2) This subsection applies to a contract agreement that applies to contracts of carriage entered into by some but not all of the carriers engaged by the principal contractor or contractors bound by the agreement, unless those carriers comprise a distinct geographical, operational or organisational unit. The Commission is not to approve such a contract agreement if it is satisfied that: (a) the contract agreement fails to cover other carriers engaged by the principal contractor or contractors who would reasonably be expected to be covered, given the nature of the work performed under the contracts to which the agreement applies and the organisational and operational relationships between the carriers bound by the agreement and those other carriers, and (b) it is unfair not to cover the carriers excluded from the contract agreement. (3) The Commission is to follow the principles for approval set under section 33 (Principles for approval of enterprise agreements), with any necessary modifications, when deciding whether to approve a contract agreement, unless satisfied that any departure from those principles would not prejudice the interests of any of the parties to the agreement. 7 Having heard the submissions of the parties, and upon a review of the terms of the Agreement, I am satisfied that the proposed Agreement, as contained in Exhibit 1 in the proceedings, meets all of the statutory requirements, in particular section 325 of the Act and, being so satisfied, I am prepared to approve the making of the Agreement. 8 The Agreement is to commence on 1 October next and to remain in statutory force until 30 September 2012; the Commission noting, however, that it is the intention of the parties to bind them to the Agreement for a period of 12 years. 9 The Commission also notes that the Agreement has been the subject of long and intensive negotiations over many months and it comes before the Commission by consent of both parties. 10 In approving the Agreement referred to in Exhibit 1, the Commission congratulates the parties on the development of the Agreement and the approach they have taken to their industrial relationship such as to bind them to a long standing arrangement with various rise and fall arrangements in place over the Agreement's life. I congratulate the parties on reaching their Agreement. These dispute proceedings are thereby concluded. Peter J Sams, AM Deputy President 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.