Industrial Relations Commission of New South Wales CITATION: Transport Industry - Car Carriers Contract Determination [2006] NSWIRComm 1171 APPLICANT Transport Workers' Union of New South Wales PARTIES: RESPONDENT New South Wales Road Transport Association Inc Employers First FILE NUMBER(S): 3355 of 2006 CORAM: Macdonald C CATCHWORDS: Application for variation re Schedule 1/Rates of Remuneration - intervention by employer peak body - application supported by Respondent but then opposed - application to rescind and replace Contract Determination - Band-aid apporach submission - operative date in issue - application to vary granted LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 17/11/06 DATE OF JUDGMENT: 12/13/2006 APPLICANT Mr C Heuston, union official Transport Workers' Union of New South Wales LEGAL REPRESENTATIVES: RESPONDENTS Mr R Grace New South Wales Road Transport Association Inc Mr S Schmitke Employers First DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: MACDONALD C 13 December 2006 Matter No IRC 3355 of 2006 Transport Industry - Car Carriers Contract Determination Application by Transport Workers' Union of New South Wales for variation re Schedule 1 - Rates of Remuneration DECISION [2006] NSWIRComm 1171 1 This is an application by the Transport Workers' Union of New South Wales ("the Union") to vary the Transport Industry - Car Carriers Contract Determination ("the Contract Determination"), pursuant top s.320 of the Industrial Relations Act 1996 ("the Act"). The Union was represented by Mr C Heuston. 2 The named Respondent in the Union's application to the Contract Determination is: · New South Wales Road Transport Association (represented by Mr R Grace) An appearance was entered by Employers First in the proceedings. Although not a named Respondent to the filed application, Mr S Schmitke (who appeared for Employers First) advised that his organisation's appearance was of right pursuant to s.167(3) of the Act. That sub-section of the Act is in the following terms: "A State peak council may intervene in any proceedings before the Commission if it establishes that it or any one or more of its members has a sufficient interest in the proceedings." There was no objection taken on this cited legal representation issue. 3 The Union's application (subsequently amended and entered as Exhibit 1) sought an increase to the rates of remuneration in the Contract Determination in accordance with established formula. The proposed increase is to cover wages, standing costs and running costs of contract carriers covered by the Contract Determination. The amended application contained different percentage increases for different classes of vehicles. 4 The Union's application was set down for a Consent Hearing on its first listing (8 November 2006). This was when the amended application was handed up. The employer organisations were not in a position to give their consent to the amended application. Mr Grace advised that not all of the documentation associated with the original application had been filed with that application. He had just been provided that additional documentation in court and needed time to check the Union's calculations. The operative date sought by the Union (8 November 2006) was opposed. Mr Grace sought the setting down of the matter in a further week. Mr Schmitke for Employers First concurred. 5 The Union responded that it had already had discussions with the NSW Road Transport Association which organisation had pointed out one error in the application. Hence the amended application was handed up today, 8 November. The Union submitted that the application was in strict terms with the existing Contract Determination - nothing more, nothing less. The Union pursued an operative date of 8 November. The Union also made an aside that this Contract Determination had had a rather colourful history in the last twelve months over the application of the rise and fall formula which culminated in a settlement before a Full Bench. 6 Mr Grace responded that he had only received the amended application today and would need to check the calculations or the rates contained in the amended application. He did not oppose the application, subject to checking those rates, with an operative date from the first pay period on or after 8 November 2006. 7 The Commission suggested that the amended application be treated as an in-principle consent agreement with an operative date of today's proceedings instead of next week - unless there was a problem to the contrary. 8 Mr Schmitke advised that there was a problem to the contrary. The Union's application was opposed - not only on the calculations but philosophically. His organisation was philosophically opposed to the operation of this particular Contract Determination as a whole. His organisation wanted this Contract Determination replaced and an application had been made to that effect. Until that other application was resolved, there would be no consent to the Union's present application. 9 The Union was opposed to that submission. The application to rescind and replace this particular Contract Determination had been made twelve months prior and that was a matter for the employers to pursue. However, the present application before the Commission should not be delayed otherwise the contract carriers would not be reimbursed for costs incurred in the running of their business. 10 The Commission adjourned the matter for a week and directed the parties to confer. The Commission also directed that Employers First set out in writing to the Union (and Mr Grace), the grounds and reasons for objecting to the application. 11 The matter came on before the Commission on Wednesday, 15 November. The same appearances were taken. 12 The Commission advised it had received correspondence the day before from Employers First, and this correspondence set out the grounds and reasons for opposing the Union's application. There were five such grounds and shortly put were: a) The current Contract Determination does not meet the needs of the industry. There was an application on foot (IRC 05/6549) to rescind and replace the Contract Determination. b) The Union had not provided the data on which the Union bases the increases sought for the Contract Determination. c) Employers First will be filing an application to vary the Contract Determination in relation to the Diesel Fuel Rebate. Such variation will affect the way rates of payment are determined. d) Whilst all parties agreed on consent orders in relation to the determination arising from IRC 06/149, the employer parties provided their consent only to the rates within the determination and not the method of calculation by which rates are adjusted. e) The last variation to the Contract Determination was effective on and from 23 December 2005. Should the Commission grant the Union's present application as sought, then in the interests of consistency, the Commission should grant the application no earlier than the last determination (MFI 1/Ex 2). 13 There were submissions on both sides surrounding the foregoing grounds. The Union rejected these grounds. 14 Arising out of the proceedings, the Commission was made aware of the previously described "colourful history" behind the present application. Thus: a) The Union had filed a similar application which came before Marks J as a consent hearing in December 2005. (IRC 05/6113) b) There was an objection taken by the employer organisations to the granting of the application. That is, there was no consent. The employers raised concerns about past errors in the application of formulas for calculating remunerations for the contract carriers. These errors had resulted in over-remuneration. The NSW Road Transport Association had also, by that stage, lodged its application to rescind and replace the Contract Determination. c) Marks J relisted the Union's application on 23 December 2005 for hearing and issued an Ex-Tempore Decision granting the Union's application to vary the Contract Determination. The operative date was 23 December 2005. His Honour's Ex-Tempore Decision considered and rejected the employer's submissions as to past errors in the calculation of remuneration for contract carriers. His Honour noted in his Decision that the parties had agreed to engage in bona fide discussions in the new year in respect of the application (IRC 05/6594) by the NSW Road Transport Association to rescind and replace the Contract Determination. d) There was an appeal lodged (IRC 06/149) by the NSW Road Transport Association on 13 January 2006 against the Decision of Marks J. e) The application by the NSW Road Transport Association to rescind and replace the Contract Determination came back before Marks J on 1 February 2006. (A history of that file shows no other entry after that date. That is, there is no record of either party having the matter brought back on before Marks J after 1 February.) f) A Stay Order was sought and granted on 16 February 2006 by Kavanagh J who stayed the 4.86 per centum increase granted by Marks J. However, Her Honour determined that a smaller increase of 2.5 per centum be awarded until the appeal was determined. g) The parties reached a compromise with respect to their differing positions in respect of the Appeal proceedings (IRC 149/06). The parties handed up Consent Orders to the appellant bench which endorsed the Consent Orders whose terms were as follows: "1. Leave to appeal is granted. 2. The appeal is upheld. 3. The decision and orders made by his Honour Justice Marks on 23rd December 2005 in matter No. IRC 6113 of 2005 are quashed. 4. The stay granted by Her Honour Justice Kavanagh on 16th February 2006 is dissolved. 5. The Transport Industry - Car Carriers (NSW) Contract Determination is varied in accordance with 'Schedule A' attached hereto." The above Consent Orders were made on 18 August 2006. The parties advised the appellant bench that the original variation of 4.8 per centum awarded by Marks J, had been altered to a 4.2 per centum increase. Mr J Murphy, barrister for the NSW Road Transport Association submitted that the compromise reached by the parties "…wipes the slate clean as far as past mathematical errors of miscalculations… The matter should move on from here that the rates are ( sic "as") exhibited in Exhibit A are accepted by both sides as correct." Mr Murphy also went on to say that the compromise did not prejudice his client from pursuing its application to rescind and replace the current Contract Determination. 15 The matter came on for Hearing before the Commission on Friday, 17 November. The same appearances were taken. The parties put forward submissions reflecting their respective positions of 15 November. 16 At the conclusion of the submissions, the Commission issued an Ex Tempore Decision, with reasoning to be published later. This formal Decision encompasses that reasoning. The Ex Tempore Decision granted the Union's application in accordance with Exhibit 1. The operative date being on and from 15 November 2006. REASONING Operative Date 17 The Union filed an application on 25 October 2006, to vary the Contract Determination. The application was set down for a Consent Hearing on 8 November. On that day the Union handed up an amended application (Exhibit 1). This amended application reflected a discussion(s) that had taken place between the Union and the NSW Road Transport Association (the only Respondent to the Contract Determination). That organisation opposed an operative date of on and after 8 November. That organisation did not oppose the application, subject to checking those rates, with an operative date from the first pay period on or after 8 November. 18 Employers First appeared in the proceedings, not as a Respondent to the Contract Determination but as a State peak council. Employers First was opposed to the application and subsequently supplied written grounds in support. An aspect of those submissions was that, should the Commission grant the application, then the operative date should be "on and from 23 December" (underlining added). It was also put that the Union had not provided all of the data in order for the employer organisations to verify the Union's calculations. (Exhibit 2) 19 Although the NSW Road Transport Association gave its consent to the application on 8 November, subject to checking the rates contained in the application, that consent was withdrawn at the 15 November Hearing date. More than that, the NSW Road Transport Association would now be supporting the submissions of Employers First. 20 On 17 November, Employers First reiterated its position as to an operative date of 23 December on the basis that the industry covered by the Contract Determination has an expectation of such monetary increases occurring every twelve months. Employers First, however, put an alternate submission that if the Commission granted the Union's application, then the operative date should be the first full pay period on or after 17 November 2006. 21 The Commission issued an Ex Tempore Decision that the operative date for the Union's application is on and from 15 November 2006. 22 The Commission selected the date of 15 November from amongst the competing submissions as to operative date, as this was the date by which the NSW Road Transport Association had obtained all relevant documentation from the Union, in support of that application. 23 There was a submission by Employers First that the monetary increases to the Contract Determination should be twelve months apart. The Commission was not provided with evidence of an agreed position or arrangement between the Union and the NSW Road Transport Association (the only Respondent to the Contract Determination) that increases were to be twelve months apart. 24 There is a distinguishing feature between the variation awarded by Marks J and the variation under my consideration and which difference impacts on the twelve months apart submission. 25 In the proceedings before Marks J, the NSW Road Transport Association was represented by Mr Schmitke who later took up employment with Employers First. 26 The transcript of 15 December 2005 before Marks J (IRC 05/6113) has Mr Schmitke opposing the then variation sought by the Union. (At that time, he raised concerns about the way formulas were applied to increase the rates.) Relevantly, as to the distinguishing feature, Mr Schmitke said the application to vary the Contract Determination, went to providing remuneration for contract carriers for increases in costs incurred by those carriers for the period up until September and the variation provided for increases pursuant to the Transport Industry (State) Award from November 2005 and, as well, for increases to fuel prices up to November 2005. 27 The application by the Union for the variations to reflect costs increases up to November 2005 was filed on 24 November 2005. 28 In the case before myself, the Union submitted that the filed application (25 October 2006) reflected costs increases up to September and October 2005 only - and not a month later as for the 2005 application to vary the Contract Determination. This then allows for an earlier operative date for costs recovery by the contract carriers. 29 There was a submission that the operative date should be on the basis of "first pay period on or after" a certain date - as opposed to "on or after" a certain date. The evidence in the proceedings did not support a finding by the Commission that increases are always on the basis of the "first pay period on or after". The Commission was provided with a document (Ex 3) which itemised variations to the Contract Determination since 22 December 2000. There are seven variations listed. Of these, four variations were on the basis of "on and from", rather than "first pay period on or after". The above information indicates that there is no uniform approach to determining the operative date description. The Commission has exercised its discretion to follow the description of the last two variations which are described as "on and from". "Band-aid Approach" 30 There was a submission from Employers First that the Commission should not grant the Union's application for a variation to the Contract Determination. Employers First advised of an application by the NSW Road Transport Association to rescind and replace the current Contract Determination. That application had been made in 2005 and came before Marks J (IRC 05/6549) in December 2005. 31 It was put to the Commission that that application had been made because the current Contract Determination is unworkable; the formulas used in the Contract Determination are not appropriate and not suitable to the industry; and so forth. It was urged on the Commission not to take a "band-aid approach" to the Union's application. That is, the Commission should not grant the application as there was a more pressing matter at hand - the rescission and replacement of the current Contract Determination. 32 As to that submission the Commission notes that the application by an employer's organisation to rescind and replace that Contract Determination was last before Marks J on 1 February 2006 and has not since been agitated by that employer organisation to be brought back on before His Honour - for any purpose. 33 The Commission also notes that that employer organisation (then represented by Mr Schmitke) made the same submission in December 2005, as in November 2006, as to concerns about the way formulas were and are applied to increase the rates in the Contract Determination - and still that application to rescind and replace the Contract Determination has not been brought before Marks J since 1 February 2006. Decision 34 The Commission hereby confirms its Ex Tempore Decision of 17 November 2006 and grants the application, as amended, having regard to the material placed before the Commission and the submissions of the parties. 35 Accordingly, the Contract Determination is varied in the terms set out in Exhibit 1 and the operative date is on and from 15 November 2006. A Macdonald 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.