Industrial Relations Commission of New South Wales CITATION: Transport Industry - Car Carriers Contract Determination [2009] NSWIRComm 1092 REPRESENTATIVE OF THE CONTRACT DRIVERS Transport Workers' Union of New South Wales PARTIES: REPRESENTATIVE OF CONTRACT PRINCIPALS Australian Industry Group FILE NUMBER(S): IRC 945, 1698 and 1784 of 2009 CORAM: Connor C CATCHWORDS: transport industry - contract determination - car carriers - variation of contract determination to reflect agreement of the parties - contract determination varied by consent LEGISLATION CITED: Industrial Relations Act 1996 CASES CITED: Car Carriers Contract Determination Case [2009] NSWIRComm 1044 HEARING DATES: 03/12/2009 EXTEMPORE JUDGMENT DATE : 3 December 2009 REPRESENTATIVE OF CONTRACT DRIVERS Greg Selig Transport Workers' Union of New South Wales LEGAL REPRESENTATIVES: REPRESENTATIVE OF CONTRACT PRINCIPALS Brent Ferguson Australian Industry Group DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Thursday, 3 December, 2009 Matter Nos IRC 945, 1698 and 1784 of 2009 Transport Industry - Car Carriers Contract Determination Application by the Transport Workers' Union of New South Wales under S.320 of the Industrial Relations Act, 1996 for variation re rates of remuneration Application by the Transport Workers' Union of New South Wales under S.320 of the Industrial Relations Act, 1996 for variation re Schedule 2 Application by the Australian Industry Group under S.320 of the Industrial Relations Act, 1996 for variation re Schedule 2 DECISION [2009] NSWIRComm 1092 1 Three related applications - by the Transport Workers' Union of New South Wales and the Australian Industry Group - have been lodged pursuant to the provisions of Part 2, Contract Determinations, of Chapter 6, Public Vehicles and Carriers [Ss.311 to 331], of the 1996 Industrial Relations Act, seeking variation to the Transport Industry - Car Carriers Contract Determination. The applications concern the rates of remuneration to contract car carriers in this State and the formula used to calculate adjustments to that rate, viz: (i) an application by the TWU lodged on Tuesday, 30 June, 2009 seeking adjustment of the rates of remuneration of contract car carriers according to the existing formula, allocated to me and the subject of a series of conferences before me; (ii) an application by the TWU lodged on Thursday, 29 October, 2009, initially the subject of conference proceedings before Marks J on Monday, 16 November, 2009 and Monday, 23 November, 2009 and subsequently allocated to me at the request of the parties; and (iii) an application by the AIG lodged on Thursday, 12 November, 2009 and also allocated to me. I had set the applications down for mention on Wednesday, 25 November, 2009 and adjourned the proceedings for the conference required by S.315 and the hearing on Thursday, 3 December, 2009. In the hearing Mr Selig , representing the TWU and Mr Ferguson , representing the AIG. 2 Schedule 2 to the Car Carriers Contract Determination currently provides a formula under which adjustments to the rates and allowances applying to contract car carriers in this State are made. Those adjustments are made on an annual or interim basis, with certain specified indicia used as a benchmark, ie the cost of insurance, the cost of tyres, repair and maintenance costs and the cost of fuel. In that respect Clause 5 of Schedule 2 of the Car Carriers Contract Determination provides for interim adjustments, viz: "If the benchmark for the cost components of insurances, tyres, repairs and maintenance and fuel increases between adjustments to the extent that it causes an increase to the total rates greater than 2%, then an interim adjustment may be applied for." The first TWU application seeks the annual adjustment according to the established formula. The second TWU application seeks a modest increase to the remuneration of the contract car carriers [1.68%] but represents a departure from the arrangements of the established formula. The AIG applications seek substantial alterations to the formula. 3 In my unreported decision of Thursday, 13 August, 2009 in the Car Carriers Contract Determination Case [Matter No.IRC 202 of 2009] I had, in fact, read the interim arrangements of Clause 5 of Schedule 2 as, in a sense, a "rise and fall" provision, accepting that the interim arrangements contemplated a deduction in rates of remuneration as well as an increase. Whilst a strict reading of Clause 5 suggested that it was only available where there was an increase in the benchmarks, I believed that I was not obliged to follow that strict reading in the proceedings for a variation of the contract determination and I commented (at p.7) that:. "...I believe that to prevent car carrier principals the same rights that were available to the car carrier contract drivers by virtue of Clause 5 is fundamentally inequitable and, in my view, contrary to the spirit of the provision..." I varied the contract determination by reducing the rates of remuneration by 1.97%. 4 With respect to the current applications by the TWU and the AIG, there have been extensive negotiations with respect to the Car Carriers Contract Determination and an agreement has been reached between the parties which has been committed to a document which represents the consent variation to the contract determination for car carriers. The variation gives effect to the annual adjustments contemplated in Schedule 2 (according to the established timetable) and rectifies certain unintended errors which have emerged from the last gazetted variation to the contract determination. In particular, the variation provides for: * the inclusion of a three month delay on the commencement of all annual variations to the rates of remuneration; * the inclusion of fuel as a component of the benchmarks - the "trigger point" for calculation of any interim adjustments provided in Clause 5 of Schedule 2 for interim adjustments; and * the alteration of Clause 5 of Schedule 2 to confirm the "rise and fall" nature of the provision. 5 The variation to the Car Carriers Contract Determination in accordance with the document provided by the parties in the hearing [Exhibit 1] shall have effect from the beginning of the first pay period to commence on or after Tuesday, 25 February, 2010. The TWU and the AIG have given an undertaking that there will be no further variations to the contract determination for a period of twelve months from the date of this decision other than annual of interim adjustments to the rates of remuneration under Schedule 2 or as necessary to reflect alterations to the relevant fuel rebate scheme of the schedule (or its replacement). 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.