Industrial Relations Commission of New South Wales CITATION: Transport Workers' Union of New South Wales v. Boral Transport Limited [2008] NSWIRComm 1082 APPLICANT Transport Workers' Union of New South Wales PARTIES: RESPONDENT Boral Transport Limited FILE NUMBER(S): IRC 2221 of 2007 CORAM: Connor C CATCHWORDS: industrial dispute - transport industry - quarry operations - contract drivers - claim for fuel levy - negotiations for a new contract determination concluded - contract determination made - leave reserved on certain matters preserved LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 30/09/2008 EXTEMPORE JUDGMENT DATE : 30 September 2008 APPLICANT Richard Olsen Transport Workers' Union of New South Wales LEGAL REPRESENTATIVES: RESPONDENT Nigel Ward Boral Transport Limited DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Tuesday, 30 September, 2008 Matter No IRC 2221 of 2007 Transport Workers' Union of New South Wales and Boral Transport Limited Notification of an industrial dispute under S.332 of the Industrial Relations Act, 1996 by the Transport Workers Union of New South Wales re alleged underpayment of a fuel levy by Boral Transport Limited Application by Boral Transport Limited under S.311 of the Industrial Relations Act, 1996 for a new Boral Transport Limited Haulier Contract Determination DECISION [2008] NSWIRComm 1082 1 Pursuant to the provisions of Part 4, Dispute Resolution, of Chapter 6, Public Vehicles and Carriers [S.332] of the 1996 Industrial Relations Act, the Transport Workers Union of New South Wales lodged a notification of an industrial dispute with Boral Transport Limited, alleging that contract carriers it engages in its quarry operations under the terms of the Transport Industry - Quarried Materials and Carriers Contract Determination is not paying the fuel levy prescribed in it. The TWU asserts in its S.332 notification that: "...the company has developed its own guidelines to determine the rates of remuneration it affords its contract carriers. These guidelines result in rates of remuneration that are significantly less than those prescribed by the determination..." 2 I convened conference proceedings over the matter on Tuesday, 8 January, 2008 in terms of S.315 but adjourned those proceedings at the request of the parties until Wednesday, 20 February, 2008. The parties were to hold further discussions with a view to reaching an agreement which would take the form of a new contract determination - moving far beyond the original issue which the TWU brought forward in the S.332 notification. The matter was further mentioned on Thursday, 20 March, 2008, Monday, 21 April, 2008, Wednesday, 30 April, 2008, Tuesday, 27 May, 2008, Friday, 20 June, 2008 Wednesday, 30 July, 2008, Wednesday, 20 August, 2008 and Thursday, 4 September, 2008. Those proceedings were convened in Sydney but subsequent proceedings on Monday, 22 September, 2008 and Tuesday, 30 September, 2008 were convened in the Commission's premises at 90 Crown Street, Wollongong. 3 The parties have now reached agreement for a new contract determination - the Boral Transport Limited Haulier Contract Determination - to resolve this matter and it was convenient to make that new contract determination in the proceedings on Tuesday, 30 September, 2008 which I converted into a hearing at the request of the parties - Mr Olsen, representing the TWU and Mr Ward, representing Boral. It is a prerequisite before a contract determination is made that, by virtue of S.315, the matter be the subject of conciliation in a conference. As I indicated earlier in this decision, that S.315 conciliation conference occurred on Wednesday, 20 February, 2008. 4 There may be a certain unorthodoxy in processing a contract determination in proceedings which initially arose from a notification of an industrial dispute under S.332 by the TWU over a discrete issue - the payment of a fuel levy. The customary procedure would be for a separate application to be lodged with the Commission under S.311. But I see no reason why such an application may not be made in these S.332 proceedings. 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 I propose to make the new Boral Transport Limited Haulier Contract Determination in terms of the document Mr Ward provided in evidence in the proceedings to operate on and from Tuesday, 30 September, 2008. I note that Clause 21, Leave Reserved, of the contract determination authorises the parties to apply with respect to three matters, viz: (i) the appropriate rates prescribed for the Sydney area [Schedule 1], the South Coast region [Schedule 2] and other parts of New South Wales [Schedule 3]; (ii) living away from home arrangements; and (iii) arrangements when a trailer is unreasonably unavailable to perform cartage work due to maintenance or repair. With respect to those three issues, I will reconvene these proceedings on Friday, 31 October, 2008 (in Wollongong) to deal with those issues by conciliation or, if necessary, arbitration. 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.