TWU v Holcim (Australia) Pty Ltd [2011] NSWIRComm 1037

Industrial Relations Commission New South Wales Medium Neutral Citation: TWU v Holcim (Australia) Pty Ltd [2011] NSWIRComm 1037 Hearing dates: 7-8 April 2011 Decision date: 18 July 2011 Jurisdiction: Industrial Relations Commission Before: Macdonald C Decision: The Readymix Holdings Pty Ltd Concrete Cartage Contract Determination does not allow the respondent to require a carrier to accept the offer of a company owned truck whilst the carrier's truck is off the road being repainted at the direction of the company. Catchwords: INDUSTRIAL DISPUTE - section 130 - union claim for demurrage payment pursuant to industrial instrument - demurrage payment is a form of compensation - industrial instrument contains clause providing that company can direct contract carriers to repaint their vehicles - repainting requires vehicles to be off the road for repainting - if repainting takes longer than 7 days, company pays demurrage to carrier - company offered loan of company owned vehicle whilst carrier's truck being repainted - driver rejected offer and claimed demurrage payment as repainting took longer than 7 days - interpretation of repainting clause and industrial instrument - company could not require carrier to accept offer of company owned vehicle whilst repainting of his vehicle occurred - driver entitled to payment of demurrage Legislation Cited: Industrial Relations Act 1996 Cases Cited: Kingmill Australia Pty Ltd t/as Thrifty Car Rental v Federated Clerks Union of Australia, New South Wales Branch (2001) 106 IR 217 Category: Principal judgment Parties: Transport Workers Union of New South Wales (Applicant)

Holcim (Australia) Pty Ltd (Respondent) Representation: Ms E Larbalestier and Mr J Maslem (Applicant)