Industrial Relations Commission New South Wales Medium Neutral Citation: Veolia Environmental Services (Australia) Pty Ltd and Transport Workers Union of New South Wales [2012] NSWIRComm 1003 Hearing dates: 26, 27 September and 14 December, 2011 Decision date: 23 March 2012 Before: Macdonald C Decision: (1) Orders issued Catchwords: DISPUTE NOTIFICATION - section 332, Industrial Relations Act 1996 - dispute lodged by company against union - dispute concerned application of agreement between parties as to payment of monies to truck drivers to offset increases in costs of diesel fuel - dispute also concerned whether the price of diesel fuel purchased by the drivers from the company bowser was inclusive or exclusive of GST - conciliation unsuccessful - hearing - evidence as to initial agreement between the parties re offsetting increases in fuel costs - evidence of parties intention to reflect that initial agreement into a later industrial instrument but that intention not accurately reflected in later industrial instrument - interpretation principles - HELD: Commission concurred with company's submissions and evidence - appropriate orders as sought by the company issued. Legislation Cited: Industrial Relations Act 1996 Cases Cited: Cepus v Heggies Transport Pty Ltd (1994) 52 IR 123 Codelfa Constructions Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 Category: Principal judgment Parties: Veolia Environmental Services (Australia) Pty Ltd (Applicant) Transport Workers Union of New South Wales (Respondent) Representation: Mr J Murphy, barrister (Applicant) Mr T Gooch, Macpherson & Kelley Lawyers (Applicant) Mr S Bull, union official (Respondent) File Number(s): IRC 798 of 2011 Judgment 1A dispute notification was lodged on 3 June 2011, by Veolia Environmental Services (Australia) Pty Ltd (the applicant), per its instructing law firm, Macpherson & Kelley Lawyers (Mr T Gooch, solicitor). The dispute notification was lodged pursuant to section 332 of the Industrial Relations Act 1996 ("the Act"). The dispute notification named the other party to the dispute as the Transport Workers Union of New South Wales (the respondent/the union). 2The dispute was listed for a conference on 7 June 2011, before myself (Macdonald C). Ms R Wolstencroft (solicitor) appeared for the applicant and Ms H Sourlas (union official) appeared for the respondent. Conciliation was unsuccessful and a Certificate of Attempted Conciliation was issued by myself on 7 June 2011. The dispute was programmed for a Hearing. 3The Hearing was initially set down for two days, 26 and 27 September but an additional day was set aside (12 December 2011) in consequence of matters arising out of the September proceedings. 4At the Hearing, the applicant was represented by Mr John Murphy, barrister. Assisting Mr Murphy was Mr Tony Gooch, solicitor, Macpherson & Kelley Lawyers. Mr Murphy called one witness being Mr Colin O'Malley, Industrial Relations Manager for the applicant. 5At the Hearing, the respondent was represented by Mr Stephen Bull, union official. The respondent filed two witness statements: Helen Sourlas - union official Mark Denny - contract carrier 6Ms Sourlas was not required for cross-examination. Mr Denny is a union delegate and is engaged by the applicant as a contract carrier (sub-contractor). BACKGROUND 7The applicant (formerly Collex Pty Limited) carries on the business of commercial waste collection and removal, to and from various locations in the state of New South Wales. 8The applicant engages a number of contract carriers in its commercial waste collection and removal business in New South Wales. The contract carriers are engaged pursuant to the terms of the Veolia Environmental Services Pty Ltd NSW Carriers Agreement 2009 ("the 2009 Contract Carriers Agreement") (Ex 2, CFO 3). 9A dispute arose between the applicant and the contract carriers in relation to the application of the fuel rise and fall provisions of the 2009 Contract Carriers Agreement being those set out at clause 4.7 and Schedules B(i) and B(ii) of the 2009 Agreement. The cost of fuel is of particular relevance to contract carriers for the running of their individual businesses. This relevance takes on more significance when fuel prices rise rapidly. The fuel rise and fall provision in the 2009 Contract Carriers Agreement then becomes a focus of attention for those contract carriers. The dispute between the parties concerns the application of that fuel rise and fall provision. That is, at what point does the applicant increase/decrease the contractor's cartage rates to offset a rise/fall in the cost of fuel. 10The dispute notification set out the conflicting interpretations by the parties as to the application of the fuel rise and fall provision. 11The applicant maintains that any calculations for the purpose of the fuel rise and fall provisions of the 2009 Contract Carriers Agreement are based on the base Enfield (now Arndell Park) yard rate being a rate exclusive of GST (Goods and Services Tax). The respondent union argues that the rise and fall provisions should be based on the yard rate plus GST. 12The applicant maintains that the proper application of the fuel rise and fall provisions under the 2009 Contract Carriers Agreement is that in the event that a contract carrier's fuel costs increase more than 20 cents a litre based on the average fuel price over the previous quarter, then the contract carriers would be entitled to a 2% increase in the contract carriers rate of pay payable at the beginning of the immediately following quarter. The respondent maintains that any resultant lift in fuel costs each quarter should give rise to a 2% increase. Thus a one cent rise in the average fuel price in a quarter, over the previous quarter, would justify a 2% increase in the carriers rate of pay. 13The respondent maintains that the benchmark for measuring fuel cost increases/decreases should be the average fuel price provided by the Australian Institute of Petroleum. The applicant maintains that as per the 2009 Contract Carriers Agreement, the relevant benchmark is the yard fuel price. FINAL SUBMISSIONS For the applicant company 14Mr Murphy, barrister, on behalf of the applicant company tendered written final submissions (Ex 12). Mr Murphy addressed those written submissions. He said there are essentially two matters in dispute: (a) The "increase points" in the price of diesel fuel which trigger the payment of a 2% increase in rates to the contract carriers. (b) Whether the price of diesel fuel which triggers the 2% increase in rates is exclusive or inclusive of GST. 15As to the "increase points", Mr Murphy set out the negotiations surrounding the company and union agreeing to a rise and fall formula for cost increases or decreases for fuel, with a corresponding increase or decrease in carriers cartage rates to reflect the rise and fall in fuel costs. That agreed formula is known as the 2008 Agreement. Mr Murphy advised that the 2008 Agreement had "increase points" in the price of diesel fuel, which "increase points" triggered the payment of a 2% increase in rates paid to the carriers. Similarly, the "increase points" could be a trigger for a cartage rate reduction if diesel fuel prices fall. 16Mr Murphy stated that the above 2008 Agreement was incorporated into the 2009 Contract Carriers Agreement. That, he said, was the intention of the parties. However, a particular document which became Schedule B(i) to the 2009 Contract Carriers Agreement was not the document (a spreadsheet) which was agreed to and signed by the parties in 2008. The origin of this other document (being Schedule B(i) in the 2009 Contract Carriers Agreement) was not clear. 17The union/respondent, it was submitted, put an interpretation on this Schedule B(i) document which is inconsistent to the operation of the 2008 rise and fall formula and the intention of the parties to incorporate that 2008 formula application into the 2009 Contract Carriers Agreement. 18The applicant/company does not accept the union's interpretation. Despite that, the company has applied the 2009 rise and fall formula in a way more favourable to the carriers than the 2008 Agreement and the 2009 Contract Carriers Agreement intended. That is, the carriers obtain an increase in cartage rates at a point in the rise in fuel costs, being a point that would not otherwise justify that cartage rate increase. 19In assessing the evidence about the rise and fall formula and its history, Mr Murphy called into question the reliability of the evidence given by one of the union negotiators (Mr Denny) and asked the Commission to reject that evidence wherever it conflicted with the evidence of the company. 20On the second matter, Mr Murphy said that the preponderance of the evidence supported the conclusion that the "increase point", is exclusive of GST. For the respondent union 21Mr Bull, union official, tendered written final submissions (Ex 13). Mr Bull addressed those written submissions. 22Mr Bull submitted that the approach of the Commission to interpreting the Schedule B(i) document, contained in the 2009 Contract Carriers Agreement, was to follow the approach set down by Mason J (as he then was) in Codelfa Constructions Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 352. Thus, if the language of Schedule B(i) of the 2009 Contract Carriers Agreement was plain on its face, then no regard need be had for the surrounding circumstances going to the creation of that document. The Commission was also referred to comments of the Full Court of the Industrial Court of NSW in Cepus v Heggies Transport Pty Ltd (1994) 52 IR 123 at 127, in respect to award interpretation principles. 23As to the "increase points" (called "trigger points" by the union), Mr Bull submitted that the applicant company was confused in how the "increase points" operated. 24Schedule B(i) of the 2009 Contract Carriers Agreement was clear on its face. It required a 2% increase in cartage rates if the average fuel price increased by one cent in a quarter, as against the average fuel price for the previous quarter. 25Mr Bull submitted that the benchmark for measuring average quarterly increases in fuel costs, was the $1.05 mark (and not $1.25 as contended by the applicant company). 26Mr Bull also submitted on the second issue, that the price of fuel includes GST. CONSIDERATION 27The applicant company filed a dispute notification, seeking the assistance of the Commission in respect of two matters in dispute with the respondent union. Those two matters go to the interpretation of the fuel rise and fall clause contained in the 2009 Contract Carriers Agreement and whether the cost of that fuel (diesel) is a cost inclusive or exclusive of GST. Before dealing with all of the evidence surrounding those two matters, the Commission will set out below the relevant history as to the fuel rise and fall provision. Relevant History of Rise/Fall Provision 28Rises and falls in carriers costs (including but not limited to fuel), were dealt with under the Collex Pty Limited Enfield Carrier's Agreement 2005 (the 2005 Contract Carriers Agreement). (Ex 2, Annex CFO 4) Clause 4.6 of that agreement stated the following as to carrier's costs: "Should significant and prolonged cost variations (eg fuel) occur between the annual cartage rate reviews then an interim rate review will be conducted by the parties...." 29Mr O'Malley's witness statement deposed that the foregoing clause 4.6 created uncertainty and led to ongoing disputation as there was no definition of what was or was not a "significant and prolonged" cost variation. (Ex 2, para 16) 30Mr O'Malley's witness statement then deposed as to the issue of fuel (one of the cost factors) coming into sharp focus for the carriers because the cost of fuel increased rapidly. 31The applicant (now Veolia and not Collex) put forward a proposal to address spikes in fuel prices. Agreement was reached between the applicant and the union on that proposal which is reflected in a signed document, being a letter dated 11 August 2008 and having an accompanying spreadsheet. (Ex 2, Annex CFO 7) During the hearing before myself, this two page document was referred to as the 2008 Agreement. 32The letter of 11 August 2008 stated, inter alia, that: "Should fuel costs increase more than 20 cents a litre (averaged over the Quarter Dec-March April - June July - Sept) contractors will be entitled to a 2% increase expressed as a separate payment added to their invoice before deductions." 33The letter also stated that the accompanying spreadsheet that set out an agreed formula for compensating fuel increases, "will be used in any further claims that may arise out of clause 4.6 (of the 2005 Contract Carriers Agreement)". 34The 11 August 2008 letter is silent on the issue of GST. 35The 11 August 2008 letter is signed by an applicant representative and four representatives for the union. One of these union signatories is Mr Mark Denny who gave evidence before the Commission. Although Mr O'Malley's signature does not appear, he deposed to being present at a meeting in August 2008 in which the applicant's proposal for a formula was discussed. He named the other persons present at this meeting and they are the five signatories to the 11 August 2008 letter. (Ex 2, para 19) Mr Denny deposed that Mr O'Malley had no involvement in the 2008 Agreement negotiations. (Ex 5, para 9) 36Although the 2008 Agreement documentation speaks of a remuneration formula for rises in the cost of fuel, the parties agreed that it was not a rise only formula but a rise and fall formula. Thus, carriers would have a 2% reduction in the rebate for fuel costs, if the price of fuel fell. 37Mr O'Malley and Mr Denny depose that the 2008 Agreement was incorporated into the 2009 Contract Carriers Agreement that replaced the 2005 Contract Carriers Agreement. (Ex 2, para 24 and Ex 5, para 35 respectively). Industrial Instrument Interpretation 38Both parties referred to case law on the approach to interpretation of industrial instruments. Before applying that case law, an issue needs to be determined as to the extent of that case law application. Thus, Mr Murphy submitted that the case law on interpretation needed to be applied to the issue of the rise and fall provision. However, Mr Bull for the union argued to the contrary. He submitted that the rise and fall provision in the 2009 Contract Carriers Agreement was clear on its face as to its meaning and therefore the case law on the principles of interpretation did not apply. 39The Commission does not agree that the rise and fall provision in the 2009 Contract Carriers Agreement is clear on its face. The Commission adopts the submission of Mr Murphy in that regard (Ex 12, paras 5 to 13), as set out below. 40The starting point for demonstrating that the rise and fall provision in the 2009 Contract Carriers Agreement is not clear on its face, is clause 4.7. Clause 4.7 advises relevantly, that any interim fuel variations will be as per the attachments, Schedules B(ii) and B(i). 41Schedule B(ii) is a document dated 11 August 2008. It is one of the two pages of documentation comprising the 2008 Agreement. In the opening paragraph, it refers to "the attached spreadsheet (which) is the full and final settlement to all outstanding claims that may arise out of Clause 4.6 and 4.7 of the Collex Pty Ltd Enfield Carriers Agreement of 2005". This opening paragraph is referring to past history and not the 2009 Contract Carriers Agreement to which it is attached. Putting aside that observation for the moment, the other relevant observation is the reference to the "attached spreadsheet". 42The attached spreadsheet is Schedule B(i). But this document is not the same spreadsheet that was attached to the original 2008 Agreement. (Ex 2, CFO 7) That represents a confusion and one with pecuniary ramification. 43The original spreadsheet from the 2008 Agreement explained (in conjunction with Schedule B(ii)), that if fuel prices rose by increments of 0.20 cents above a base rate of $1.05, then the company would increase the cartage rate for the contract carriers. The original spreadsheet (not given the designation of Schedule B(i) - although that was the intent), sets out a table showing at what "trigger points" or "increase points", the contract carriers would get a rise (or fall) in cartage rates for rise (or fall) in fuel costs. Those trigger points are stated as: $1.25, $1.45, $1.65.... up to $2.45. The spreadsheet attached to the 2009 Contract Carriers Agreement (designated Schedule B(i)), sets out the same table of trigger points but then gives an example of the operation of the trigger points at odds with the table. Thus, the example states that the first trigger point is $1.16 (and not $1.25 as set out in the table). The second trigger point given in the example is $1.39. That figure is not only at odds with the trigger point of $1.45 set out in the table, but does not in itself make sense. This is so, based on the incremental factor of $0.20 for establishing each trigger point. So, if the first trigger point is $1.16, then the next trigger point should be $1.36 (and not $1.39). 44For the above reasoning, the Commission finds that the two documents, Schedules B(i) and B(ii) of the 2009 Contract Carriers Agreement are not clear on their face as to their meaning, and accordingly resort to interpretation, as put by Mr Murphy, is required. Both parties referred the Commission to the same case law for the principles of interpretation to be applied to the facts before myself: Cepus v Heggies Transport Pty Ltd. That is, the Commission was to have regard to the intention of the parties. Issue: The Rise and Fall Provision 45The Commission reiterates its adoption of the submission of Mr Murphy on the application of the rise and fall provision. 46The key factor on that application is the intention of the parties. The history set out above, shows that the parties came to an agreement on the application of the rise and fall provision. That agreement was reflected in the 2008 Agreement which comprised two documents: Schedule B(ii) being the letter of 11 August 2008 and its accompanying spreadsheet (not given a designation but appears it should have been designated as B(i)). (Ex 2, CFO 7) 47Both witnesses, O'Malley and Denny, deposed that the 2008 Agreement was incorporated into the 2009 Contract Carriers Agreement. (Ex 2, para 24 and Ex 5, para 35, respectively). That is, both witnesses deposed it was the intention of the parties to incorporate that 2008 Agreement into the 2009 Contract Carriers Agreement. During proceedings, Mr Denny shifted his position as to the incorporation of the 2008 Agreement. The Commission understood his evidence in the witness box to be that some or all of the terms of the 2008 Agreement had not been incorporated into the 2009 Contract Carriers Agreement. 48Mr Murphy's written submissions deal with this shifting position of Mr Denny under the heading of "Credit of Mark Denny". (Ex 12, paras 25 to 36) 49Mr Murphy's submission on the internally inconsistent and self contradictory evidence of Mr Denny is extensive with exhibit and transcript references. 50The union's written submissions is silent on this issue of Mr Denny's credit, even though the union and the Commission were put on notice by Mr Murphy that this would be an issue for final submissions. He gave that notification on 27 September 2011 following his cross-examination of Mr Denny. Final submissions did not take place until 14 December 2011, being ample time for the union to prepare a rebuttal of the credit issues which had been clearly articulated during Mr Murphy's cross-examination of Mr Denny. 51The position taken by the union in final submissions on 14 December 2011, was to the affect that the credit of Mr Denny was not an issue for the Commission's consideration, because the 2009 Contract Carriers Agreement was clear on its face and therefore the intention of the parties and Mr Denny's criticised oral evidence about intention was not before the Commission for its consideration. The problem with that submission is that the Commission has held that the 2009 Contract Carriers Agreement was not clear on its face. Accordingly, the Commission has had to consider the evidence (written and oral) of Mr Denny as to the intention of the parties. 52The Commission adopts the written submission of Mr Murphy on the issue of Mr Denny's credit and holds that where his evidence conflicts with that of the evidence by the company, then the Commission prefers the evidence of the company. 53Having made that finding, the Commission sets out below its finding as to the application of the rise and fall fuel provisions. 54There is no dispute that the parties reached an agreement as to the application of a rise and fall fuel provision in August 2008. That 2008 Agreement established a base rate of $1.05 for fuel and set in place trigger points at twenty cent intervals based on the starting base rate of $1.05. Thus, if fuel prices rose to $1.25 ($1.05 plus $0.20), then the company increased cartage rates by 2% in order to offset the hike in fuel costs to the drivers. The next trigger point was $1.45 ($1.25 plus $0.20) and then $1.65, $1.85, $2.05, $2.25 and $2.45. 55The parties agreed that the above formula from the 2008 Agreement would be incorporated into the 2009 Contract Carriers Agreement. 56The incorporation process did take place. Thus the document, Schedule B(ii), being the letter dated 11 August 2008, made its way into the 2009 Contract Carriers Agreement. The other document making up the 2008 Agreement, and being the spreadsheet, was not per se incorporated. Instead a different (but not totally different) spreadsheet was substituted. It is designated as Schedule B(i) in the 2009 Contract Carriers Agreement. 57Schedule B(i), the spreadsheet, still, importantly, duplicates the original spreadsheet of August 2008 by (a) referring to a Base Enfield Yard rate of $1.05 and (b) setting out the table of trigger points from $1.25 up to $2.45 - at twenty cent intervals. This document, as explained so far, duplicates the intended incorporation of the rise and fall formula of the 2008 Agreement. 58Where this document is at variance with the spreadsheet contained in the 2008 Agreement, is in the example given in the document of when the trigger points are activated. This document states that the first trigger point is activated at $1.16 (instead of $1.25). The table of trigger points immediately above the example, duplicate the trigger points of $1.25, $1.45 etc. shown in the 2008 Agreement. 59The author of Schedule B(i) (and hence this erroneous example) to the 2009 Contract Carriers Agreement, was not identified. Mr Murphy advised the Commission that, even though this example of $1.16 and $1.39 as trigger points, was wrong, the company had honoured these erroneous examples and was using the $1.16 and $1.39 as the trigger points for paying 2% as increased cartage rates to offset increases in fuel prices. 60The Commission has also concluded from the evidence that the base rate for operating the rise and fall formula is $1.05. 61The Commission adopts the written submissions of Mr Murphy on the explanation of the operation of the rise an fall provision from its inception under the 2008 Agreement to the present arrangement contained in the 2009 Contract Carriers Agreement (including the erroneous examples which the company is honouring). 62The Commission rejects the union's submission that an increase in the fuel price of less than $0.20, (including a mere one cent rise in fuel price), means that, under the rise and fall formula, the company should pay a 2% increase in cartage rates to the drivers. The payment of 2% to the drivers for a rise of one cent, five cents, or thirteen cents in fuel prices, is entirely inconsistent with what the drivers have accepted in the past as constituting a trigger for an increase in cartage rates under the 2008 Agreement. Such a payment for increases in fuel costs of less than twenty cents has not happened under the 2008 Agreement. Issue: Inclusive or Exclusive of G.S.T. 63The other issue for consideration is whether the drivers pay for fuel, at the company's fuel bowser, at a price inclusive or exclusive of G.S.T. The union submitted that the carriers did so and therefore this would have an impact, favourable to the carriers, on the trigger points. That is, the trigger points would be triggered more often and the carriers would gain the benefit of more 2% increases in their cartage rates, than would happen if the fuel price was exclusive of G.S.T. 64The union's final written submissions argued that the price of fuel bought by the carriers, at the company's bowser, included G.S.T (Goods and Services Tax). The written submissions included a transcript extract from the union's cross-examination of the company witness (O'Malley) wherein Mr O'Malley agreed that the company purchased its bulk fuel from Caltex at a price which included G.S.T. (Ex 13, paras 11 to 20). 65Mr Murphy, barrister for the company, conceded in final submissions that the carriers purchased fuel from the company's bowser and that that price includes G.S.T. (Tr 14/12/11 - p40, line 23 to 28) 66It seems then that the union's argument that the price of fuel at the company's bowser includes G.S.T. and therefore the trigger points should be impacted to the benefit of the carriers. However, when Mr Murphy made that concession, he made an important clarification about the operation of the G.S.T. component for the carriers who are business persons. 67When the company buys the fuel off Caltex, the company pays for the cost of the fuel (the wholesale price) and also pays G.S.T. on that wholesale price. Although it may be a subtle point from the carriers point of view, it is important to characterise the G.S.T. as just that - it is a tax by name and is not designated as a cost. Taxpayers do not pay costs to the Australian Taxation Office. Rather, taxpayers pay taxes. 68When the company sells the fuel at the bowser to carriers, it does so at the same price the company paid Caltex - wholesale price plus G.S.T. 69Mr Murphy then stated in final submissions, without challenge from the union, that the G.S.T. component paid by the carrier is claimed back by the carrier from the Australian Taxation Office. The carrier is able to claim the G.S.T. component back (as a rebate) because he/she is operating a business. If someone wants to describe the G.S.T. component as a cost, to the carrier, then that cost component is negated, wiped out, by the tax rebate system. 70In summary, it can be seen that there is a G.S.T. component included in the price of the fuel sold to the carrier, but that G.S.T. component is then negated (as a "cost" to the carrier) by the tax rebate system. In turn that means that the carrier is not bearing the "cost" of the G.S.T. component when buying the fuel from the company bowser and therefore it would be unfair to include the G.S.T. component as a factor to be included in the operation of the rise and fall fuel formula. CONCLUSION 71The company filed a dispute notification which set out two issues in dispute between it and the union. 72Having considered all of the evidence, the Commission has firstly, concurred with the company's written and oral submissions and evidence as to the correct application of the rise and fall fuel provision. That correct application includes the company applying, to its credit, erroneous examples ($1.16 and $1.39) of the trigger points for the company paying the carriers an increase in the cartage rates. Those two rates are erroneous in that the parties agreed to incorporate the 2008 Agreement and that Agreement stipulated trigger points of $1.25 (not $1.16) and $1.45 (not $1.39). The company's honouring of these erroneous examples has been to the benefit of the carriers. 73Secondly, as to the inclusion or otherwise of G.S.T. in the price of fuel to the carriers, the Commission has acknowledged the company's concession that the price of fuel sold to the carriers includes a G.S.T. component but this alleged G.S.T. cost to the carriers is negated by their ability as business persons to make a tax rebate claim for that G.S.T. component. As such, the G.S.T. does not operate as a "cost" to the carriers and therefore they have no basis for submitting that the trigger points for the 2% fuel payment, should include that G.S.T. component. 74The Commission rejects the Union's claim that a rise in the price of fuel (over a quarterly period) within a $0.20 band, means that the company is to pay a 2% increase in the cartage rates to the drivers. For there to be a 2% increase paid by the applicant/company, there needs to be a rise in fuel costs to the extent that a trigger point is activated for the payment of the 2%. 75The company provided a document to the Commission being the Orders that it sought to be adopted by the Commission in the event that its oral and written submissions and evidence held sway over the union's case. The Commission will issue the Order as sought by the company. ORDERS 76The Industrial Relations Commission of New South Wales has determined the interpretation of clause 4.7 and Schedules B(i) and B(ii) of the Veolia Environmental Services Pty Ltd NSW Carriers Agreement 2009 in respect of interim fuel variations is as follows: 1. (a) the Base Enfield yard rate price of diesel fuel is $1.05 per litre (exclusive of GST). (b) the benchmark fuel price for the purposes of application of the rise and fall formula will be the wholesale fuel price (exclusive of GST) of fuel supplied to contract carriers at the Enfield (now Arndell Park) Depot. (c) the fuel rise and fall formula will be applied at the beginning of each quarter based on the average fuel price for the previous quarter. (d) the first fuel price increase point at which a 2% increase in contract carriers rates is payable is $1.16 per litre (exclusive of GST) (e) thereafter 2% increases in contract carriers rates are payable for each increase in the price of fuel of 20 cents per litre above $1.16 per litre (exclusive of GST). To avoid doubt, the second 2% increase in rates is payable when the price of fuel reaches $1.36 per litre (exclusive of GST). The third 2% increase in rates is payable when the price of fuel reaches $1.56 per litre (exclusive of GST). (f) increases in rates pursuant to the rise and fall formula may be paid as a direct rate adjustment or as a separate payment added to contract carriers invoices before deductions. (g) the same trigger points will apply in the event of decreases in fuel prices. 2. The parties are to confer as to the interpretation set out in order 1 as applied to all movements in the benchmark fuel price since the operative date of the Veolia Environmental Services Pty Ltd NSW Carriers Agreement 2009 and after taking into account all payments made by the Company by way of interim fuel variations over that same period. 3. In the event that, following such conferences, either party seeks any further assistance from the Commission the matter can be relisted at short notice. 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. Decision last updated: 23 March 2012