Industrial Relations Commission New South Wales Medium Neutral Citation: TWU and McColls Transport Pty Ltd [2012] NSWIRComm 1026 Hearing dates: 20 August, 2012 Decision date: 07 December 2012 Before: Macdonald C Decision: Respondent required to pay Grade 8 rate of pay to drivers of B Double and semi-trailer vehicles Catchwords: INDUSTRIAL DISPUTE - section 146B of Industrial Relations Act 1996 - truck drivers paid particular graded rate regardless of driving B-Double truck or semi-trailer - particular rate (Grade 8) paid over years - Respondent carried out national payroll audit - Respondent said payment of Grade 8 to all drivers was a mistake - differing graded payments then applied by Respondent - TWU notified dispute - conciliation - Hearing - evidence about payment of Grade 8 to new and promoted drivers - interpretation of 2007 and 2011 Agreements - custom and practice. HELD: the 2007 and 2011 Agreements interpreted to require Respondent to pay Grade 8 rate of pay to drivers of B-Double and semi-trailer vehicles - Order sought by TWU granted. Legislation Cited: Industrial Relations Act 1996 Cases Cited: Australian Municipal, Administrative, Clerical & Services Union v Treasurer (Cth) (1998) 80 IR 345 Short v FW Hercus Pty Ltd (1993) 46 IR 128 Category: Principal judgment Parties: Transport Workers Union of Australia, New South Wales Branch (applicant) McColls Transport Pty Ltd (respondent) Representation: Mr T Warnes - Transport Workers Union of Australia - NSW Branch Ms A DeBoos - Middletons File Number(s): IRC 111 of 11 DECISION 1The Transport Workers Union of Australia - NSW Branch (the TWU) filed a dispute notification pursuant to section 146B of the Industrial Relations Act 1996 ("the Act"). The dispute notification was lodged on 10 February 2011 and named McColls Transport Pty Ltd as the Respondent to the dispute. 2The dispute notification was listed before myself (Macdonald C) for either a Compulsory Conference or Report Back on the following occasions: 15 February, 2 March, 16 March, 15 April, 12 May, 9 June and 25 August 2011. On the latter date a program for the filing of evidentiary material was put in place. 3The TWU did not file its opening evidentiary material by the required date. A revised filing program was suggested by the Respondent's legal representative (Clayton Utz). Subsequent revisions of the filing program eventually saw the filing of material for both parties. 4By notification of 25 June 2012, issued out of my office, the dispute notification was set down for a two day Hearing on 20 and 21 August 2012. 5On 7 August 2012, my office was advised of a change in legal representation for the Respondent. Ms A DeBoos of Middletons now appeared (in lieu of the law firm, Clayton Utz). 6At the Hearing, the TWU was represented by Mr T Warnes, assisted by Mr Nyols: both union officials. The following witnesses (who also filed witness statements) for the TWU were not required for cross-examination: Paul Smith - truck driver Leigh Foster - truck driver Jason Russo - truck driver Peter Sterland - truck driver Matthew Russell - truck driver Scott Maxwell - truck driver David Travers - truck driver All of the foregoing witnesses are engaged by the Respondent. 7At the Hearing, the Respondent was represented by Ms A DeBoos, solicitor who was assisted by Mr Matthew Purcell (Operations Manager, Altona, of the Respondent). Mr Purcell filed a witness statement but was not required for cross-examination. Ms DeBoos called the following witnesses: Sharon Dyke (formerly Sharon West) - Human Resources Manager Justin Keast - General Manager, Bulk Chemicals Division Rod McGuiness - Operations Manager, Preston 8The Hearing took place on one day only: 20 August 2012. BACKGROUND 9The TWU dispute notification advised that the dispute concerned all employee drivers of the Respondent, operating in New South Wales, under the Pure Logistics Pty Ltd Union Collective Agreement, NSW Operations (the 2007 Agreement). 10The dispute notification listed the grounds for the dispute as follows: (a)Approximately eight (8) years ago, the Respondent stated to employees that it would pay drivers a Grade 8 wage if the drivers acquired a Multi-Combination Licence (MC Licence). (An MC Licence enables drivers to drive a B-Double vehicle). (b)The drivers acquired MC Licences and were paid Grade 8 wages and this continued for eight (8) years, up until 2010. (c)In 2010, the Respondent made a unilateral decision to alter the remuneration of the drivers and only pay the Grade 8 if the drivers actually drove B-Double vehicles. Otherwise, the drivers were only paid the Grade 7 rate if driving semi-trailers. (d)This unilateral decision caused a dramatic change in the driver's income as they were previously paid at Grade 8 for all occasions. FINAL SUBMISSIONS For the TWU 11Mr Warnes of the TWU spoke to its filed Submissions (Ex 12 & 13) and made the following points: (a) There are a number of truck drivers entitled to be paid at the Grade 8 B-Double rate for B-Double work and lesser duties. (b) The Respondent unilaterally changed the remuneration structure set out in (a) above, in October 2010. The rate for B-Double work (two trailers) at October 2010 was $20.99 per hour and $19.81 per hour for single trailer work. (c) The reason why the drivers were paid at Grade 8 rates of pay was because of representations made by the Respondent to the drivers at the time of their hiring or promotion. The representation was that the Grade 8 rate would apply irrespective of whether driving a B-Double or single trailer. (d) The representation meant that a truck driver was appointed to Grade 8 which is consistent with the requirements of Clause 2 of the 2007 Agreement which refers to "employees appointed to this grade". (e) The practice of paying the Grade 8 rate of pay had become a Custom and Practice: NSW Nurses' Assoc. & Ors and S.W. Syd. Area Health Service [1994] NSWIRComm 147 (8 December 1994) (f) The majority of the work done by the drivers is Grade 8. (g) Orders were sought that the Respondent be paid at the Grade 8 rate of pay for B-Double work and lesser duties. For the Respondent 12Ms DeBoos spoke to the filed Submissions of the Respondent (Ex 14) and made the following points: (a) Mr Rob McGuiness (NSW Operations Manager of the Respondent) and the drivers had an understanding that the drivers were to be paid the Grade 8 rate of pay. That understanding was an incorrect one. (b) That mistaken understanding meant that the drivers were paid the Grade 8 rate, for a period commencing in or around 2007 until 17 October 2010, regardless of the duties that drivers undertook. (c) There is no entitlement under the 2007 Agreement to be paid the Grade 8 rate, regardless of the duties performed. (d) The previous payment of the Grade 8 rates, regardless of duties performed, was a mistake by lower management. (e) If any entitlement to a Grade 8 rate existed (regardless of duties performed), that entitlement was extinguished following the making of the 2011 Agreement by Fair Work Australia: McColls' Group Holdings Pty Ltd NSW Collective Agreement Bulk Food and Bulk Chemical 2011-2014 (the 2011 Agreement). (f) The Respondent's evidence discloses that the Parties did not intend that the 2007 Agreement would give rise to the payment of the Grade 8 rate, regardless of the duties performed. (g) The Respondent's evidence (Dyke and Keast) discloses that during negotiations for the 2007 and 2011 Agreements, the TWU unsuccessfully attempted to include a clause that all new and existing drivers be paid the Grade 8 rate, regardless of the duties performed. The foregoing attempt by the TWU was evidence that the Parties did not intend that the 2007 and 2011 Agreements would give rise to an entitlement for drivers to be paid the Grade 8 rate, regardless of the duties performed. Further, the TWU was on notice per the foregoing negotiations for the 2007 and 2011 Agreements, that any payment of the Grade 8 rate, regardless of the duties performed, was a mistake by the Respondent and which mistake was swiftly corrected when discovered through a payroll audit. (h) In addition to the evidence relating to the formation of the 2007 Agreement, the application of the principles of interpretation to the 2007 Agreement do not give rise to an entitlement to a Grade 8 rate, regardless of duties performed. (i) The 2007 Agreement must be interpreted to give effect to the fact that the Respondent's business is premised on the ability to provide a range of trucking services including B-Double and single trailer trucks. A truck driver cannot be said to have been "appointed" to a grade (such as Grade 8) because in the trucking industry, drivers are called upon to perform a variety of driving tasks which require different licences and varying degrees of skill. (j) It does not make for "business common sense" for the Respondent to be paying the Grade 8 rate to a driver who is driving a semi-trailer (Grade 6 rate) and for which semi-trailer work the Respondent can only claim single trailer payments from customers. The interpretation of the 2007 Agreement must be guided by "business common sense". (k) Apart from the payment of a Grade 8 rate being paid (regardless of duties performed) as a result of a mistaken representation by "lower level Managers", that mistake was extinguished by the making of the 2011 Agreement or before then, by the operation of the "No Extra Claims" clause in the 2007 Agreement. As to the latter point, the TWU claim for all drivers to be paid the Grade 8 rate (regardless of the duties performed) is a separate and extra claim to the 2007 Agreement and is precluded by the "No Extra Claims" Clause. (l) The TWU's submission that a custom and practice exists for the continued payment of the Grade 8 rate was rejected. Caselaw was relied upon that the TWU had not produced the evidence to establish custom and practice - that is, that the payment of the Grade 8 rate was so well known and acquiesced in that the parties could have reasonably been presumed to have imported that term into the contract. The evidence was the upper management of the Respondent and all other national centres were not only unaware of the payment of the Grade 8 rate (regardless of duties performed) but opposed to it as well. At best, there may have been a practice of paying the Grade 8 rate but that practice did not become an incorporated condition of employment. CONSIDERATION Background 13The Respondent is a national transport operator with locations in New South Wales, Victoria, Queensland and South Australia. Its primary operations involve bulk transfer of liquids including milk, fuel and dangerous chemicals. 14The cartage of bulk liquids is carried out by drivers holding either a Heavy Combination Licence (HC Licence) or a Multi Combination Licence (MC Licence). During proceedings there was also reference to a Dangerous Goods Licence (DG Licence) but this type of licence was not an issue in the proceedings. 15The Respondent's operations has two types of cartage vehicles: single-trailer and B-Double. 16A HC Licence is required for driving a single-trailer. An MC Licence is required for driving a B-Double. In the scheme of things, an MC Licence rates higher than a HC Licence. This is reflected in the collective agreement governing the terms and conditions of drivers. An MC Licence is required for driving B-Doubles (Grade 8). A HC Licence is required for driving semi-trailers (Grade 6). The Grade 8/MC Licence driver driving a B-Double truck attracts a higher remuneration level than a Grade 6/HC Licence driver driving a semi-trailer. 17Two industrial instruments were referred to in the proceedings: the 2007 Agreement and the 2011 Agreement. The latter agreement was approved by Fair Work Australia on 24 August 2011. The Issue for Consideration 18The issue between the parties was the remuneration level to be paid to a driver who held an MC Licence but who was driving a semi-trailer for which only a HC Licence is required. 19The TWU said that a driver who held an MC Licence was to be paid the Grade 8 rate of pay irrespective of whether driving a B-Double (for which an MC Licence is required) or a semi-trailer. This was called in proceedings, the uniform rate of pay. The TWU's submission was based on: a reading of the industrial instruments and which was, the TWU said, supported by the affidavits of the several driver witnesses. In the alternate, the TWU said that the payment of a uniform rate for MC Licence holders driving a B-Double or a semi-trailer had come about by custom and practice. 20The Respondent opposed the TWU claim. The payment of a uniform rate for some three years was due to a local (New South Wales) management error. This error was at odds with the Respondent's remuneration policy in other localities. 21The TWU's reliance upon a reading of the industrial instrument was disputed. Reliance therefore had to be had on the extrinsic material surrounding the making of those industrial instruments and such extrinsic material supported the Respondent's case. 22The Respondent said that the TWU had not made out a case for custom and practice. Principles of Interpretation 23The TWU referred to a dictionary definition to assist its case that the two industrial instruments meant that uniform rates of pay (Grade 8) were applicable to Grade 8/MC Licence holders whether driving a B-Double or a semi-trailer. 24The Respondent referred to cases on interpretation and that the Commission should, in effect, take a broad interpretative approach that encompassed the consideration of extrinsic material (the evidence as to the negotiations that preceded the making of the industrial instruments). 25One of the cases relied upon by the Respondent to support that broad interpretative approach was set out in the Respondent's Outline of Submissions. (Ex 14, para 21) The relevant extracts are set out below: "21. As stated by Marshall J in Australian Municipal, Administrative, Clerical & Services Union v Treasurer (Cth) (1998) 82 FCR 175; 80 IR 345: the court or tribunal's recourse to extrinsic material in the interpretation of industrial instruments is not dependent upon the existence of ambiguity in the industrial instrument. 22. Accordingly, evidence arising from the negotiations of the 2007 and 2011 Agreements is relevant and admissible in establishing the intention of the parties in drafting the 2007 and 2011 Agreements." 26On my reading of Marshall J's Decision, I am unable to locate that quoted extract. Marshall J deals with the interpretative approach issue under the heading: "Extrinsic material and award interpretation" (1998) 82 FCR 175 at 177. Under that heading, is a discussion on whether a court can have regard to extrinsic material when interpreting an award. 27Marshall J supports the interpretative approach of Burchett J, a member of a Full Court of the Federal Court of Australia: Short v FW Hercus Pty Ltd (1993) 46 IR 128. Burchett J said as follows (at pg 134): "The context of an expression may thus be much more than the words that are its immediate neighbours. Context may extend to the entire document of which it is a part, or to other documents with which there is an association. Context may also include, in some cases, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted, it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its former significance, standing bare in alien ground. True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used". 28The above extract of Burchett J, and the reading of his judgement as a whole, shows that in interpreting an award provision, the court can have regard to "the history of the provision". (pg 133) That is, the interpretation is restricted to looking at the history of the award provision, in order to understand its context. Burchett J's decision does not, on my reading, stand for the proposition that all extrinsic material (for example, the negotiations) can be considered when interpreting an award provision. 29The Commission's approach then in interpreting the industrial instruments if to consider firstly whether the instruments are clear on their face. That approach includes looking at the context of a disputed clause (as to its interpretation) against the rest of the industrial instrument in which the disputed clause appears and looking at the history of the clause. 30No party took the Commission to a history of the disputed clause in the 2007 Agreement, in order to understand its context. The Commission will now look at the context of the disputed clause against the whole industrial instrument. 31The 2007 Agreement and 2011 Agreement are attached to the affidavit of Ms Dyke: Ex 8, Annexure B and E respectively. 32The 2007 Agreement has three Schedules listed on the contents page as Schedule A, B and B. The last entry presumably should read "C". That last Schedule is the Transport Industry (State) Award. The Interpretation of the 2007 Agreement 33The TWU contends that a uniform rate should be applied to a holder of an MC Licence regardless of the type of vehicle being driven. That is, the Grade 8 rate that applies to a driver who is driving a B-Double vehicle also applies when driving a semi-trailer. 34The Respondent contends that when an MC Licence holder is driving a B Double then he/she is paid the Grade 8 rate of pay. But when the same driver is driving a semi-trailer then he/she is paid the lesser rate of Grade 6. This means that in any given week an MC Licence holder could have two days pay at Grade 8 and three days pay at Grade 6 ("a mixed duties" contention). 35The TWU submits that its interpretation of a uniform rate is correct having regard to a reading of the disputed clause: "Clause 2. Classifications Of A Transport Driver". That clause lists eight (8) grades and each grade is prefaced by the same wording; "Employees appointed to this grade can be required to perform any of the following functions for which they have been trained:" 36The TWU contended that the phrase, "Employees appointed to this grade..." meant that each driver was graded, pursuant to an award provision. Having been appointed to a grade, then the rate of pay for that grade applied - no matter what type of vehicle was driven. The TWU also supported that contention by reference to a dictionary meaning of "appointed". 37Having reviewed the evidence and submissions, the Commission concludes that a reading of clause 2 is clear on its face. There is no ambiguity. The context of Clause 2 supports a conclusion in favour of the TWU's contention of a uniform rate of pay of Grade 8 for holders of MC Licences (who are required by the Respondent to utilise that MC Licence) regardless of the type of vehicle driven. My reasoning is set out below. 38Clause 2 requires the Respondent to grade each driver. Schedule A gives the rate for each grade, one through to eight. There is no ambiguity about this requirement. Grading of a driver is a legal necessity arising out of the 2007 industrial instrument. 39Clause 2 does not support the Respondent's "mixed duties" contention. Clause 2 does not provide for a different grade classification (and hence rate of pay) depending on the type of vehicle being driven on a given day. There is no "Mixed Functions" clause in the 2007 Agreement. That is, no clause supporting the Respondent's claim that a different rate of pay applies depending on the type of vehicle driven. 40Context also supports the TWU's submission that a driver, graded at Grade 8, is paid the Grade 8 rate regardless of the type of vehicle driven. The context is not the history of Clause 2 but rather the context of Clause 2 in consideration of the content of the 2007 Agreement. That context is not restricted to the 2007 Agreement. Clause 27 of the 2007 Agreement is headed "AWARDS". Claus 27.1 provides that Schedule C is included and forms part of the 2007 Agreement except for certain clauses which are enumerated. 41Schedule C is the, presumably erroneously named Schedule B, from the contents page of the 2007 Agreement. Either way, the Schedule is referring to the Transport Industry (State) Award ("the State Award"). 42Clause 1. Wage of the State Award forms part of the 2007 Agreement. It has an eight grade structure and has the same preamble to each grade as for the 2007 Agreement: "Employees appointed to this grade..." 43Clause 12. Payment of Wages forms part of the 2007 Agreement. Clause 12.10 provides that each employee is to be supplied with a pay envelope or statement in writing which includes specified data. Clause 12.10.1 states: "The name and classification of the employee". Thus, it is a legal requirement that the Respondent grade the employee. The term "classification" is in the singular. 44Clause 14. Rate of Pay deals with a number of matters. Clause 14.1 is headed "Minimum Weekly Payment". It says: "An employee covered by this section must receive each week no less than the wage rate prescribed for the appropriate classification in clause 1 of this award and in addition 30 percent". 45Again, there is only a reference to "classification" in the singular. This is consistent with the legal requirement of the Respondent to appoint a driver to a grade upon engagement. If the Respondent requires a driver to have and utilise an MC Licence, then the appointment is to Grade 8. 46There is an industrial awareness as to the meaning of "minimum wage". This is the bare wage to be paid to an employee. In the case of an industrial instrument having a classification structure, then the bare wage is the wage for a specified grade. There is permanency about this meaning of the term, "minimum wage". Thus, an applicant for a job is told that the job is paid at a certain minimum rate. The applicant may be told of additional remunerative benefits - overtime, shift penalties, expense related allowances and so forth. But the job applicant knows and can budget for in respect of his/her monetary outgoings, a guaranteed minimum wage. 47On the Respondent's case that is not so because the driver would not know if the Grade 8 wage minimum would be met from one pay cycle to the next. What is guaranteed on the Respondent's case is that the Grade 8 wage minimum would not always be met because the Respondent would have (and now puts into effect) fluctuating minimum payments. Thus, one pay cycle for a Grade 8 driver could be payment at the Grade 8 rate of pay - the next cycle at say Grade 8 for 3 days/Grade 6 for 2 days - the next cycle at Grade 8 for 1 day/Grade 6 for 4 days - and so forth. 48That fluctuating cycle of minimum payments goes against the understood industrial awareness of a guaranteed minimum payment from one pay cycle to the next. 49The Respondent's case goes against the 2007 Agreement's requirement for appointing an employee to a grade and naming that grade as one of the details on the pay envelope. 50The 2007 Agreement does not speak of the Respondent's legal right to multi-classify drivers on the basis of the type of vehicle driven. There is a Mixed Functions clause (Clause 30) but it does not provide for that multi-classification approval. Conclusion 51The Commission concludes that the 2007 Agreement is clear on its face and no recourse is required to the broad interpretative approach sought by the Respondent. 52The contention put forward by the TWU as to the meaning of the 2007 Agreement, has been made out. Thus, a driver appointed to Grade 8 by the Respondent, is to be paid the Grade 8 rate when also driving a semi-trailer. The Interpretation of the 2011 Agreement 53The TWU put the same submission as to interpretation of the 2011 Agreement, as for the 2007 Agreement. 54The Respondent argued otherwise and in particular relied upon the evidence of Ms Dyke and Mr Keast that a differing graded rate applied depending on the type of vehicle driven. Their evidence went to the negotiations and hence intention of the parties to the negotiations as to the issue of the grading/remuneration of drivers. Their evidence as to the negotiations is extrinsic material and is to be considered in the event that the 2011 Agreement is not clear on its face as to that grading/remuneration issue. 55The 2011 Agreement sets out a grading structure and remunerations in Appendix 1. There are three grades listed: 6, 7 and 8. Each grade has the same preamble as for the 2007 Agreement: "Employees appointed to this grade can be required to perform any of the following functions for which they have been trained:" 56Appendix 1 also has headings "Wage Rates", "Kilometre Rate"; "Rates for Long Distance Employees" and "Allowances and loadings". 57The "Wage Rates" data comprises a table of rates of pays over a period of a few years, benchmarked against two grades: Grade 6 - Full Time; Grade 6 - Casual; Grade 8 - Full Time; and Grade 8 - Casual. 58The "Kilometre Rate" is the next heading under "Wage Rates". It states that: "In addition to the above classification an Employee can be paid by the kilometre for any work over five hundred kilometres return journey (500 kms)". The significance of the foregoing is that it is stating that an additional payment for long distance is attached to the "above classification" set out in the "Wage Rates" table. That is, an employee/driver is graded upon engagement and provided with an additional allowance for long distance work. So, an employee/driver is graded at say Grade 8 and when driving long distance is paid the additional allowance for that Grade 8 appointment. 59The 2007 Agreement at Appendix 1 does not say that an employee is subject to a different grading classification for long distance haulage. The long distance haulage rate is expressed as a payment additional to the classification already given to the driver. 60The 2011 Agreement as a whole has no provision for the multi-classification of a driver. 61The 2011 Agreement at Clause 1.2.3 (Parties Bound) and Clause 1.4 (Application) refers to two federal awards, although presumably incorrectly names one of those two federal awards at Clause 1.4 (the Commission's research did not locate a Transport Workers... 2010 Award). 62The 2011 Agreement at clause 1.4 states, in part, "Anything not covered in this document reverts to the terms of the award". Although the "award" from that quote is in the singular, the context suggests that that is an error and should read "awards". Given that the awards have some role to play in the reading of the 2011 Agreement, the Commission did so. 63Clause 15.2 of the Road Transport and Distribution Award 2010 deals with minimum wages and sets out the minimum wage for a ten (10) grade classification structure. This clause does not provide for the multi-classification of a driver according to the type of vehicle driven. The provision for a minimum rate per grade is consistent with the industrial awareness view expressed by the Commission above for the 2007 Agreement. 64The Road Transport (Long Distance Operations) Award 2010 at Clause 13.1 sets out the minimum weekly rate of pay against an eight (8) grade structure. Clause 13.2 (a) states that a "full-time employee is entitled to a guaranteed minimum fortnightly payment..." (emphasis added). Again, as set out above there is an industrial awareness that a job applicant will have certainty/predictability as to a minimum payment for work performed. 65Clause 10 deals with the Types of employment. Clause 10.1 stipulates that "At the time of engagement the employer will inform each employee of their terms of engagement". Thus, an employee/driver is to be informed, at the time of engagement, as to his/her classification grade. There is no provision in this federal award for the employer to inform of a multi-classification term of engagement depending on the type of vehicle driven. Conclusion 66The Commission concludes that the 2011 Agreement is clear on its face and no recourse is required to the broad interpretative approach sought by the Respondent. 67The contention put forward by the TWU as to the meaning of the 2011 Agreement, on its face, has been made out. Thus, a driver appointed to Grade 8 by the Respondent, is to be paid the Grade 8 rate when also driving a semi-trailer. Order Sought by the TWU 68The TWU sought an order that a driver who possesses an MC Licence be paid at the rate corresponding to the Grade 8 rate of pay in the Agreement for all work that the driver performs. The Commission notes that the TWU's Draft Order used the term "agreement" in the singular. That would seem to follow (as to the singular) because that preamble to the Draft Orders cites one industrial instrument only: the 2007 Agreement. Thus, the TWU Draft Order does not extend to the 2011 Agreement. 69As previously stated, the Commission finds that the 2007 Agreement requires, at law, that the Respondent pay the Grade 8 rate of pay to a driver appointed to Grade 8, regardless of the type of vehicle driven. In coming to that conclusion, the Commission considered all of the evidence and submissions made by the parties. 70The Commission accordingly issues the Order sought by the TWU. ORDER A. The Industrial Relations Commission of New South Wales finds that in relation to the Pure Logistics Transport Pty Ltd Union Collective Agreement, NSW Operations (the Agreement): 1. Clause 2 of the Agreement is to be interpreted to mean that an employee is employed at a particular grade and is to be paid in accordance with that grade for the entirety of the work that the employee (driver) performs. B. Accordingly, the Industrial Relations Commission of New South Wales orders that: 1. "Employees that possess an MC licence be paid at the rate corresponding to Grade 8 in the Agreement for all work that they perform". C. The foregoing Order shall come into effect, twenty-eight (28) days from the date of this Decision. 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: 07 December 2012