Industrial Relations Commission New South Wales Medium Neutral Citation: Transport Industry - General Carriers (State) Contract Determination 1984 [2013] NSWIRComm 30 Hearing dates: 09/10/2012 Decision date: 19 April 2013 Before: Backman J Decision: (1) In IRC 803 of 2012, the application brought by the Transport Workers' Union of New South Wales to vary the Transport Industry - General Carriers (State) Contract Determination is dismissed. (2) In IRC 905 of 2012, the application brought by the NSW Business Chamber and the Australian Industry Group NSW Branch to vary the Transport Industry - General Carriers (State) Contract Determination is dismissed. Catchwords: CONTRACT DETERMINATION - application by Transport Workers' Union of New South Wales for a variation of the Transport Industry - General Carriers (State) Contract Determination - application seeks an increase in the labour component utilising the existing benchmark in the Contract Determination - increase of 4.25 per cent over 18 months annualised to 2.83 per cent sought utilising the Transport Industry (State) Award benchmark - TIS Award no longer applies to employee drivers - whether TIS Award continues to apply as a benchmark in the Contract Determination - relevance of substantial legislative reform occurring from 2006 and whether any impact of those reforms upon private sector employees - insufficient evidentiary material provided to the Commission to facilitate proper consideration of issues - orders CONTRACT DETERMINATION - application by NSW Business Chamber and Australian Industry Group NSW Branch for a variation of the Transport Industry - General Carriers (State) Contract Determination - application seeks to replace the existing benchmark in the Contract Determination with a new benchmark, namely, the Road Transport and Distribution Award 2010 - whether the existing benchmark should be changed - whether the application to change the benchmark is more appropriately dealt with in a pending review of the Contract Determination - whether the existing benchmark continues to apply in the context of substantial legislative reform which has taken place since 2006 - insufficient evidentiary material provided to properly assess the issues, including the impact of legislative reform upon employee drivers in New South Wales covered by the Contract Determination - orders Legislation Cited: Industrial Relations Act 1996 Cases Cited: State Wage Case 2010 (2010) 201 IR 155 Taxi Industry (Contract Drivers) Contract Determination 1984 [2012] NSWIRComm 80 Category: Principal judgment Parties: IRC 803 of 2012 Transport Workers' Union of New South Wales (Applicant) Australian Business Industrial (First Respondent) Australian Federation of Employers and Industries (Second Respondent) Australian Industry Group New South Wales Branch (Third Respondent) Brambles Limited (Fourth Respondent) Courier and Taxi Truck Association (Fifth Respondent) TNT Australia Pty Limited (Sixth Respondent) IRC 905 of 2012 NSW Business Chamber (First Applicant) Australian Industry Group NSW Branch (Second Applicant) Transport Workers' Union of New South Wales (First Respondent) Australian Federation of Employers and Industries (Second Respondent) Brambles Limited (Third Respondent) Courier and Taxi Truck Association (Fourth Respondent) TNT Australia Pty Limited (Fifth Respondent) Representation: IRC 803 of 2012 Mr A Hatcher SC (Applicant) IRC 905 of 2012 Mr A Hatcher SC (First Respondent) IRC 803 of 2012 Transport Workers' Union of New South Wales (Applicant) NSW Business Chamber (First Respondent) Australian Federation of Employers and Industries (Second Respondent) Australian Industry Group NSW Branch/TNT Australia Pty Limited (Third and Sixth Respondents) IRC 905 of 2012 NSW Business Chamber (First Applicant) Australian Industry Group NSW Branch (Second Applicant) Transport Workers' Union of New South Wales (First Respondent) Australian Federation of Employers and Industries (Second Respondent) TNT Australia Pty Limited (Fifth Respondent) File Number(s): IRC 803 of 2012 IRC 905 of 2012 DECISION 1The Transport Workers' Union of New South Wales (TWU) has applied by way of a further amended application under s 320 of the Industrial Relations Act 1996 (the Act) for a variation of the Transport Industry - General Carriers (State) Contract Determination (the Contract Determination). 2The NSW Business Chamber (NSWBC) and the Australian Industry Group NSW Branch (AiG) also applied for a variation to the Contract Determination under s 320 of the Act (the counter application). 3On 28 August 2012 the parties reached a consent position which saw rates varied using the calculations adopted in the TWU application other than in respect of the Wage Factor/Sick Leave component (the labour component). The wage rate adopted by consent was the transitional wage rate for a grade 3 employee under the Road Transport & Distribution Award 2010 (the RTD Award) as at 1 July 2012. The Commission made consent orders on that day which supported the parties' consent position (the consent variation). Those orders were: By consent the Commission orders that: 1. The Transport Industry - General Carriers Contract Determination is varied in accordance with Schedule A to this Order. 2. This variation shall take effect from 10 September 2012. 4As a consequence of the consent variation the contract carriers received an overall increase in the rates of between 4 per cent to 6 per cent, approximately. This included an increase in the wage benchmark of 1.71 per cent. 5The outstanding issue between the parties concerned the proposed alteration to the Table contained in clause 9 of Schedule 2 of the Contract Determination. During the hearing of this issue the TWU did not press two components of the Table: the Registration and CTP component and part of the Repairs and Maintenance component, namely, the words: "'Labour' is adjusted according to the percentage increase in a Mechanics level 1, R6 wage under the Vehicle Manufacturing Repair service and Retail Award 2010." 6The remaining components of remuneration set out in the Table, which are sought in the TWU application consist of the following: Component Method of Adjustment Wage Factor Adjust according to the actual percentage change in the General Rate of pay for a Transport Worker Grade Three as per Table 1, Wages of Part B - Monetary Rates contained in the Transport Industry (State) Award. Sick Leave Return on Capital Adjust by the average percentage change in the price of a Freightliner CL 112 450HP, an Isuzu FTR 900 MWB and a Holden Colorado Ute 2dr Man 5sp CC (or a comparable vehicle replacing any of these vehicles) as determined by "The Red Book". Depreciation Lease Cost Insurances Adjust according to the percentage change in the ABS CPI Transportation Sub Group "Vehicle Insurance". Administration Adjust according to the percentage change in the ABS CPI Sydney (All Groups). Fuel Adjust according to the percentage change in the AIP NSW State weekly average for the retail price of diesel, excluding GST. Tyres Adjust according to the percentage change in the ABS CPI Transportation Sub Group 'Motor Vehicle Parts and Accessories'. Repairs and Maintenance The Adjustment shall be based upon the following index: Labour: 67 Parts: 33 Total: 100 "Parts" is adjusted by application of the movement in the Consumer Price Index (All Groups), Sydney. 7The counter application seeks, relevantly, the following variation to the Table in clause 9 of Schedule 2 of the Contract Determination: Delete the words "General Rate of pay for a Transport Worker Grade Three as per Table 1, Wages of Part B - Monetary Rates contained in the Transport Industry (State) Award" from the table contained in clause (9) of Schedule 2 of the Transport Industry - General Carriers (State) Contract Determination (Award Code 105) and insert in lieu thereof the words "the minimum weekly rate applicable under the Road Transport and Distribution Award 2010 for a Transport Worker Grade 3 employed in NSW"". 8It will be apparent from the parties' respective applications with regard to the variations sought to the Table in clause 9 of Schedule 2 that the TWU contends for the continued use of the Transport Industry (State) Award (TIS Award) as the labour benchmark and the NSWBC and AiG, representing the principal contractors, contend for the RTD Award as the appropriate labour benchmark. 9The Australian Federation of Employers and Industries also appeared in both applications and supported the submissions of the AiG and the NSWBC. 10The grounds and reasons relied upon in the TWU application, which remain relevant, include: 1. The Transport Industry - General Carriers Contract Determination (the Determination) was made by consent of the parties to provide cost recovery rates which are calculated to cover the wages, standing costs and running costs of contract carriers performing local work (that is, work within a 50 kilometre radius of the starting place of travel or work within the Country of Cumberland). The Determination has broad coverage in the sense that it is intended to cover all contract carrier work except for those types of contracts of carriage dealt with in other determinations of the Industrial Relations Commission of New South Wales or that are specifically exempted in clause 2 of the Determination. 2. Schedule 2 of the Determination contains a procedure for calculating any rise or fall in the costs incurred by the contract carriers covered by the Determination. The costs incurred by the contract carriers have been accounted for in Schedule 2 ("the agreed costs components"). The Determination has been varied regularly by consent in accordance with the rise and fall procedure. 3. The rates contained in Schedule A of this application have been calculated in accordance with the rise and fall procedure and take into account movements in the agreed costs components between 30 April 2011 and 30 April 2012. 4. The last time the Determination was varied to take into account all movements in the agreed cost component was on 7 April 2011. 5. The agreed cost components and the indicia by which their inflation are measured is set out in clause 9 of Schedule 2 of the Determination. The price movement in the cost components up to 30 April 2012 and the indicia by which they are measured are as follows: a. Items 1, and 2, 'labour costs', have increased in the period up until 30 April 2012 by 4.25% as measured by the increase to the weekly wage rate for Transport Worker Grade Three under the Transport Industry (State) Award. b. Item 3, 'return on capital', item 4, 'depreciation' and item 5, 'lease costs', have increased by 4.23% since the last variation. The increase in these price components are sourced from the 'Red Book' (as at 30 April 2012). .... d. Item 7, 'insurances' has increased by 9.17% as measured in accordance with the relevant CPI sub-value ('vehicle insurance') for the March quarter of 2012. e. Item 8, 'administration' has increased by 3.65% as measured in accordance with the relevant CPI value ('all of Sydney') for the March quarter of 2012. f. Item 9, 'running costs', which deals with the diesel fuel pump price exclusive of GST, has increased by 18.21% (in the case of fuel rebate being applicable) and 15.47% (in the case of the fuel rebate not being applicable) since it was last measured for the purpose of a variation to the Determination (see paragraph 7 below). The benchmark used to measure the price of diesel was obtained from the Australian Institute of Petroleum for the week ending April 30 2012. g. Item 10 'tyres', have increased by 0.21% for the March quarter of 2010. ... i. The allowances prescribed in Schedules 3 and 4 have been varied by a 3.65% as measured in accordance with the relevant CPI value ('all of Sydney') for the March quarter of 2012. 8. Paragraph (i) of sub-clause (b) of clause 12 of Schedule 2 of the Determination provides that an application to vary the price of fuel can be applied for at any time providing that the date from which the increase is to become operative is at least one calendar month from the date of the last increase. The last variation to the Determination to take account of the movement in the price of fuel became operative on 7 April 2011. 9. The application is consistent with the terms of the Transport Industry (GST Protocol) Contract Determination. 10. Contract carriers have faced significant increases in their costs since the last variation to the substantive determination rates in April 2011. A rate increase is necessary as a matter of industrial equity for contract carriers to cover their costs. 11The counter application relies upon the following grounds and reasons: 3. During the proceedings an issue arose as to the appropriate labour benchmark to be used for the rise and fall formula contained in the Transport Industry - General Carriers (State) Contract Determination (Award Code 105). ... 7. The proper industrial principle to be applied in the identification of benchmarks for use in cost formula for contract determinations is that they represent true and actual (minimum) costs that are reasonably expected to be incurred in the provision of the service by the contract carrier. 8. Historically the Transport Industry (State) Award was, applying the principle in paragraph 7 above, the most appropriate labour benchmark as it represented the true and actual minimum costs for labour that were reasonably incurred in the provision of cartage service by a contract carrier. 9. This is to say that were the contract carrier to pay the driver of the vehicle in accordance with the relevant applicable industrial award it would have been the Transport Industry (State) Award. 10. Applying the principle in paragraph 7 above and the logic in paragraph 9 above today would mean that the Road Transport and Distribution Award 2010 is the most appropriate labour benchmark not the Transport Industry (State) Award. 11. By force of the operation of the Fair Work Act 2009 Cth and the Industrial Relations (Commonwealth Powers) Act 2009 NSW, the Transport Industry (State) Award no longer covers and applies to relevant employers and employees in NSW other than those in the Public Sector and Local Government. 12. By Force of the operations of the Fair Work 2009 Cth and the Industrial Relations (Commonwealth Powers) Act 2009 NSW, the Road Transport and Distribution Award 2010 now covers and applies to relevant employers and employees in NSW other than those in the Public Sector and Local Government. 13. By Force of the Industrial Relation Amendment (Non-Operative Awards) Act 2010 NSW and in accordance with the State Wage Case 2010 [2010] NSW IRComm 183 and various orders issued in the section 19 Award Review Matter IRC 140/11, the Transport Industry (State ) Award has been preserved by the Industrial Relations Commission of NSW as applying to 'public sector employees only'. Alterations to the rates and other amounts specified under the Determination 14. The Applicant parties, in making this application, have adopted the calculations (apart from the correction of some minor errors) made by the Original Applicant (TWU) for all other components other than the Wage and Sick Leave components in the adjustment formula (item 9 of Schedule 2). 12In oral submissions the TWU explained that the Contract Determination which was made and published in 1984 has never been reviewed or consolidated since that time. It has of course been varied over the ensuing 28 or so years. An application for review is now pending, however, and that application, the Commission was informed, will seek a new Contract Determination. It is intended that the pending application will constitute an appropriate vehicle for the Commission and the parties to review the determination of the rates adjustment formulas and other conditions "in a holistic way", rather than attempting to resolve particular issues in isolation. What the Commission should not do here, it was contended, is review in the absence of consent particular items in the Contract Determination in isolation without the benefit of evidence and submissions. 13The Commission was taken to parts of the Contract Determination, from which several propositions were drawn. The first proposition was that the Contract Determination covers the public and private sectors. Although the TIS award, as a result of legislative developments in the Commonwealth sphere, no longer applies to the private sector it is still an award of the Commission and continues to have relevance to the operation of the Contract Determination. Secondly, the TWU application, insofar as the labour component is concerned, is founded upon an existing benchmark provided for in the Contract Determination. (I note in this regard that the method of adjustment for the Wage Factor component in the Table in clause 9 of Schedule 2 requires adjustment in accordance with a Transport Worker Grade 3 general rate of pay as set out in the TIS Award. The relevant part of the Award reveals that the general wage rate for a Transport Worker Grade 3 was increased in accordance with the State Wage Case 2010 (2010) 201 IR 155 by 4.25 per cent, or $703.80 per week). Thirdly, the rate adjustment formula operates as an indexation mechanism by which increases to rates are calculated by reference to movements in certain benchmarks. The formula is not a "true costs formula", which relies upon actually calculated costs of owner drivers. 14The fourth proposition involves the timing of increases. The Contract Determination provides for the adjustment of rates of pay every six months. The present application seeks to adjust the rates to reflect changes in costs over three six month periods, from 1 November 2010 until 30 April 2012. The calculation relied upon by the TWU under the TIS Award produces an increase of 4.25 per cent over an eighteen month period, which, when extrapolated to an annualised figure, results in an increase of approximately 2.83 per cent. A comparison between the change in the benchmark in the RTD award (the modern award) from October 2010 until April 2012 shows that the actual rates prescribed resulted in an increase of 3.4 per cent. The principal contractor parties however have not utilised the rate. Instead, they have utilised the modern award transitional rate which results in an increase of only 1.71 per cent. This is not a "like with like comparison". The rate utilised in the counter application was not in existence until 1 July 2012, which post-dates the adjustment period. 15The TWU also contended that, except for consent alterations, the rates in the Contract Determination have always been adjusted in accordance with the pre-existing formula which is the approach advocated by the TWU in its present application. The approach is also consistent with the approach taken by the Commission to similar applications: see, for example, Taxi Industry (Contract Drivers) Contract Determination 1984 [2012] NSWIRComm 80 at [20] [24] and [26] where his Honour Justice Staff applied the historical formula (contained in a report called the IPART Report) to justify increases in pay-in rates for taxi drivers covered by the Taxi Industry (Contract Drivers) Contract Determination 1984. Any change to the rate adjustment formula relevant to the TWU application in these proceedings, therefore, should be the subject of a full review and not as a result of a piecemeal application brought (by the principal contractor parties) in response to the TWU application. 16It was further contended by the TWU that the counter application is belated. The bulk of the private sector covered by the TIS Award left the State system in July 2006, some 6.5 years ago. The modern award commenced operation in January 2010. The principal contractor parties therefore have had in excess of six years to make an application to raise the issue of changing the benchmark. 17The counter application was also said to be opportunistic in that it was designed to avoid a rate increase otherwise owing under the Contract Determination. Instead, what the counter application seeks to do is compare two different increases to produce an artificially low result, unlike the TWU application which involves a "like with like" comparison between the TIS Award and the modern Award. Moreover, the calculations which are relied upon by the principal contractor parties are not based upon the correct time period. 18It is also contended by the TWU that the principal contractors' approach in effect seeks a retrospective change to the labour benchmark which is contrary to s 318(3) of the Act. The Commission is called upon to consider how the labour benchmark should operate with respect to the period from October 2010 to April 2012. This can only be done by reference to the existing benchmark and not a different benchmark which applied at July 2012. 19In written submissions, the AiG sought to emphasise that the consent variation made on 28 August 2012 provided contract carriers with an increase in wages of 1.7 per cent exceeding that which the principal contractors originally contended would be the approach, and, that no reduction to those rates was being sought in the present proceedings. It was also emphasised that the only element of the counter application in dispute in these proceedings concerns the proposed alteration to the Table in clause 9 of Schedule 2. If the counter application were to be granted, the AiG confirmed that there would be no further alteration to the rates in the Contract Determination and only an alteration to the wording of Schedule 2. In contrast, it was said, the TWU application seeks the continued use of the TIS Award for the method of adjustment for the labour component referred to in clause 9 of Schedule 2. If the TWU application were to be granted there will be a further increase in the rates in the Contract Determination. 20The AiG submissions refined the questions which (relevantly) fall for the Commission's determination on both applications: (a) Should it amend the Schedule 2 formula so that the benchmark for labour in the Wages Factor/Sick Leave component be the wage rates contained within the modern award which apply to equivalent drivers in NSW, as claimed by the ABI/Ai Group Application. (b) Should it accept or reject the application to further vary the rates in accordance with the TWU application, which includes the use of the Transport Industry (State) Award. 21In both written and oral submissions, the AiG proposed a third alternative which was expressed in its written submissions as follows: If, contrary to the Ai Group's submissions, the Commission is not willing to accept that the insertion of the relevant modern award benchmark for labour in schedule 2 of the GCCD is appropriate it does not follow that it must accept that the continued use of the Transport (State) Award as a benchmark for labour costs. ... It is open to it to the Commission to simply dismiss both applications. Should both applications be dismissed, the question of appropriate benchmarks or changes to the assumptions underpinning the GCCD more broadly could then be addressed in the context of complete review of the Determination, as foreshadowed by the Transport Workers Union. 22The AiG opposed the use of the TIS Award as a cost benchmark by which to measure labour costs in the Contract Determination because it was said to have no application to any equivalent employee drivers, that is, the TIS Award does not apply to private sector employees. Instead, the drivers are now covered by a modern award. 23Both the submissions of the AiG and the NSWBC set out in some detail the relevant legislative history which, it was contended, established a regime applicable to private sector employees from 1 January 2010 and effectively excluded those employees from coverage under the TIS Award. 24With regard to the rates contained in the TIS Award, the AiG submitted they are higher than those contained in the RTD Award. In attempting to demonstrate this, the AiG submissions referred to the effect of transitional provisions in modern awards. The purpose of such provisions was explained in its written submissions, part of which is extracted below: In recognition of the alterations needed to be made around Australia when rates of pay became centrally determined under the modern awards, most modern awards contain transitional provisions. The effect of the transitional provisions was to 'smooth' the change from rates derived from former state based awards to the modern award rates. Different methods are adopted depending upon whether the prior rates were higher or lower than the modern award rates as at the date of their introduction. Schedule A of the Road Transport & Distribution Award sets out the procedure for calculating the applicable 'transitional rates' which apply in NSW. 25According to the AiG, the transitional rates adopted in the modern award are consistent with those published by the Fair Work Ombudsman. The transitional rates, it was said, also take into account increases awarded by Fair Work Australia as part of its Annual Wage Review. The previous labour component benchmark in the Contract Determination was $675.10 (as at October 2010). According to the AiG, it does not seek to reduce the component as alleged by the TWU. The current transitional rate (as at 1 July 2012) is $686.68. The use of the TIS Award as a benchmark for labour was said to artificially inflate the rates contained in the Contract Determination, and effectively would enable owner drivers to "over recover". It is important, the AiG contended, that contract driver rates not be set at a level which is higher than that which enables the contract carrier to obtain recovery of their costs and equivalent wages to employee drivers. Given employee drivers can be readily substituted for contract carriers, the maintenance of artificially inflated costs has the potential to distort the market for contract carriers and discourage the use of their services. 26A further justification for the adoption of the modern award rate as the benchmark for labour under the Contract Determination advanced by the AiG was that it provides a sustainable measure of labour costs moving forward. In contrast there is significant uncertainty with regard to the future conduct of State Wage Cases in New South Wales. There were no State Wage Cases in 2011 or 2012, whereas the modern award continues to be varied. 27The AiG also contended that as a matter of law the TIS Award is no longer capable of applying to employees in the private sector. 28The AiG also responded to the TWU contention that the counter application was "belated". According to the AiG, any criticism of the principal contractor parties for having raised an objection to the use of the TIS Award should be disregarded given that the TWU application was not made at the appropriate time and, representatives of the TWU had previously advised the AiG that in effect they were preparing an application which would initiate a substantial review, or replacement, of the Contract Determination. 29The AiG also sought to answer the TWU contention that the counter application (impermissibly) contemplates retrospective operation. According to the AiG, all the counter application seeks to do is change a benchmark moving forward in respect of the labour component. Section 318 of the Act, on its true construction, prohibits changes to the Contract Determination that have retrospective application. It does not prohibit a formula which is contained within the Contract Determination from being retrospective in operation. The formula contained in the Contract Determination always applies at a particular point in time based on movements that occurred in the preceding period. 30With regard to the TWU's contention that the counter application does not involve a "like with like" comparison, the response of the AiG was that the counter application attempts so far as possible to compare "like with like", but the reality is that minimum rates for private sector employees are now set by the modern award. The counter application attempts to retain the Grade 3 classification to bring it in line with relevant legislative changes that have occurred. The industrial reality is that in New South Wales the transitional rates in the modern award are the rates that apply in the transport industry. 31The submissions of the NSWBC substantially reflected the AiG's submissions. In summary, the NSWBC contended that the TIS Award was no longer the relevant benchmark. Given the fundamental changes to Australia's workplace relations system, the TIS Award has been rendered legally redundant. It no longer has any bearing in relation to the costs attributable to an employee driving a truck and performing the work that would be performed by a contract carrier under the Contract Determination. 32The NSWBC also submitted that although the TIS Award continues to provide coverage, "technically", to public sector employees, there is no evidence before the Commission on the present applications as to whether the Contract Determination actually applies to any public sector employees performing public sector work. The NSWBC also responded to the TWU submission that the counter application does not involve a "like with like" comparison. The NSWBC contended on the issue that the purpose of the counter application is not to compare the TIS Award to the modern award. Rather, its purpose is to try and determine a benchmark for labour that a driver would currently earn if driving today. What applies today is the transitional rate in the modern award. 33In reply submissions, the TWU raised a number of points, one of which sought to emphasise to the Commission that it should not deal with issues in an evidentiary vacuum. This contention was directed to the submission of the principal contractor parties that the TIS Award continues to extend coverage to public sector employees. According to the TWU there was no evidence in support of the contention. Moreover, there was no evidence that the principal contractor parties represent anybody covered by the Contract Determination. 34To sum up the issues between the parties, the primary controversy between the parties in these proceedings concerns what benchmark should be used to determine the labour component for contract carriers covered by the Contract Determination. The matter is one of some complexity and not easy to resolve. One basis for the continued use of the TIS Award benchmark proposed by the TWU was that the rates in the Contract Determination have always been adjusted utilising the pre-existing formula in that instrument and that the Commission should continue to adopt that approach. The contention, however, ignores the substantial legislative changes which have taken place since 2006, and which, in the Commission's view, must cast some doubt on the continued relevance of utilising benchmarks for private sector labour derived from State awards which no longer apply to those employees. The Contract Determination has never been reviewed or consolidated since it was made in 1984. The Commission has been advised that a review is pending. That review will no doubt consider the wage rates adjustment formula in the Table in clause 9 of Schedule 2 from the perspective of current economic and legislative trends and whether the formula accurately reflects, and remains relevant in, the current economic and legislative climate in New South Wales. 35The contractor parties contended that the TIS Award labour benchmarks no longer apply to private sector employees who are now covered by a modern award. There is a distinction, however, to be drawn between the application (or more to the point, the non-application) of the TIS Award to private sector employees and the use of the TIS Award as a benchmark for adjusting wage rates in the Contract Determination. Although the TIS Award may no longer apply to the employees, there is no reason to suggest that it does not continue to apply as a benchmark for the adjustment of rates in the Contract Determination. The issue is whether the benchmark remains relevant and should be used or whether the modern award should be used as the benchmark because it is the award that now sets the minimum rates for private sector employees. 36An additional problem which I perceive, and one which appeared to be acknowledged by all the parties, concerns the lack of foundational material to underpin a number of the contentions. In deciding whether the percentage increases sought should be granted, the Commission will be guided by considerations such as whether an increase is fair and equitable and whether it is in the public interest. The AiG, for example, contended that the use of the TIS Award as a benchmark for labour artificially inflates the rates contained within the Contract Determination. The proposed rate sought by the TWU is $703.80 which the AiG contended would effectively enable owner drivers to "over recover". The Commission does not know, for example, in the absence of material whether the reference to "owner drivers" was intended to include employee drivers. According to the TWU, a comparison between owner drivers and employee drivers would need to take into account capital costs, the way a particular business is structured, the conditions of employment, as well as the fact that owner drivers do not get overtime, penalty rates or shift rates. Without sufficient material the Commission is unable to consider whether the drivers will in fact "over recover" if the TIS Award benchmark is used. On the other hand, the TWU contends that the counter application, if granted, would produce an artificially low result which is out of touch with actual wage movements in the community for employees. Some evidence in the form of Australian Bureau of Statistics (ABS) figures was produced in support of this submission. The figures reflect community private sector wage movements. The TWU, in written submissions, relied upon the figures for the June quarter 2012 and for the May 2011-May 2012 period to demonstrate that the increase sought (annualised at 2.83 per cent) is lower than private sector wage movements reflected in the ABS figures. This may be so, but of itself, it does not constitute material upon which the Commission could be comfortably satisfied that the increase is necessary as a matter of industrial equity for contract carriers to cover their costs, as asserted in the TWU application. 37These issues, I apprehend, will be explored in the pending review. In written submissions, the TWU submitted: Non-consensual changes to the adjustment formula should not occur unless in the context of a full review by the Commission of the GCCD in its entirety, including the entire adjustment process. A "cherry-picking" approach will inevitably lead to distortions in the outcome, in circumstances where the Commission will not be able to assess the validity of the process as a whole to ensure a fair result. The TWU is currently preparing an application for a new contract determination to entirely replace the GCCD, with a new rate structure and rate adjustment mechanism. It is anticipated that this application will be filed in the new year. That application will be the appropriate vehicle to consider any issues which the employers wish to raise concerning changes to the benchmarks. 38Although the submission is confined to whether the benchmark should be changed, it should be borne in mind that the TWU application, which is also contested, relies on the adoption of a benchmark in an award which no longer operates in New South Wales and has not done so since either 2006 or 2010. The consent variation awarded an increase in the labour component of 1.7 per cent which is somewhat less than the 2.83 per cent sought by the TWU. In the absence of sufficient material, the Commission is not minded to grant the counter application which involves changing the benchmark. In this regard, I agree with the TWU's contentions that the existing benchmark should not be changed in the absence of consent and otherwise than in accordance with a consideration of all the relevant material which will be available in the pending review. Nor is the Commission minded to grant the TWU application. That application relies on the TIS Award which no longer applies in New South Wales, and utilises a formula in the Contract Determination, the application of which and the impact of which, needs to be considered in the context of the substantial legislative reforms that took place from 2006. These matters should more appropriately form part of the subject matter for consideration in the pending review accompanied by the relevant materials. For these reasons, the Commission proposes to dismiss both applications. 39The Commission makes the following orders: (1) In IRC 803 of 2012, the application brought by the Transport Workers' Union of New South Wales to vary the Transport Industry - General Carriers (State) Contract Determination is dismissed. (2) In IRC 905 of 2012, the application brought by the NSW Business Chamber and the Australian Industry Group NSW Branch to vary the Transport Industry - General Carriers (State) Contract Determination is dismissed. * * * * * * 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: 19 April 2013