Transport Industry – General Carriers Contract Determination [2016] NSWIRComm 3

Industrial Relations Commission New South Wales Medium Neutral Citation: Transport Industry – General Carriers Contract Determination [2016] NSWIRComm 3 Hearing dates: 16, 17, 18, 19, 20 and 30 November 2015; 2 December 2015 Decision date: 29 April 2016 Jurisdiction: Industrial Relations Commission Before: Kite AJ Decision: I am satisfied that the Transport Industry – General Carriers Contract Determination should be varied largely in accordance with MFI E so as to provide fair and reasonable conditions for owner-drivers and contractors.

In these circumstances, I have decided to rescind the Interstate Determination and replace it by the Transport Industry – General Carriers Contract Determination.

I will give the parties a short period to consider these reasons before making any formal orders. I propose, after hearing from the applicant as to the time required, to direct that the applicant prepare short minutes of order, including a draft interim determination, giving effect to these reasons. Catchwords: CONTRACT DETERMINATION – application to vary – principles to be applied – relevance of wage fixation principles – fair and reasonable conditions – relevance of consent or non-opposition of respondents – consent to division of proceedings into two stages – first stage to deal with non-rates issues – whether coverage of determination should be extended – whether rescission of another determination should be ordered – whether second determination of continuing practical effect – whether "purpose" clause should be included – whether principal contractors should provide a copy of the determination to each contract carrier engaged – whether a cartage rate schedule should be provided before work commences - whether compensation should be paid for time lost during repainting of vehicle – whether work time should include mandatory short fatigue breaks and time lost due to accident or breakdown – whether principal contractors should be obliged to develop drug and alcohol policies or programs –records to be maintained by principal contractors – whether a deeming clause should be included if records are not kept. Legislation Cited: Fair Work Act 2009 (Cwlth) s 125 Heavy Vehicle National Law (NSW) Industrial Arbitration Act 1940 (NSW) s 20 Industrial Relations Act 1996 ss 3, 163, 313, 316 320 Interpretation Act 1987 (NSW) s 12 Cases Cited: Hildred v Richardson 1971 AR 1019 In re Butchers, Wholesale (Cumberland) Award 1971 AR 425 Milk Carters (Country) Conciliation Committee 1941 AR 625 Old UGC Inc v Industrial Relations Commission of New South Wales [2004] NSWCA 197; 60 NSWLR 620 Old UGC Inc v The Industrial Relations Commission of New South Wales [2006] HCA 24; 225 CLR 274 Re Annual Work Program [2013] RSRTFB 7; 239 IR 129 Re Crown Employees' Education Officers Award (1975) AILR 863 Re Transport Industry – Mutual Responsibility for Road Safety (State) Award and Contract Determination (No.2) [2006] NSWIRComm 328; 158 IR 17 Tod v Reiher 1960 AR 64 Transport Industry - General Carriers Contract Determination Application by Australian Road Transport Industrial Organisation, New South Wales Branch for removal of Special Fuel Price Surcharge [2010] NSWIRComm 133