Industrial Relations Commission New South Wales Medium Neutral Citation: Veolia Environmental Services (Australia) Pty Limited Contract Carriers Agreement 2017 [2018] NSWIRComm 1071 Hearing dates: 9 November 2018 Date of orders: 15 November 2018 Decision date: 15 November 2018 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: Agreement approved Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – awards and agreements – application for approval of contract agreement – agreement approved Legislation Cited: Anti-Discrimination Act 1977 (NSW) Industrial Relations Act 1996 (NSW) Cases Cited: Review of the Principles for Approval of Enterprise Agreements 2018 [2018] NSWIRComm 1064 Category: Principal judgment Parties: Veolia Environmental Services (Australia) Pty Limited Transport Workers' Union of New South Wales Representation: H Llewellyn (Applicant) File Number(s): 2018/325712 Judgment 1. This is an application pursuant to s 324 of the Industrial Relations Act 1996 (NSW) ("Act") by Veolia Environmental Services (Australia) Pty Limited ("Veolia") seeking approval of a contract agreement made under s 322 of the Act between Veolia and the Transport Workers' Union of New South Wales ("TWU"). 2. The contract agreement is to be known as the Veolia Environmental Services (Australia) Pty Limited Contract Carriers Agreement 2017 ("Agreement"). On its terms it will apply to all contract carriers engaged by Veolia who provide transport and cartage services for the collection and removal of waste within Veolia's Solid Commercial Waste Division currently based at Arndell Park in Sydney, and such other locations from which that Division may operate in the Sydney Metropolitan Area. 3. The application is supported by the necessary Statement of Particulars. 4. The hearing of the application took place on 9 November 2018. Mr Hugh Llewellyn appeared for Veolia. He is the Industrial Relations and People Solutions Manager for Veolia. There was no appearance for the TWU. Mr Llewellyn advised me that the relevant TWU organiser could not appear as he was attending the TWU's annual conference. He showed me, on his mobile phone, an email he said he had received from the organiser confirming the reasons for his non-attendance at the hearing and expressing the TWU's support for the application. 5. In support of the application Mr Llewellyn read an affidavit of Mark Whybrow sworn on 28 July 2018. In his affidavit Mr Whybrow testified as follows: 1. he is the New South Wales General Manager Employee Relations for Veolia; 2. the "award of which the agreement will prevail" [sic] is the Transport Industry Waste Collection and Recycling Contract Determination; 3. the Agreement provides for an annual CPI increase to the rates payable to the contract carriers and is therefore better than the "NSW Contract Carriers Agreement 2014". (At the hearing Mr Llewellyn clarified that this was a reference to the Veolia Environmental Services Contract Carriers Agreement 2014); 4. the Agreement was negotiated between the relevant contract carriers and local Veolia management, with the involvement of the TWU; 5. the Agreement will apply to contract carriers working out of the Arndell Park depot only. The agreement does not cover any other classification of an employee [sic] working at Arndell Park as they are covered under different instruments; and 6. in his opinion: 1. the Agreement does not, on balance, provide a net detriment to the carriers to which it will apply when compared with the aggregate package of conditions of engagement under the otherwise applicable Transport Industry Waste Collection and Recycling Contract Determination; 2. the Agreement meets all relevant statutory requirements, including the requirements of Part 3 Chapter 6 of the Act and the Anti-Discrimination Act 1977 (NSW); 3. the parties understand the effect of the Agreement; 4. the Agreement was not entered into under duress; and 5. the Agreement complies with the principles "set by the conditions under section 33 of the Act". 1. At the hearing, Mr Llewellyn confirmed that there are no contract carriers engaged by Veolia at Arndell Park who will not be covered by the Agreement. 2. During the hearing I observed that the Agreement on the Commission's file had not been signed on behalf of the TWU. I explained to Mr Llewellyn that in the absence of a TWU representative at the hearing to confirm the TWU's position I was reluctant to approve the Agreement, despite the email that he has shown to me. Mr Llewellyn informed me that he would provide the Commission with a copy of the Agreement executed by both Veolia and the TWU. 3. On 15 November 2018 I received by post from Mr Llewellyn a copy of the execution page of the Agreement. It appeared to bear the signature of Richard Olsen, who I know to be the State Secretary of the TWU, witnessed by Robert Rasmussen, an official of the TWU. 4. For an abundance of caution I made arrangements for Commissioner Support to contact Mr Rasmussen. As a consequence of that contact Mr Rasmussen sent an email to the Commission at 1.18pm on 15 November 2015. In that email Mr Rasmussen stated as follows: I write to confirm the signature page attached to the Veolia Agreement is that of Richard Olsen – State Secretary of the Transport Workers' Union of NSW and was witnessed by myself Robert Rasmussen of the Transport Workers' Union of NSW. The TWU does not object to the making of this agreement. 1. While the process has been a little unorthodox, I am prepared to proceed on the basis of the material before me. 2. I am satisfied on the material presented to the Commission that the Agreement submitted for approval complies with all necessary statutory tests and the principles set by the Commission pursuant to section 33 of the Act, in Review of the Principles for Approval of Enterprise Agreements 2018 [2018] NSWIRComm 1064. 3. The Veolia Environmental Services (Australia) Pty Limited Contract Carriers Agreement 2017 is approved in accordance with s 325 of the Act. In accordance with its terms it will operate until 30 June 2020. 4. The Agreement rescinds and replaces the Veolia Environmental Services Contract Carriers Agreement 2014 number EA14/5. Damian Sloan 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: 16 November 2018