Industrial Relations Commission New South Wales Medium Neutral Citation: Transport Industry – Excavated Materials Contract Determination [2019] NSWIRComm 1011 Date of orders: 12 February 2019 Decision date: 12 February 2019 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: The Transport Industry – Excavated Materials Contract Determination is varied in accordance with Schedule A to the Application for Variation to a Contract Determination filed by the Transport Workers' Union of New South Wales on 3 December 2018, save that in item 1 the reference to "1 February 2019" be amended to read "1 March 2019" Catchwords: TRANSPORT INDUSTRY – application for variation of contract determination – rates of pay – no opposition to variation – variation made Legislation Cited: Industrial Relations Act 1996 (NSW) ss 315, 320 Cases Cited: Transport Industry – General Carriers Contract Determination – application for removal of Special Fuel Price Surcharge [2010] NSWIRComm 166 Category: Principal judgment Parties: Transport Workers' Union of New South Wales Australian Road Transport Industrial Organization of New South Wales Civil Contractors Federation The Australian Industry Group New South Wales Branch NSW Business Chamber Limited The Master Builders' Association of New South Wales Representation: L Deplater (Transport Workers' Union of New South Wales) M Baroni of counsel (Australian Road Transport Industrial Organization of New South Wales) E Rooke (Civil Contractors Federation) H Harrington (The Australian Industry Group New South Wales Branch) File Number(s): 2019/00032136 Judgment 1. On 3 December 2018 the Transport Workers' Union of New South Wales filed with the Industrial Registrar an application for variation ("Application") to the Transport Industry – Excavated Materials Contract Determination ("Contract Determination"). The Application was made pursuant to s 320 of the Industrial Relations Act 1996 (NSW) ("Act"). 2. In accordance with s 315 of the Act a conference was convened on 5 February 2019. Ms L Deplater appeared for the Transport Workers' Union. Mr M Baroni of counsel appeared for Australian Road Transport Industrial Organization of New South Wales. Ms E Rooke appeared for the Civil Contractors Federation, and mentioned the matter on behalf of The Master Builders' Association of New South Wales. Mr H Harrington appeared for The Australian Industry Group New South Wales Branch. 3. During the conference the parties presented a consent position, consistent with the Application, save that the date of commencement of the variation be amended to 1 March 2019. I was invited by Ms Deplater to make that variation to the Contract Determination immediately. 4. Out of concern for the fact that NSW Business Chamber Limited was not represented at the conference I declined Ms Deplater's request. I informed the parties present that I proposed to write to clarify the position of NSW Business Chamber Limited and, provided that no objection was raised to the proposed variation, I would proceed to vary the Contract Determination in chambers, on the papers. There was no objection raised to that course of action. 5. On 5 February 2019 I caused to have issued from the Registry an email addressed to the interested parties, including NSW Business Chamber Limited. That email contained the following: "Commissioner Sloan advises as follows: 'On 5 February 2019 I conducted a conference in these proceedings. The following parties were represented: the Transport Workers' Union of NSW, the Australian Industry Group, the Civil Contractors Federation (mentioning also for the Master Builders' Association of NSW) and the Australian Road Transport Industrial Organisation of NSW. During the conference the parties presented a consent position, consistent with the application made by the TWU save that the date of commencement of the variation be amended to 1 March 2019. I was invited to make a variation to the Transport Industry – Excavated Materials Contract Determination to that effect. Out of concern for the fact that the NSW Business Chamber Limited was not represented at the conference I declined to make the variation immediately. On the information available to me there are no matters in dispute between the parties. I consider that the requirements of s 315(1) and (2) of the Industrial Relations Act 1996 (NSW) have been met. Unless notified by the NSW Business Chamber of any objections to the proposed variation, and the basis of those objections, by 4.00pm on Friday 8 February 2019, I will proceed to decide the matter on the papers.' Regards" 1. The Commission has received no response from NSW Business Chamber Limited to the email of 5 February 2019. 2. In Transport Industry – General Carriers Contract Determination – application for removal of Special Fuel Price Surcharge [2010] NSWIRComm 166 Haylen J observed at [16]: "There was no dispute between the parties that there was general and wide discretion provided by s 320 of the Act to vary a determination. It was broadly accepted that in exercising that power to vary a determination the Commission may be guided by similar considerations contained within ss 10 and 17 of the Act." 1. The Application seeks to increase the rates of pay in the Contract Determination "to reflect the costs within the Excavated Materials industry at this time". The Application states that "the parties have conferred with a view towards reaching agreement as required by Part C, Clause 5 of the [Contract] Determination". No party has taken issue with these statements. Rather, as already stated, the parties who have appeared in the proceedings consent to the variation sought in the Application. 2. I am satisfied that the requirements of the Act and met and that it is appropriate that the Contract Determination be varied in accordance with the Application. Orders 1. I order that the Transport Industry – Excavated Materials Contract Determination be varied in accordance with Schedule A to the Application for Variation to a Contract Determination filed by the Transport Workers' Union of New South Wales on 3 December 2018, save that in item 1 the reference to "1 February 2019" be amended to read "1 March 2019". 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: 12 February 2019