Industrial Relations Commission New South Wales Medium Neutral Citation: Toll Contract Carriers Agreement 2018-2020 [2019] NSWIRComm 1024 Hearing dates: Determined on the papers Date of orders: 12 April 2019 Decision date: 12 April 2019 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: The Toll Contract Carriers Agreement 2018-2020 is 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) ss 33, 322, 324, 325 Cases Cited: Review of the Principles for Approval of Enterprise Agreements 2018 [2018] NSWIRComm 1064 Category: Principal judgment Parties: Transport Workers' Union of New South Wales (Applicant) Toll Holdings Limited (Principal) File Number(s): 2019/97089 Judgment 1. This is an application pursuant to s 324 of the Industrial Relations Act 1996 (NSW) ("Act") by the Transport Workers' Union of New South Wales ("TWU") seeking approval of a contract agreement made under s 322 of the Act between the TWU on the one hand, and Toll Holdings Limited and each of its wholly-owned subsidiaries in Australia ("Toll") on the other. 2. The contract agreement is to be known as the Toll Contract Carriers Agreement – 2018-2020 ("Contract Agreement"). On its terms it will apply to all contract carriers engaged by Toll who fall within the jurisdiction of the Transport Industry – General Carriers Contract Determination ("Contract Determination"). 3. The application is supported by the necessary Statement of Particulars. 4. The application was listed for conciliation and directions on 9 April 2019. However, on 8 April 2019 the Industrial Registrar received an email from Fabiana James, a Senior Manager, Employee and Industrial Relations, employed by Toll. The email stated as follows: "This matter is listed for Conciliation and Directions on 9 April 2019 at 10.00am before Commissioner D Sloan. Regrettably, I was required to travel overseas for work over the weekend, and won't be back in time to attend the Conciliation and Directions. I emailed the Transport Workers Union seeking its consent to adjourn the matter. In response, Mr Gavin Webb, requested that we consider providing the TWU with correspondence that states that Toll consents to the registration and consents to the TWU appearing on its behalf. Whilst we cannot consent to the TWU appearing on our behalf, we wish to notify the Commissioner that we consent to the TWU's application for registration of the Contract Agreement lodged, and unless required by the Commissioner, we would be happy for the matter to be determined on the papers." 1. On receipt of this email I arranged for the Registry staff to make contact with Gavin Webb, the Chief Legal Officer for the TWU. During a conversation with a staff member of the Registry on 8 April 2019, Mr Webb confirmed that the TWU consented to the application being determined on the papers. 2. I have proceeded on the basis of the consent position put before me. 3. In support of the application the TWU filed an affidavit of Richard Olsen sworn on 28 March 2019. In his affidavit Mr Olsen deposed as follows: 1. he is the State Secretary of the TWU; 2. the contract determination over which the Contract Agreement will prevail is the Contract Determination; 3. the Contract Agreement will rescind the Toll Contract Carriers Agreement 2013-2017; 4. the terms and conditions of the Contract Agreement are in addition to the conditions of engagement under the Contract Determination. The rates provided under the Contract Agreement are higher than the Contract Determination; 5. the Contract Agreement does not provide a net detriment, on balance, to the contract carriers to which it applies; 6. the process of negotiation involved several months of discussions between the TWU, contract carriers engaged by Toll Transport Pty Limited and the management of Toll Transport Pty Limited; 7. the Contract Agreement has been discussed with and endorsed by the contract carriers engaged by Toll Transport Pty Limited prior to it being signed by the parties; 8. the Contract Agreement meets all relevant statutory requirements, including the requirements of the Anti-Discrimination Act 1977 (NSW) as the Contract Agreement "does not discriminate on the grounds of race, sex, pregnancy, marital status, status as a carer, disability, homosexuality, transgender, responsibility as a carer, compulsory retirement, age, HIV'AIDS vilification, homosexual vilification, transgender vilification and racial vilification"; 9. the parties did not enter into the Contract Agreement under duress and signed of their own will, and understand the effect of the Contract Agreement; and 10. the Contract Agreement complies with the principles set by the Commission under section 33 of the Act. 1. As stated in the email from Ms James to the Industrial Registrar of 8 April 2019, Toll consents to the approval of the Contract Agreement. I observe that the copy of the Contract Agreement attached to the application is signed on behalf of both Toll and the TWU. 2. On 9 April 2019 I arranged for the Registry to send an email to the parties in the following terms: "Commissioner Sloan writes as follows: I am in the process of considering the application that has been made for approval of the Toll Contract Carriers Agreement – 2018-2020 ('Agreement'). I am proceeding on the basis of what I understand to be mutual consent for the approval of the Agreement and the determination of the application 'on the papers'. Pursuant to cl 4 of the Agreement, it will apply to and be binding on 'Toll, all Carriers and the Union'. Combining the relevant definitions in cl 3 of the Agreement, 'Toll' is a reference to Toll Holdings Limited and each of its wholly-owned subsidiaries in Australia which engages a Carrier in any of the businesses known as Express Parcels, Intermodal and Specialised, Tasmania/Shipping, Retail/Consumer/Healthcare, Industrials, Energy, Mining or Linehaul. A 'Carrier' is an Owner-Driver (as defined) falling within the jurisdiction of the Transport Industry – General Carriers Contract Determination. The application is supported by an affidavit of Richard Olsen. At [5] of that affidavit Mr Olsen deposes as to the process of negotiation of the Agreement, but only by reference to Toll Transport Pty Limited. Similarly, at [6] Mr Olsen deposes that the Agreement has been discussed and endorsed by contract carriers engaged by Toll Transport Pty Limited. For clarity and certainty, does Toll engage Carriers (who will fall under the Agreement) other than through Toll Transport Pty Limited? Put another way, will the Agreement apply to Carriers other than those engaged through or by Toll Transport Pty Limited?" 1. On 11 April 2019 the TWU filed a further affidavit of Richard Olsen sworn on the same day. It is in the same terms as that sworn by Mr Olsen on 28 March 2019 in all but two respects, namely that Mr Olsen deposed that: 1. the process of negotiation involved several months of discussions between the TWU, contract carriers engaged by Toll Holdings Limited and each of its wholly-owned subsidiaries in Australia and the management of Toll Holdings Limited; and 2. the Contract Agreement has been discussed with and endorsed by the contract carriers engaged by Toll Holdings Limited and each of its wholly-owned subsidiaries in Australia prior to it being signed by the parties. 1. I am satisfied on the material presented to the Commission that the Contract 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. 2. The Toll Contract Carriers Agreement – 2018-2020 is approved in accordance with s 325 of the Act. In accordance with its terms it will operate until 30 June 2020. 3. The Toll Contract Carriers Agreement – 2018-2020 rescinds and replaces the Toll Contract Carriers Agreement 2013-2017 number CA14/1. 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 April 2019