Industrial Relations Commission New South Wales Medium Neutral Citation: Star Track Express and TWU New South Wales (Contract Carriers) Contract Agreement 2019 [2019] NSWIRComm 1077 Hearing dates: Determined on the papers Date of orders: 11 October 2019 Decision date: 11 October 2019 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: The Star Track Express and TWU New South Wales (Contract Carriers) Contract Agreement 2019 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, Pt 3 Ch 6 Cases Cited: Review of the Principles for Approval of Enterprise Agreements 2018 [2018] NSWIRComm 1064 Category: Principal judgment Parties: Star Track Express Pty Limited Transport Workers' Union of New South Wales File Number(s): 2019/302639 Publication restriction: I order that there be no publication of Schedule 1 of the Star Track Express and TWU New South Wales (Contract Carriers) Contract Agreement 2019 on the website of the Industrial Relations Commission of New South Wales Judgment 1. This is an application pursuant to s 324 of the Industrial Relations Act 1996 (NSW) ("Act") by Star Track Express Pty Limited ("Star Track Express") seeking approval of a contract agreement made under s 322 of the Act between Star Track Express and the Transport Workers' Union of New South Wales ("TWU"). 2. According to clause 1 of its terms, the contract agreement is to be known as the Star Track Express and TWU New South Wales (Contract Carriers) Contract Agreement ("Agreement"). On its terms it will apply to all contract carriers contracted to Star Track Express "to perform the current activities of the business within the metropolitan area of NSW (or such other area as agreed)" ("Carriers"). 3. The application is supported by the necessary Statement of Particulars. Star Track Express read an affidavit of Adam Moulton sworn on 19 September 2019. In his affidavit Mr Moulton deposed as follows: 1. he is the Head of Workplace Relations for Star Track Express; 2. the Carriers to whom the Agreement will apply are "geographically distinct as they operate in the NSW metropolitan area". Given the population density of the NSW metropolitan area compared to regional areas in NSW and the number of delivery points expected to be reached in the NSW metropolitan area, it is fair to exclude carriers outside of this area for coverage of the Agreement; 3. Star Track Express and the TWU met on no less than eight occasions over an 18 month period to negotiate the terms of the Agreement. After each meeting, briefings were held with the Carriers to explain the respective bargaining positions of each party. After in-principal agreement had been reached between Star Track Express and the TWU a copy of the proposed Agreement was made available to the Carriers and its terms were explained to them. A vote on the proposed Agreement was undertaken and the Carriers were unanimously in support of it; and 4. in his opinion: 1. the Agreement does not, on balance, provide a net detriment to the Carriers when compared with the aggregate package of conditions of engagement under the Transport Industry – General Carriers Contract Determination 2017 which would otherwise apply to them; 2. the Agreement complies with all relevant statutory requirements, including the requirements of Part 3 Chapter 6 of the Act and the Anti-Discrimination Act 1977 (NSW); and 3. the parties understand the effect of the Agreement and did not enter the Agreement under pressure. 1. In an email to the Commission dated 2 October 2019 Mr Moulton, on behalf of Star Track Express, made a request that Schedule 1 to the Agreement, which sets out the rates payable by Star Track Express to the Carriers, not be published. The TWU made no objection to that request and I am aware that it is consistent with the practice adopted in other contract agreements that have been approved by the Commission. I will make the order sought by Star Track Express. 2. In his email of 2 October 2019 Mr Moulton stated as follows: "Clause 4(1)(b) provides that the Agreement replaces all previous agreements. Accordingly, the Star Track Express Contract Agreement 2006-2007 (CA06/7) is to be terminated upon the approval of the new Contract Agreement. Additionally, a large number of contractors who are covered by the new Contract Agreement and were engaged prior to 2011 were previously covered by the Australian Air Express – Transport Workers Union and Contract Carriers Agreement 2010 (CA10/4). During 2010 as part of the divestment of Australian Air Express by Qantas and Australia Post, contract carriers engaged by Australian Air Express (AAE) were transferred to contracts with Star Track Retail Pty Ltd and then subsequently to Star Track Express Pty Ltd. StarTrack and the Australia Post Group no longer have any controlling interest in AAE. I have received instructions from Qantas (which wholly owns Australian Air Express) that it no longer engages any contract carriers under this Agreement and that it consents to the Agreement being terminated on that basis." 1. In an email in response dated 4 October 2019 the Commission noted that the parties to the Australian Air Express – Transport Workers Union and Contract Carriers Agreement 2010 were Australian Air Express Pty Limited ("AAE"), the TWU and the relevant carriers. As AAE is not a party to the Agreement and has no apparent interest in the present proceedings, the Commission queried whether Star Track Express and the TWU could agree to the termination of an agreement involving third parties. 2. In a further email to the Commission dated 10 October 2019, Mr Moulton stated: "StarTrack notes the commentary provided below. In this regard, we acknowledge that the AAE Agreement cannot be terminated as part of the current proceedings and we no longer seek that it be terminated. However, for the avoidance of doubt, StarTrack requests it be noted that [its] position is that the AAE Agreement no longer has any application to StarTrack for the following reasons: (a) StarTrack is no longer a party to the AAE Agreement; and (b) While StarTrack considers that the AAE Agreement has never applied to StarTrack, to the extent that it may have applied to StarTrack in any capacity, the effect of clause 4(i)(b) is to replace the AAE agreement with the Agreement. On this basis we are content for the application to be determined on the papers." 1. In an email dated 11 October 2019 Gavin Webb, the Chief Legal Officer of the TWU, stated: "The TWU notes StarTrack's position and is happy for the application to be determined on the papers." 1. 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. 2. The Star Track Express and TWU New South Wales (Contract Carriers) Contract Agreement 2019 is approved in accordance with s 325 of the Act. In accordance with its terms it will operate until 10 October 2022. 3. The Agreement rescinds and replaces the Star Track Express Contract Agreement 2006-2007 (CA06/7). It replaces the Australian Air Express – Transport Workers Union and Contract Carriers Agreement 2010 (CA10/4) to the extent that it would otherwise have applied to the Carriers. 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: 11 October 2019