TRANSPORT INDUSTRY - CONCRETE HAULAGE CONTRACT DETERMINATION
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Application by Transport
Workers' Union of Australia, New South Wales Branch, industrial organisation of
employees.
(No. IRC 3469 of 2003)
Before The Honourable
Mr Justice Peterson
|
4 July 2003
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VARIATION
1. Insert after
Annexure A Pioneer Concrete (NSW) Pty Limited Interim Enterprise of the
Transport Industry - Concrete Haulage Contract Determination published 30
November 1990 (260 I. G. 608), the following new Annexure B, Pioneer Concrete
(NSW) Pty Limited Interim Enterprise Arrangement to the Transport Industry -
Concrete Haulage Contract Determination.
Annexure B
1. New
Agreement:
(a) Pioneer
aggress that it will enter into a new cartage agreement with the TWU to cover
its existing Sydney Metro and Country NSW concrete carriers which new agreement
will come into effect on 1 November 2003.
There will need to be a resolution of dome viability issues in county
areas and performance issues in Sydney with respect to a small number of
contract carriers.
(b) The terms of
the new agreement are still to be negotiated in their entirety but the
agreement will be no less than ten (10) years duration for carriers with trucks
aged between 0 and 4 years (Metro) and 0 and 8 years (Country) as at 1 November
2003 and five years duration for Metro carriers with trucks aged between 4 and
8 years as at 1 November 2003.
(c) In recognition
of lead times for the purchase of new trucks, Pioneer will accept a firm Proof
of Order from a carrier for the purposes of compliance with the truck criteria
detailed in clause (b) above. If the
carrier does not complete the purchase of a new truck within a reasonable time
then Pioneer will be entitled to terminate the contract of that carrier.
(d) The new
agreement will be registered pursuant to the provisions of the Industrial Relations Act, 1996 (NSW).
2. Cartage Rates
(a) The parties
will continue to negotiate a new cartage rate to operate under Annexure A of
this Contract Determination. While
those negotiations take place Pioneer will continue paying its carriers in
accordance with the cartage rate structure applicable under the Agreement.
The parties agree that the current method of Rise and
Fall calculations is working satisfactorily.
The two disputes over Saturday work and the mapping tool are before the
Industrial Relations Commission of NSW and those proceedings will continue to
resolution.
(b) Pioneer will
pay carriers under the cartage rate structure under Annexure A of this Contract
Determination until either a new cartage rate is agreed between the parties or
until 31 October 2005 whichever event occurs first.
(c) If the parties
reached 31 April 2005 without a new cartage rate being agrees then the matter
will be referred to the Industrial Relations Commission of New South Wales for
conciliation.
3. Security of
Tenure
(a) Should a
carrier with more than twelve (12) years service with Pioneer as at 31 October
2003 wish to sell or assign his contract of cartage after 1 November 2003 then
Pioneer will not exercise its option to purchase that contract on the open
market, provided that the purchaser has been approved by pioneer, however that
no more than twelve (12) such long term carriers will be permitted to sell or
assign their contracts in any one (1) year.
This clause will apply if the carrier achieves 12 years' of service
between 31 October 2003 and 31 October 2005.
This clause will apply to both Metro and Country
regions (i.e. 12 long term carriers per annum in Country will also be permitted
to sell or assign.
(b) Where a
carrier with less than 12 years' service with Pioneer (as at 31 October 2003)
wishes to sell or assign his contract of carriage after 1 November 2003, then
Pioneer will consider whether it will exercise its option to purchase to
purchase the contract and advise the carrier accordingly.
(c) No assignment
or sale of contracts of carriage will be approved by pioneer prior to 1
November 2003, except in cases of genuine and extraordinary personal hardship.
(d) Where Pioneer
decides to terminate a contract of carriage for any reason, other the serious
misconduct and such termination occurs between 1 November 2003 and 1 November
2005 then Pioneer shall give the carrier 13 weeks' notice which will be worked
out. At the end of the notice period
Pioneer will pay the carrier $ 33,000 as the agreed termination payment. Pioneer will also offer to buy the vehicle
of the carrier for the relevant market value at the date of termination. The parties must negotiate a termination
provision to take effect after 1 November 2005.
4. Other
Contract Terms
(a) Except where
they are inconsistent with the provisions of this Annexure B (in which case
this Annexure B shall apply to the extent of the inconsistency) the provisions
of the Annexure A of this Contract Determination, mutatis mutandis, shall continue to apply to the parties until the
parties agree on new terms for which new cartage agreement or until 31 October
2005 whichever event occurs first.
(b) If the parties
reach 31 April 2005 without having reached agreement on terms for the new
cartage agreement then the matter will be referred to the Industrial Relations
Commission of New South Wales for conciliation.
5. Part-Time
Carriers
(a) The existing
part time carriers will not be offered ongoing contracts with Pioneer after 31
October 2003.
(b) Pioneer will offer
five (5) new full time contracts to members of the existing part-time
fleet. Two of those contracts will go
to Robert Briggs (Truck 562) and Adam Miller (Truck 566). The other three will go to members of the
part time fleet nominated by that fleet.
The five carriers must meet the full time contract criteria with respect
to supplying new trucks. The full time
contracts will have an embargo preventing sale of assignment for 5 years.
(c) Existing part
time carriers who do not apply for or are unsuccessful in applying for a full
time contract will be offered the choice of:
(i) Full time
permanent employment with Pioneer as a concrete truck driver in the Sydney
metro area together with financial compensation of ten (10) thousand dollars;
or
(ii) Financial
compensation of thirty (30) thousand dollars.
It will be a matter for the individual part-time
carrier as to whether they choose option (a) or (b) above.
6. Ongoing
Negotiations
(a) The parties
recognise and agree that this Annexure B represents the first two (2) years of
a new agreement which has yet to be settled.
Therefore the parties accept that they must use their genuine best
endeavours to keep negotiations going so that new provisions and a new cartage
rate are in place by 1 November 2005.
(b) The parties
will place appropriate emphasis on negotiating new terms for the payment of
waiting time and surcharges. It is
noted that Pioneer has expressed an intention to collect waiting time and
surcharges from customers and make this the basis of payments to carriers. Likewise the carriers have expressed a
preference for a flat guaranteed payment in return for accepting a contractual
obligation to secure signed dockets from customers and also accepting a financial
disincentive for carriers who fail to secure those dockets.
7. The
provisions of this Annexure B override any other provision of Annexure A to the
extent which those provisions are inconsistent with the provisions of this
clause.
8. The document
tendered as Exhibit 1 in the proceedings IRC 3469 of 2003 is incorporated as
part of this Annexure B and must be compiled with by the parties.
9. The document
tendered as Exhibit 2 in the proceedings IRC 3469 of 2003 is incorporated as
part of this Annexure B and must be compiled with by the parties.
10. The document
tendered as Exhibit 3 in the proceedings IRC 3469 of 2003 is incorporated as
part of this Annexure B and must be compiled with by the parties.
Exhibit 1
Memorandum
To:
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Country Concrete
Carriers
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From:
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Rod Brown
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Date:
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31 March 2003
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Subject:
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Transfers
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Gentlemen,
At the request of the delegates Pioneer has reviewed its
position on transfers. Currently
transfers are governed by Clause 4.3 of the contract and there has been some
controversy about the interpretation of the 30 kilometre limit.
In view of the successful negotiations over a new ten year
contract (successful to the point of agreeing on a number of things in
principle and an effective status quo for the first two years of the new ten
year contract) we have decided that for future transfers will be calculated as
follows:
For all country transfers the total distance travelled
to and from the delivery site will be calculated less the first 30 kilometres
of the trip. I.e. if the total distance
travelled there and back is less than 30 kilometres then no transfer will be
paid. If the total distance travelled
there and back is more than 30 kilometres then a transfer will be paid.
I believe that this now settles this controversial issue and
I look forward to a continuation of what has been a quite harmonious
relationship to date.
Rod Brown
Exhibit 2
Pioneer Internal Memorandum
To:
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Concrete Carriers
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From:
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Leigh Essing
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Date:
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9 April 2003
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Subject:
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Heads of Agreement
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A number of questions
have been asked by carriers as to what are Pioneer's intentions with regards to
its New South Wales carrier fleet and its right of termination under clause
3(iv) of the proposed Heads of Agreement sent to the TWU on 28 March, 2003.
I am happy to confirm
Pioneer's position for the period covered by the Heads of Agreement. Given the commercial considerations do not
indicate any need to change it. I make
the point that Victoria was a different situation.
I can also confirm that
Pioneer has no intention of embarking on a campaign of terminating any
individual carriers.
Therefore for the period
covered by the Heads of Agreement pioneer will not exercise its right of
termination under Clause 3(iv) of the proposed Heads of Agreement with respect
to any carrier who carries out the normal work obligations and who does not
commit serious misconduct.
Leigh Essing
Exhibit 3
Internal Memorandum
To:
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Carrier Delegates
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From:
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Rod Brown
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Date:
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9 April 2003
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Subject:
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Country 5 Year Carriers
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This memo confirms that
we currently have some 5 year Carrier Contracts at the following locations:
PLC2253
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Triple JJJ Transport
- Gunnedah
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PLC2265
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ANA Moree - Moree
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PLC2216
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EDR Pty Ltd - Moree
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PLC2295
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C & R
Southbourne - Gunnedah
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PLC2232
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Slump Pty Ltd -
Blayney
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PLC2223
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A & E Cameron -
Cowra
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The agreement with these carriers is that they need to
update their current vehicles with a live drive. There is no age criterion for "suitable vehicle", it
simply needs to be in acceptable condition with a live drive. If they do this, they will get a new 5 year
contract on current terms.
Would you please confirm that this has been accepted by the
relevant members.
Rod Brown
2. This
variation shall take effect on 1 November 2003.
R. J. PETERSON J.
____________________
Printed by
the authority of the Industrial Registrar.