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TRANSPORT INDUSTRY - CONCRETE HAULAGE CONTRACT DETERMINATION
  
Date10/10/2003
Volume341
Part8
Page No.
DescriptionCD - Contract Determination
Publication No.C2102
CategoryAward
Award Code 300  
Date Posted10/09/2003

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BEFORE THE INDUSTRIAL RELATIONS COMMISSION

(300)

SERIAL C2102

 

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

 

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:

Country Concrete Carriers

From:

Rod Brown

Date:

31 March 2003

Subject:

Transfers

 

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:

Concrete Carriers

From:

Leigh Essing

Date:

9 April 2003

Subject:

Heads of Agreement

 

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:

Carrier Delegates

From:

Rod Brown

Date:

9 April 2003

Subject:

Country 5 Year Carriers

 

This memo confirms that we currently have some 5 year Carrier Contracts at the following locations:

 

PLC2253

Triple JJJ Transport - Gunnedah

PLC2265

ANA Moree - Moree

PLC2216

EDR Pty Ltd - Moree

PLC2295

C & R Southbourne - Gunnedah

PLC2232

Slump Pty Ltd - Blayney

PLC2223

A & E Cameron - Cowra

 

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.

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