Transport Industry - Excavated Materials, Contract Determination

 

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

 

CONTRACT DETERMINATION REPRINT

 

This reprint of the abovementioned contract determination is published by the authority of the Industrial Registrar under section 390 of the Industrial Relations Act 1996, and under Rule 6.6 of the Industrial Relations Commission Rules 2022.

 

I certify that the form of this reprint, incorporating the variations set out in the schedule, is correct as at the latest date of effect therein mentioned.

 

 

E. ROBINSON,  Industrial Registrar.

 

 

Schedule of Variations Incorporated

 

 

DETERMINATION

 

Arrangement

 

PART A

 

Clause No.        Subject Matter

 

1.        Definitions

2.        Method of Remuneration

3.        Kilometre Rates

4.        Hourly Rates

5.        Other Rates

6.        Payments Included in the Rates

7.        Suitable Vehicle and Loading

8.        Minimum Hire

9.        Personnel

10.      Insurance

11.      Cartage Records

12.      Payment of Accounts

13.      Settlement of Disputes

14.      Double Booking

15.      Breakdowns

16.      Delays

17.      Meal Breaks

18.      Role of the Union

19.      Adjustment of Rates

20.      Superannuation

21.      Area, Incidence and Duration

 

Part B - Rates of Remuneration

 

Part C - Rise and Fall Formula

 

Part D - Temporary Fuel Levy

 

PART A

 

1.  Definitions

 

In this contract determination, unless the subject matter or context otherwise indicates or requires:

 

"The Act" means the Industrial Relations Act 1996.

 

"Contract Carrier" shall be as defined in the Act.

 

"Contract of Carriage" shall be as defined in the Act.

 

"Contractor" means " Principal Contractor" as defined in the Act.

 

"Excavation and Demolition Material" means any material that is removed from the earth at building and/or construction and/or demolition sites.

 

"Large Material" means material 76.2 cm gauge or over, measured at its maximum dimension (being rock, concrete, tree stumps, footings or R.S.J.s, etc.)

 

"Sydney City Area" means the area in Central Sydney bounded by City Road, Cleveland Street, Dowling Street, McLachlan Avenue, Waratah Street, Elizabeth Bay and Harbour foreshore to Pyrmont Bridge Road at Blackwattle Bay, and Wentworth Park Road, to Broadway."

 

"Union" means the Transport Workers’ Union of New South Wales (registered under the Act as an Association of Contract Carriers)."

 

2.  Method of Remuneration

 

2.1      Any contract carrier performing cartage work for a contractor will be paid according to one of the following methods, as determined by the contractor:

 

2.1.1   kilometre rates as provided in clause 3, Kilometre Rates; or

 

2.1.2   hourly rates as provided in clause 4, Hourly Rates.

 

2.2      Notwithstanding subclause 2.1 of this clause, where the contractor determines hourly rates to be the method of remuneration, but requires the contract carrier to complete a nominated minimum number of loads, then the work performed by the contract carrier will be paid for according to the kilometre rate method.

 

2.3      The contract carrier will be paid a rate based upon the number of axles in the vehicle supplied, except

 

(i)       for a Class 3 Truck and Dog trailer combination (as complies with the Class 3 Truck and Dog Trailer Combination Notice issued by the Roads and Maritime Authority) the rate shall be as specified for "6 axle (48t)"; and

 

(ii)      for a PBS Truck and Dog trailer combination (as complies with the National Class 2 PBS Level 1 and 2A Truck and Dog Trailer Authorisation Notice 2016 (No 1)) issued by the National Heavy Vehicle Regulator, the rates shall be as specified for "PBS T&D".

 

3.  Kilometre Rates

 

3.1      Loading Rate — Every time the contract carrier's vehicle is loaded by the contractor, the contract carrier will be paid the rate in Item 1 of Part B, Rates of Remuneration.

 

3.2      Loading Rate — Extra Capacity — In addition to the rates payable under subclause 3.1 of this clause, the contract carrier will be paid the rate in Item 1A of the said Part B for every cubic metre (or part thereof) carried in excess of the truck's minimum capacity as specified in subclause 7.1 of clause 7, Suitable Vehicle and Loading.

 

3.3      Kilometre Rates — For each kilometre travelled by the contract carrier while working for the contractor, the contract carrier will be paid as follows:

 

3.3.1   0-8 kilometres

Item 2 of Part B

 

3.3.2   Each additional kilometre over 8 kilometres

Item 3 of Part B

 

3.3.3   Each additional kilometre over 25 kilometres

Item 4 of Part B

 

3.3.4   Half kilometres - to be paid pro rata.

 

3.4      Kilometre Rates - Extra Capacity - In addition to the rates payable under subclause 3.2 of this clause, the contract carrier will be paid the following rates for each kilometre travelled for each cubic metre (or part thereof) carried in excess of the truck's minimum capacity as specified in subclause 7.1 of the said clause 7:

 

3.4.1   0-8 kilometres

Item 2A of Part B

 

3.4.2   Each additional kilometre over 8 kilometres

Item 3A of Part B

 

3.4.3   Each additional kilometre over 25 kilometres

Item 4A of Part B

 

3.4.4   Half kilometres — to be paid pro rata.

 

3.5      Wet Weather - Where the contract carrier is prevented from commencing work due to wet weather, the contract carrier shall be paid one hour's appearance money at the hourly rate referred to in subclause 4.1 of clause 4, Hourly Rates.  If the contract carrier is asked by the contractor to remain on-site during site preparation, the contract carrier will be paid waiting time at the same hourly rates.

 

3.6      Loading Time -

 

3.6.1   When loading time, being from the time of arrival on-site by the contract carrier to the time of departure from site, exceeds ten minutes, the excess time shall be compensated for at the hourly rates referred to in the said subclause 4.1.

 

3.6.2   This paragraph does not apply to the commencement of the day's work or to the recommencement of work after the meal break.

 

3.7      Delays - All time spent by the contract carrier on the sites at the instruction of contractors will be paid for at the hourly rate referred to in subclause 4.1.

 

4.  Hourly Rates

 

4.1      For each hour the contract carrier spends carrying excavated and demolition material (including returning to a site unloaded), the contract carrier will be paid the hourly rate in Item 6 of Part B, Rates of Remuneration.

 

4.2      In addition to the rates payable under subclause 4.1 of this clause, the contract carrier will be paid the rate in Item 6A of the said Part B for every cubic metre (or part thereof) carried in excess of the truck's minimum capacity as specified in subclause 7.1 of clause 7, Suitable Vehicle and Loading.

 

4.3      Travelling Time — The contract carrier will be paid one hour travelling time at the hourly rate referred to in subclause 4.1.

 

4.4      Wet Weather — When the contract carrier is prevented from commencing work by wet weather no payments shall be made, except for the payment of one hour travelling time as per subclause 4.2 of the said clause 4.  This also applies to work suspended owing to wet weather.

 

4.5      Delays — All time spent by the contract carrier on the sites at the instruction of contractors will be paid for at the hourly rate referred to in subclause 4.1.

 

5.  Other Rates

 

5.1      Should the Contractor Direct the Contract Carrier to Alternative Work, then the contractor shall pay to the contract carrier travelling time in the manner provided by subclause 4.2 of clause 4, Hourly Rates.

 

6.  Payments Included in the Rates

 

Both the kilometre rates and the hourly rates have been calculated to include the following payments:

 

20 days annual leave;

 

five days leave loading;

 

all public holidays as provided for by applicable legislation;

 

34.8 hours long service leave per annum;

 

64 hours sick leave per annum; and

 

rostered industry day off

 

7.  Suitable Vehicle and Loading

 

7.1      The contract carrier shall supply a vehicle with a minimum body size of the appropriate capacity specified below:

 

Truck Type	Loading Capacity
(No. of Axles)	(Cubic Metres)
Two-axle Trucks	5.78
Three-axle Trucks	9
Four-axle Trucks	10.93
Five-axle Trucks (Articulated)	17
Six-axle Trucks (Articulated)	19
Seven-axle Trucks (Articulated)	21.93

 

7.2      In other respects, the contract carrier will supply and keep serviceable a vehicle that is suitable to the contractor.  The contract carrier will obtain the approval of the contractor as to the type and condition of the vehicle before it is brought into service.

 

7.3      Loading - All reasonable efforts shall be taken by the contractor and the contract carrier not to overload any contract carrier's vehicle.

 

8.  Minimum Hire

 

8.1      When contract carriers engaged on hourly or kilometre rates are prevented from working for reasons other than wet weather, a minimum of four hours at the hourly rate referred to in subclause 4.1 of clause 4, Hourly Rates, plus one hour paid travelling time, as provided for in subclause 4.2 of the said clause 4, will be paid to the contract carrier;  provided if for work performed a higher amount would be payable if the kilometre rates in clause 3, Kilometre Rates, were applied, then that higher amount will be paid to the contract carrier.

 

8.2      The payment of the minimum hire is on the condition that the contract carrier is not given alternative work by the original contractor who engaged the contract carrier for that day.

 

9.  Personnel

 

9.1      The contract carrier shall not employ any persons without prior approval being obtained from the contractor.

 

9.2      Drivers employed by contract carriers pursuant to clause 8.1 - Minimum Hire, must be employed at least under the minimum terms and conditions (whether governed by legislation or industrial instrument) that apply to the driver’s employment.

 

10.  Insurance

 

10.1    The contract carrier must, in all circumstances, be covered by the following insurance policies:

 

Motor Vehicle Third Party (Personal);

Motor Vehicle Third Party (Property); and

workers' compensation, where required by law;

personal sickness and accident;

public risk liability.

 

The contract carrier will obtain and bear the expense of the above insurance policies.

 

10.2.   the insurance policies referred to in subclause 10.1 of this clause are to be submitted to the contractor for perusal and return prior to the commencement of work at any site.  The contractor shall keep such copies of these insurance policies as is necessary to prove their currency upon request by the Union.  The contractor shall not allow any Contract Carrier who does not have such insurance policies current to commence work.  The Contractor shall request further perusal of the policies thereafter at regular intervals and may do so at any time. The policies are to be renewed whenever required so that they remain current at all times.

 

11.  Cartage Records

 

The contract carrier is required to undertake to prepare their accounts according to the reasonable requirements of the contractor to whom they are contracted and to submit these accounts to the contractor every seven days, or as requested.

 

12.  Payment of Accounts

 

12.1    The contractor is required to pay accounts for work performed pursuant to this determination within 14 days of the end of the month in which the work was done.

 

12.2    The contractor shall reimburse the contract carrier for all bridge/expressway tolls and like charges incurred as a result of such contract carrier in the performance of work for the contractor following a route nominated or approved by the contractor.

 

13.  Settlement of Disputes

 

13.1    It is understood and accepted by all parties to this determination that work shall continue normally while the settlement of disputes procedure provided for in this clause is followed.

 

13.2    The procedure of the settlement of disputes will be as follows:

 

13.2.1 When there is a disagreement, the contract carrier shall attempt to resolve the matter by negotiating with the contractor or a representative of the contractor on-site.

 

13.2.2 Where the matter remains unresolved, the union delegate or representative on-site will attempt to resolve the matter by negotiating with the contractor or a representative of the contractor on-site.

 

13.2.3 If the matter remains unresolved, it shall then be discussed between an official of the union or any other person authorised to represent the union and the contractor, who may be accompanied or represented by officers or representatives of any association of employing contractors or other employer association of which the contractor is a member.

 

13.2.4 If the matter remains unresolved, notification may be made to the Industrial Relations Commission of New South Wales by either party under the terms of the Act.

 

14.  Double Booking

 

Contract carriers who accept two or more jobs and who thereby fail to fulfil their obligations to at least one job, causing extensive costs for individual contractors in idle equipment and labour, shall be reported to the union which shall, after investigating the circumstances of the matter, take action against such contract carrier.

 

15.  Breakdowns

 

The contractor shall not be responsible for any loss incurred by the contract carrier resulting from breakdowns of vehicles.  Vehicles that continually break down must be replaced by the contract carrier in accordance with subclause 7.2 of clause 7, Suitable Vehicle and Loading.

 

16.  Delays

 

Delays on sites beyond the control of the contractor (e.g., late arrivals of employees or plant breakdowns) shall not attract any penalty payment for the contract carrier.

 

17.  Meal Breaks

 

Contract carriers shall take their meal breaks at the same time as employees on the site to which they are contracted.  Only one half hour meal break per shift is to be taken by the contract carrier.

 

18.  Role of the Union

 

The role of the Transport Workers' Union of Australia, New South Wales Branch, and its Tip Truck Section, as the representative of the industrial interests of contract carriers, is recognised by the parties to this determination.

 

19.  Adjustment of Rates

 

The rates as set out in Part B - Rates of Remuneration, shall be adjusted every 12 months in accordance with the cartage rate formula as set out in Part C - Rise and Fall Formula.

 

20.  Superannuation

 

All contract carriers will have a current superannuation policy into which are paid, by the contract carrier, payments at least equal to current statutory or award superannuation entitlements applicable to an employee driving the same class of vehicle as that driven by the contract carrier.  Proof of this superannuation policy is to be submitted to the contractor for perusal and return prior to the commencement of work at any site.  The contractor may request further perusal of the proof of the policy thereafter at any time.

 

21.  Area, Incidence and Duration

 

This determination applies to all contracts of carriage of excavated and demolition material and to all contractors and contract carriers engaged in or in connection with such work in the State of New South Wales, provided that it will not apply to persons covered by the former Industrial Agreement No. 7743, between the union and the Roads and Traffic Authority, or any agreement succeeding or replacing that agreement.

 

This determination rescinds and replaces the Transport Industry - Excavated Materials Contract Determination published 24 October 1997 (301 I.G. 1082), as varied. It shall commence on and from 1 March 2019. This determination shall remain in force thereafter for a period of three years.

 

PART B

 

Rates of Remuneration

 

1.        This Part applies to all Contracts of Carriage performed on or after 1 March 2023

 

Item	2 Axles ($)	3 Axles ($)	4 Axles ($)	5 Axles ($)	6 Axles ($)	6 Axles (48t) ($)	7 Axles ($)	PBS T&D ($)
1. Loading Rate	20.762	32.328	39.264	46.717	50.309	53.887	54.661	58.239
1A. Extra Capacity (per cubic metre)	3.578	3.578	3.578	3.578	3.578	x	3.578	x
2. Kilometre Rate (0-8 Km)	5.221	8.134	9.877	11.753	12.654	13.554	13.751	14.652
2A. Extra Capacity (per cubic metre)	0.901	0.901	0.901	0.901	0.901	x	0.901	x
3. Kilometre Rate (over 8 - 25 km)	4.831	7.524	9.141	10.874	11.714	12.548	12.727	13.561
3A. Extra Capacity (per cubic metre)	0.834	0.834	0.834	0.834	0.834	x	0.834	x
4. Kilometre Rate (over 25 km)	3.800	3.800	3.800	3.800	3.800	4.574	3.800	4.574
4A. Extra Capacity (per cubic metre)	0.774	0.774	0.774	0.774	0.774	x	0.774	x
6. Hourly Rate	68.072	105.996	128.782	153.109	164.891	176.666	187.622	199.397
6A. Extra Capacity (per cubic metre)	11.775	11.775	11.775	11.775	11.775	x	11.775	x

 

PART C

 

Rise and Fall Formula

 

1.        The rates prescribed in Part B may be adjusted each year upon application to the Industrial Relations Commission of New South Wales.

 

2.        Application for adjustment shall be made by reference to the weighted movement in the following benchmarks for each cost component, calculated as at the end of the full quarter immediately preceding the variation, with each adjustment application based upon the rates and amounts in the immediately preceding variation.

 

Component Current	Benchmark	Current Index	Weighting
Wages	Road Transport and Distribution Award 2010, Grade Three Transport Worker	$889.10	35.18
Capital	ABS Consumer Price Index (CPI), Motor Vehicles, Australia	107.3	19.07
Insurances	ABS CPI, Insurance, Australia	145.1	5.95
Registration	ABS CPI, Transportation Group, Other Services in respect of motor vehicles	137.5	3.30
Repairs & Maintenance	ABS CPI, Transportation Group, Maintenance and Repair of Motor and Repair of motor vehicles	128	18.27
Tyres	ABS CPI, Transportation Group, Spare Parts and Accessories for motor vehicles	128	4.97
Fuel AIP NSW State	Average for the Retail Price of diesel (excluding GST), calculated by determining the average of the weekly figures between the end of the quarter relating to the last variation and the end of the quarter prior to any new variation.	120.97	9.78
Administration	ABS CPI, All Groups, Sydney	128.6	3.47
Total			100

 

3.        If the cost components, excepting fuel, change such that it causes an increase in the total remuneration of 2 percent or more from the date of the last variation, an interim adjustment may be made. An application to vary rates of remuneration for changes in the price of fuel may be made at any time, provided that the date upon which any rate adjustment is sought to become operative is at least one calendar month after the last occasion upon which a fuel rate adjustment became operative.

 

4.        Each cost component will be re-weighed after each adjustment.

 

5.        Parties to this Determination will confer with a view to reaching agreement on any application for adjustment on any application for adjustment. In the absence of agreement the rates and amounts shall be determined by the IRC.

 

6.        Notwithstanding anything contained in this Part, a variation shall not be retrospective in operation but shall operate from a date not earlier than the date upon which it is made.

 

PART D

 

Temporary Fuel Levy

 

APPLICATION

 

1.        This Part applies to all Contracts of Carriage performed on or after 1 March 2023.

 

BACKGROUND

 

2.        This Part was introduced by the IRC in Matter No. 2022/174729 as a temporary measure to respond to significant fluctuations in the price of fuel and the temporary inability for Contract Carriers to claim fuel tax credits.

 

THE SURCHARGE

 

3.        In addition to all other amounts set out in this Determination, a Principal Contractor must pay a Contract Carrier an additional amount (the Temporary Fuel Levy).

 

4.        The Temporary Fuel Levy shall be paid as a percentage of the total amounts payable to the Contract Carrier under this Determination.

 

5.        For Contracts of Carriage performed on or after 1 March 2023, the Temporary Fuel Levy shall be 6.4%.

 

REVIEW

 

6.        The Temporary Fuel Levy shall be reviewed on a monthly basis, subject to an application being made to the IRC.

 

7.        The Temporary Fuel Levy shall be calculated by applying the following formula:

 

((x-y) / y) * z

 

where:

 

x = 200.07 (being the mean of all weekly retail diesel prices (NSW State Average) published by the Australian Institute of Petroleum for weeks ending in the prior calendar month, in cents, exclusive of GST;

 

y = 120.97 (being the current index price of fuel as set out in part C of the Determination); and

 

z = 0.0978, (being the weighting applied to the fuel component as set out in part C of the Determination); and

 

9.        The Temporary Fuel Levy shall be rounded to one decimal place.

 

10.      Parties seeking a variation to the Temporary Fuel Levy shall make an application to the IRC by the second Monday of the relevant calendar month.

 

11.      The revised Temporary Fuel Levy will apply from the first day of the following calendar month.

 

12.      As the Temporary Fuel Levy responds to fluctuations in fuel prices, it may increase or decrease from time to time.

 

OTHER PROVISIONS

 

13.      The Temporary Fuel Levy may be offset by any payments made to a Contract Carrier in excess of the amounts prescribed elsewhere in this Determination.

 

14.      Leave is reserved for any party to apply to vary the operation of this Part in circumstances where the Principal Contractor:

 

a.        provides the Contract Carrier with fuel, either for free or at a cost below the prevailing market rate;

 

b.        directly reimburses the Contract Carrier for some or all of their fuel costs; or

 

c.        otherwise compensates the Contract Carrier for their fuel costs.

 

 

 

____________________

 

 

Printed by the authority of the Industrial Registrar.