COURIERS PLEASE PTY LTD CONTRACT DETERMINATION
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Notification under section 332 by Transport Workers' Union of Australia, New South Wales Branch, of a dispute
with Courier Please re alleged breach of dispute procedures.
(No. IRC 4667 of 2001)
|
Before Commissioner
Connor
|
13 March 2003
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DETERMINATION
Clause No. Subject Matter
1. Definitions
2. Area,
Incidence and Duration
3. Consultation
Required before Exercising Contractual Rights
4. Other
Responsibilities of the Principal Contractor and Contract Carrier
5. Dispute
Procedure
6. Sale of
Run
1. Definitions
In this Contract Determination, unless otherwise required by
the context:
"Act" means the Industrial Relations Act1996.
"Courier Contract" means the individual contract
between each of the Contract Carriers and the Principal Contractor tendered and
marked as an exhibit in these proceedings.
"Contract Carrier" means a carrier engaged by the
Principal Contractor.
"Contract of Carriage" has the meaning given to
that expression by the Act.
"Principal Contractor" means Couriers Please Pty
Ltd (ACN 006 144 734).
"Shuttle Driver Contract" means the individual
contract between each of the Contract Carriers and the Principal Contractor
tendered and marked as an exhibit in these proceedings.
"Union" means the Transport Workers' Union of New
South Wales (registered under the Act as an Association of contract carriers).
Words importing the singular numbers shall include the
plural number and vice versa.
Words importing the masculine gender shall include the
female gender and words importing persons shall include corporations.
2. Area, Incidence
and Duration
2.1 The contract
determination shall operate in respect of all contracts of carriage between the
Principal Contractor and Contract Carriers performed within the state of New
South Wales.
2.2 The contract
determination shall be read in conjunction with the Courier Contract and the
Shuttle Driver Contract ("the Contracts"). Where there is any inconsistency between this contract
determination and the Contracts this contract determination shall apply.
2.3 This contract
determination exempts the Principal Contractor from the operation of the
following contract determinations, or any such other contract determination
that might otherwise apply, as from time to time amended:
(a) Transport
Industry - General Carriers Contract Determination.
(b) Transport
Industry - Courier and Taxi Truck Contract Determination.
(c) Transport
Industry - Excavated Materials, Contract Determination.
(d) Transport
Industry - Quarried Materials, &c., Carriers Contract Determination.
(e) Transport Industry
- Car Carriers (NSW) Contract Determination.
(f) Transport
Industry - Waste Collection and Recycling Contract Determination.
(g) Transport
Industry - Courier and Taxi Truck (Superannuation) Contract Determination.
(h) Transport
Industry - Interstate Carriers Contract Determination.
2.4 This contract
determination shall operate on and from 13 March 2003 and shall have a nominal
term of three years.
3. Consultation
Required Before Exercising Contractual Rights
The Principal Contractor will consult with the Union in
relation to affected Contract Carriers who are Union members, and will consult
with affected Contract Carriers who are not Union members, before:
3.1 exercising its
rights under clause 1.1.6 of the Courier Contract and/or clause 1.1.5 of the
Shuttle Driver Contract (concerning the Principal Contractor declaring things
to be services);
3.2 exercising its
rights under clause 2.3.3 of the Courier Contract and/or clause 2.3.2 of the
Shuttle Driver Contract (concerning changes to boundaries under the Courier
Contract and changes to the locations of termini under the Shuttle Driver
Contract);
3.3 requiring
Contract Carriers to pick up or deliver freight for a customer at a rate which
is lower than the normal rates under clause 3.4 of the Courier Contract as a
result of the Principal Contractor negotiating that lower rate with that
customer;
3.4 designating
additional items under clause 6.4.4. (a) of the Courier Contract and/or clause
6.4.5 (a) of the Shuttle Driver Contract (concerning items for which the
Contract Carriers must reimburse the Principal Contractor.
3.5 exercising its
rights to introduce any new communications system for which the Contract
Carriers must reimburse the Principal Contractor under clause 6.4.4 (f) of the
Courier Contract;
3.6 exercising its
rights to introduce any new linehaul or shorthaul services for which the
Contract Carriers must reimburse the Principal Contractor under clause 6.4.4(1)
of the Courier Contract.
4. Other Responsibilities
of the Principal Contractor and Contract Carrier
4.1 The Principal
Contractor will exercise its rights under clause 6.3 of any Contract only where
there has been a significant or repeated breach of the rules or instructions.
4.2 The Principal
Contractor will, if practical, seek that a Contract Carrier rectify a breach of
the contract before seeking reimbursement under clause 6.4.4(h) of the Courier
Contract and/or clause 6.4.5(e) of the Shuttle Driver Contract.
4.3 Contract
Carriers must scan customer generated bar codes as coupons, as and when
required to do so.
5. Dispute Procedure
Any dispute, difficulty or question arising between the
parties to this determination, except for any dispute, difficulty or question
arising in connection with clause 3.2 of the Courier Contract, or clause 9.5 of
any Contract, shall be dealt with in the following manner:
5.1 Affected
Contract Carriers, and at his/her/their request, the representative of the
Union on the job, shall negotiated with the Principal Contractor or the
Principal Contractor's nominated representative.
5.2 If the
question, dispute or difficulty is not resolved, either party may refer the
matter to an Organiser, or other Official of the Union, who may, either
personally or by nominated representative, endeavour to negotiate a settlement
on the question, dispute or difficulty,.
5.3 If
negotiations contemplated in subclauses 5.1 and 5.2 above are unsuccessful, the
parties may notify the dispute in accordance with the Act, or take the matter
to such other person or body as may be agreed by the parties concerned to act
as arbitrator.
This disputes procedure will apply to the exclusion of
clause 12.5 of the Courier Contract and clause 11.5 of the Shuttle Driver
Contract.
6. Sale of Run
If a Contract Carrier ("Seller") sells his or her
run ("Run"), then for a period of 12 months after the date the sale
takes effect ("Sale Date"), the Seller must not within the
geographical area of the Run:
(a) engage or
prepare to engage in any business or activity which is the same as,
substantially similar to or competitive with the Business; or
(b) solicit,
canvass, approach or accept any approach from any Customer with a view to obtaining
the custom of the Customer in a business that is the same, similar or
competitive with the Business; or
(c) interfere with
the relationship between the buyer and its Customers in the Run; where
"Business" means the business of providing
courier services in relation to the Run.
"Customer" means any person who was a
customer of the Seller in relation to the Run at any time during the 12 months
prior to the Sale Date.
"Engage in" means to participate, assist or
otherwise be directly or indirectly involved including as a member,
shareholder, unitholder, director, consultant, adviser, contractor, principal,
agent, manager, employee, beneficiary, partner, associate, trustee or
financier.
This clause does not apply for work within the geographical
area of the Run performed as an employee or contract carrier for an existing
transport business (other than a business owned or substantially owned by the
Contract Carrier) where such work is merely an incidental part of the person's
engagement.
P. J. CONNOR, Commissioner.
____________________
Printed by
the authority of the Industrial Registrar.