Boral Country - Concrete and Quarries Contract
Determination
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Application by Boral Resources (NSW) Pty Ltd.
(No. IRC 662 of 2014)
|
Before Commissioner Newall
|
18 September 2014
|
DETERMINATION
1. Index
Clause No. Subject
Matter
1. Index
2 Preamble
3. Definitions
4. Cartage
Rates
5. Payments
Provided for in the Rates
6. Haulage
Area, Cartage Zones and Transfer
7. Living
Away From Home
8. Loading
9. Haulage
Accounts
10. Delivery
of Products
11. Breakdowns
12. Size of
Load
13. Hazardous
Approach to Job Site
14. Availability
of a Suitable Vehicle
15. Communication
Equipment
16. Mixer Care
and Maintenance
17. Provision
of a Mixer
18. Painting and/or
Sign writing of Mobile Unit
19. Renegotiation
20. Substitute
Driver
21. Uniforms
22. Purchase
of Product or Goods
23. Insurance
24. Amenities
25. Dispute
Procedure
26. Rates and
Other Monetary Amounts
27. Minimum
Earnings Guarantee
28. Union and
Delegates
29. Meetings
30. Sunday and
Public Holiday Work
31. Area
Incidence and Duration
Schedule A - Regional Flag Fall
Schedule B - Variation of Rates
Schedule C - Productivity Bonus
2. Preamble
2.1 Boral's intent
in operating under this Contract Determination is to:
(i) apply
the benefits of utilisation based competitive rates to competitive advantage to
maintain Boral's market share in country NSW and in key regional markets more
specifically; and
(ii) not reduce the available volume of cartage to Carriers as a
consequence of this Contract Determination.
3. Definitions
For the purposes of this Contract Determination the
following terms shall bear the meanings:
3.1 "The
Act" shall mean the Industrial Relations Act 1996.
3.2 "Carrier"
shall mean a company engaged by Boral to perform contracts of carriage as
defined in section 309 of the Act.
3.3 "Boral"
shall mean Boral Resources (Country) Pty Limited it
successors, assignees and transmitees.
3.4 "Union"
shall mean the Transport Workers’ Union of New South Wales (registered under
the Act as an Association of Contract Carriers).
3.5 "Product"
shall mean pre-mixed concrete or batched materials.
3.6 "Cartage
work" shall mean the mixing and carriage of product in the mixer (and
everything connected with it) by the Carrier as and when required by Boral.
3.7 "Communication
equipment" shall mean a two-way radio, satellite tracking equipment etc.
3.8 "Such
terms" (refer clause 23.1) shall mean that:
(a) each insurance
policy covers such risks and contains such conditions, endorsements and
exclusions as are reasonably acceptable to or reasonably required by Boral; and
(b) (unless Boral agrees otherwise or unless any relevant law
precludes this) Boral is named as principal for its respective rights and
interests and for the purposes of a cross liabilities clause as permitted by
law.
3.9 "Total
working days" means all days (Monday to Saturday) that a Carrier is
required to perform cartage work in accordance with this Contract
Determination.
4. Cartage Rates
4.1
(a) Carriers shall
be paid:
(i) (A)
per cubic metre regional flag fall up to 3km; and
(ii) (B) per cubic
metre per kilometre thereafter (part kilometres rounded up to the nearest whole
kilometre) that the load is carried.
(b) The rates set
out in this Contract Determination shall be varied in accordance with the
provisions of Schedule "A" and "B".
Notation: refer to clause 26 for the amounts referred
to in this clause by way of a capital letter.
Notation: the cartage rates arising from this clause
are exclusive of GST.
4.2 Minimum Load -
A Carrier shall be guaranteed a minimum load of 3 cubic metres or a minimum
payment on the basis of 3 cubic metres.
4.3 Mixing in the
Yard - A fee of (A) shall be paid to mix and discharge product into a
customer’s vehicle for transport from the plant. A Carrier shall be guaranteed
a minimum load of 3 cubic metres or a minimum payment on the basis of 3 cubic
metres.
4.4 Penalty Rates
and Stand By -
(a) Surcharges per
load shall be payable in respect of product delivered which is loaded:
|
Between 4.30pm to 5.59am Monday to Friday inclusive
|
(D)
|
|
On a Saturday outside of the spread of 6.00am to 1.00pm
inclusive
|
(D)
|
|
|
|
|
On a Sunday
|
(E)
|
|
On a Public Holiday
|
(E)
|
(b) Whenever a
Carrier is required to attend at a plant during the times set out in (a) above
they shall be paid 50% of (D) for each completed half hour after the initial
half hour where no load is received or after the Carrier returns to the plant
from the preceding load.
4.5 Hourly Hire -
where a Carrier is requested by Boral (and the Carrier agrees) to perform
cartage work on site on hourly hire, (C) per minute which will be payable from
the requested start time to finish time calculated to the nearest whole minute.
4.6 Boral shall
reimburse a Carrier on provision of a receipt (which may include an e-tag
receipt or monthly account statement) for all road and bridge tolls paid when
performing the cartage work on the route directed by Boral.
4.7 Diverted Loads
-
(a) Direct
Diversion - Where a load is diverted enroute a
Carrier shall be paid normal cartage rates covering the total distance
travelled from initial departure from the plant to the ultimate delivery point
of the load.
(i) Return to Plant and Divert - It is
thereafter treated as a new load.
(ii) Return to
Plant and Subsequently Dumped Outside Plant - where
Boral directs any quantity of left over product that has been agitated in the
yard to be taken to another site and dumped, payment shall be made at the rate
of (B) per kilometre with a minimum of 3 cubic metres and a 3 kilometre
minimum.
4.8 Multiple
Discharge Points -
(a) Same Customer
- Payment for haulage covers the total distance travelled until delivery is
completed. Unloading time will commence
from the start of unloading at the first point and will continue until the
final completion of unloading when drops are within one kilometre. Over one kilometre, the total of the
additional kilometres travelled will be added to the ticket and paid as if the
original load was carried for the entire distance.
(b) Multiple
Customers - Each delivery will be treated for the purpose of payment of cartage
as if a separate delivery had been made from the plant to each delivery point.
4.9 Left Over
Product -
(a) All product remains the property of Boral and accordingly Boral
reserves the right to direct where product is to be taken or if and where it is
to be dumped. The Carrier shall contact
the plant for instructions as soon as possible.
(b) No payment
shall be made when product is dumped in the vicinity of the job site.
(c) When 1 cubic metres or more of product are left over from a job, return
cartage shall be paid at the rate of (B) per kilometre per cubic metre.
When less than 1 cubic metre is returned in one and
only one of the following circumstances:
(i) where the load is rejected because of product fault;
(ii) where the load taken out is not required;
(iii) when a truck is used to dispose of left over product, such
as a result of a pump line blow-back; or
(iv) when the product is not returned to the "source"
plant, a 3 cubic minimum shall apply.
4.10 Subject to the
Carrier using their best endeavours to comply with any procedure provided to
them by Boral for the recording of waiting time the Carrier will be paid at the
rate of (C) per minute in excess of 30 minutes waiting to complete the
discharge of the load calculated as the time between the Carrier arriving at
the delivery site set out on the delivery docket and the time taken to complete
the discharge of the load.
4.11 If a Carrier is:
(a) recalled to perform cartage work after being rostered off
for the day (whether notified before or after leaving); or
(b) called in on a Sunday or Public Holiday; and
(c) fails
to cart at least four loads,
they shall be paid a call out
fee of (G) and paid for any loads carted.
5. Payments
Provided for in the Rates
5.1 All benefits
and entitlements however arising in law are provided for in the rates and
surcharges set out in this Contract Determination.
6. Haulage Area,
Cartage Zones and Transfer Fees
6.1 Subject to
clause 6.2, 6.3 and 6.5 hereof a Carrier shall haul product as required from
Boral’s plants. A Carrier shall normally
perform cartage work for a period of time from a nominated plant or other
plants in accordance with the requirements of Boral.
6.2 When a Carrier
is transferred to a plant:
(a) with a load carried for at least half the distance no
transfer fee shall apply; or
(b) without a load a transfer fee shall apply at the rate in (F)
per kilometre travelled.
Notation: for the purpose of payment under this clause
the transfer and any return transfer shall be treated separately.
6.3 The right referred
to in 6.1 shall not extend to a situation where a Carrier would need to change
their residential domicile as a consequence of changing their nominated plant.
6.4 Subject to
Boral’s approval:
(a) (which shall not be unreasonably withheld having regard to
its commercial needs) a Carrier may agree to swap their nominated plant with
another Carrier; or
(b) (which may be withheld in Boral’s complete discretion) a
Carrier may agree to swap their nominated plant with a driver of a company
vehicle.
6.5 Boral may
direct a Carrier to haul product from a plant other than the Carrier’s
nominated plant (referred to in clause 6.1 as "other plants") in
circumstances where clause 7 applies provided that:
(a) such direction cannot require the Carrier to haul product
from the other plant for a continuous period
in excess of one month (the transfer period) without the consent of the
Carrier;
(b) the Carrier is paid a transfer fee to and from the other
plant (once only for the transfer period); and
(c) (if the transfer period includes weekends) the Carrier may
return home (and then return to the other plant) on weekends at times when they
are not required to perform cartage work at their own expense and in their own
time.
7. Living Away
from Home Allowance
7.1 A Carrier
engaged on cartage work which precludes them from reaching their usual place of
residence at night shall upon presentation of receipts be reimbursed for
reasonable expenses incurred at approved motel style accommodation. Reasonable
expenses are:
(a) a room, breakfast and an evening meal; or
(b) a room with kitchen facilities.
8. Loading
8.1 Despite
anything else in this Contract Determination, Boral may preferentially load Carrier
vehicles and/or its own vehicles in order to meet customer preferences or
requests associated with the carrying capacity of a vehicle. For the avoidance
of doubt, Boral’s ability to preferentially load Carrier vehicles and/or its
own vehicles may be exercised in circumstances including (but not limited to):
(a) the cartage of a single load;
(b) vehicles with returned concrete (where it is impractical due
to facility or time constraints to transfer the returned concrete to the next
vehicle in line);
(c) where a load or series of loads may exceed the legal carrying capacity of particular
vehicles; or
(d) where customers have requested cartage work to be undertaken
by particular vehicles in order to satisfy their requirements, restrictions or
limitations.
9. Haulage
Accounts
9.1 A Carrier shall
prepare their accounts according to the requirements of Boral.
9.2 Haulage
accounts shall be paid on the following basis:
(a) cartage earnings shall be calculated twice monthly and paid
within ten days of the last day of the period; and
(b) payment will be by electronic funds transfer into a Carriers
nominated bank account.
9.3 Account
discrepancies relating to the immediately preceding pay period shall be settled
promptly and in no case later than 14 days from the date of submission by a
Carrier. Account discrepancies relating to other than the immediately preceding
pay period shall be settled as soon as practicable. Where following settlement
of an account discrepancy an adjustment to payments is required, such
adjustment shall be made in the pay period following settlement.
10. Loading and
Delivery of Products
10.1 Subject to
clause 8, a Carrier shall report ready, willing and able (with their vehicle)
at the times and plants that Boral directs and shall:
(a) receive their first load on the basis of a rotating start
roster; and
(b) be loaded in the sequence of their return to the plant.
Notation: Subject to clause 8, and to avoid any doubt Boral
will load its own vehicles in accordance with this clause.
10.2 A Carrier shall
ensure that the load is properly mixed according to Boral's practice and that
the slump of the product on arrival at the discharge point is in accordance
with limits of the appropriate Australian Standard Specification as provided to
a Carrier by Boral. The mixer drum must
be kept turning at all times when it contains product.
10.3 A Carrier shall
visually inspect each load prior to leaving the yard and shall advise Boral of
any apparent unusual features of the load which may have occurred due to
batching error, plant failure or contamination.
10.4 When a load is
rejected at a job site because of failure to slump correctly and/or failure to
visually inspect the load prior to leaving the yard, a Carrier will not be paid
the cartage.
10.5 At the job site
a Carrier shall make every reasonable endeavour to obtain signatures from the
customer as required by Boral.
10.6 A Carrier shall
make every endeavour to collect money from COD customers for all product
charges, including waiting time. All
monies collected shall be submitted in full (as soon as possible) to the Plant
Manager or Allocator, who shall issue a Carrier with a receipt.
10.7 A Carrier shall
immediately advise Boral where practicable by the two-way radio or telephone,
where a two-way radio is not provided, when a COD payment is not collected or
dispute arises between a Carrier and the customer.
10.8 Where a load is
dumped, a Carrier shall not be liable to compensate Boral unless the loss
occurred as a direct result of his negligence or misconduct. Where such a liability does exist, Boral
shall charge a Carrier for the product at material cost and cartage shall not
be paid.
10.9 Boral may direct
a Carrier to load out of a plant other than a Boral plant (e.g. a related body
corporate of Boral, Hanson, Holcim etc) then:
(a) where relevant in this clause, a reference in this clause to
"Boral" shall be taken to be a reference to the company that operates
the other plant;
(b) a Carrier shall satisfactorily complete any additional paper
work required; and
(c) a Carrier shall be paid by Boral according to the rates in
this Contract Determination.
10.10 The initial starting
time and plant (and whether no cartage work is available) shall be notified to
each Carrier by Boral before the close of business on the previous working day.
10.11 A Carrier shall
take all care with but shall not have ultimate responsibility for the slump of
‘kerb mix’ if carted as batched without any water added. If such ‘kerb mix’ is then rejected by the
customer a Carrier shall still be paid for the load at the rate of (B) per
cubic metre per kilometre travelled with a 3 kilometre minimum back to the
plant.
10.12 When, during a
working day, Boral assess that they have more vehicles at a plant than are
required to finish the cartage work on that day Boral will:
(a) roster
off any vehicles transferred into that plant; and then
(b) allow any further excess vehicles to cease performing
cartage work.
10.13 Boral will use its
reasonable endeavours to accurately assess the number of vehicles it requires
for cartage work at a plant on a Sunday or Public Holiday and only call that
number of vehicles in and only retain them as needed.
11. Breakdowns
11.1 Boral shall not
be responsible for any loss resulting from breakdowns of plant (unless caused
by Boral’s negligence), mixers (unless caused by Boral’s negligence) or
vehicles.
11.2 A Carrier shall
initially assist in every possible way to remove the product from the mixer
when a breakdown of the mixer or Carrier's vehicle occurs under load.
12. Size of Load
12.1 Boral has the
right to nominate the load size and a Carrier has the right to refuse a load
that is beyond the legal capacity of their vehicle or the rated capacity of the
mixer.
12.2 Each Carrier
shall be loaded to the maximum legal capacity whenever operationally
practicable.
13. Hazardous
Approach to Job Site
13.1 If the discharging
of the load at any delivery site is unsafe for any reason, a Carrier shall
immediately notify Boral prior to discharging the load.
13.2 A Carrier shall
have the right to refuse to enter upon ground which he considers unsafe. Boral shall have the right to refuse payment
for cartage where the option is used without reasonable justification.
13.3 Where a Carrier
goes "beyond the kerb" to complete a delivery and their vehicle
becomes bogged or is otherwise rendered inoperative as a consequence of such
attempted delivery he shall be given every reasonable assistance by Boral, who
shall compensate a Carrier for any costs the Carrier has reasonably
incurred in engaging outside equipment
to extricate the vehicle.
Provided further that the reimbursement
provision shall not apply where the vehicle becomes inoperative as a direct
result of a Carrier's negligence.
13.4 Boral will
ensure that any salvage contractor they select is covered by appropriate
insurance policies to rectify any damage that the salvage contractor may cause
a Carrier’s vehicle during the extraction process.
14. Availability
of a Suitable Vehicle
14.1 A Carrier shall
on each working day (unless Boral advises that cartage work is not available)
supply, ‘man’, operate and keep serviceable a prime mover that meets the
requirements of any vehicle specification set out in the Carrier’s Head
Contract.
14.2 No vehicle shall
be brought into service without the prior consent of Boral.
14.3 A defective
vehicle shall be repaired as soon as practicable.
14.4 Where a Carrier
is unable to report for work with their vehicle they shall arrange for Boral to
be immediately informed of the reason and the anticipated period of absence.
14.5 A Carrier shall
keep their vehicle clean and tidy and in presentable condition to the
reasonable satisfaction of Boral.
15. Communication
Equipment
15.1 A Carrier shall
agree to the installation of communication equipment on their vehicle. All such equipment shall be installed by
Boral's approved technician and such installation shall be of a professional
standard. The installation shall include
all necessary equipment, and the complete installation shall be undertaken at
no cost to a Carrier. When such
communication equipment is removed (while the Carrier continues to be engaged
by Boral) Boral will make good the bodywork.
15.2 A Carrier shall
take due care to ensure adequate protection of the equipment.
15.3 The equipment is
to be operated and appropriate procedures are to be followed as laid down by Boral.
15.4 Boral shall be
responsible for the maintenance of the communication equipment.
16. Mixer Care and
Maintenance
16.1 Boral’s mixer is
in the care of a Carrier who shall keep the unit clean and tidy to the
reasonable satisfaction of Boral.
16.2 A Carrier
undertakes to exercise all possible care for the mixer. The mixer shall be
thoroughly washed out and cleaned down during and after each day's cartage work
and surfaces treated as required in preparation for the next day's cartage
work. All cleaning materials shall be supplied by Boral.
16.3 A Carrier shall
report all repair or maintenance requirements following the procedures laid
down by Boral.
16.4 A Carrier shall
convey the mixer to the workshop for repair or maintenance as requested by Boral.
The Carrier shall be paid the rate (F) per kilometre for transfer to the
workshop and return.
16.5 A Carrier shall
be responsible for all minor maintenance to the satisfaction of Boral, such as
topping up oil and greasing.
16.6 Boral shall be
responsible for major maintenance.
16.7 A Carrier is
responsible for the provision of fuel.
16.8 Boral is
responsible for the provision of oil and grease for the mixer.
16.9 Boral's
equipment is to be parked only in places approved by Boral. A Carrier is not responsible for any loss or
damage to Boral's equipment when so parked.
16.10 (a) It is the
Carrier’s responsibility to inform Boral if concrete build up impedes the
carrying capacity and/or mixing efficiency.
(b) Subject
to clause 16.10 (a), Boral shall be responsible for the removal of hardened
concrete build up from the
inside of the mixer (a process commonly known as de‑dagging) for the
first two occasions in a calendar year,
provided that if a Carrier’s mixer requires de‑dagging more than twice in a calendar year, the Carrier
shall be responsible for such de‑dagging unless in the period since the last de‑dagging
the Carrier carted more than 30% of their loads in low slump concrete, kerb mix and/or no fines, in which case Boral
shall be responsible for the de‑dagging
on a further two occasions per year.
(c) A Carrier
shall receive a transfer fee per kilometre at the rate of (F) per kilometre
travelled to and from the place
where the de-dagging is performed in accordance with clause 16.10 (b)
17. Provision of a
Mixer
17.1 Boral shall be
responsible for the provision of a mixer and its safe and proper initial
fitting to a Carrier's vehicle in accordance with the specifications of the
respective manufacturers, including the supply of U bolts, clearance lights and
mud flaps.
17.2 After the
initial fitting referred to in 17.1 above:
(a) A Carrier
shall be responsible for the mixer being properly secured to their vehicle
(b) Boral shall be
responsible for the maintenance and replacement of any clearance lights and mud
flaps fitted to the mixer as long as such maintenance / replacement is not
required as a result of an operators negligence.
17.3 A Carrier, in
their discretion, may have the U bolts adjusted by a qualified mechanic and the
reasonable costs incurred shall be met by Boral.
17.4 The mixer shall
remain the property of Boral and shall be returned to Boral’s nearest
appropriate workshop facilities on completion of use.
17.5 Subject to its
then current capital budget, Boral will use its reasonable endeavours to
optimise the carrying capacity of a Carrier’s vehicle by fitting a mixer driven
from the prime mover engine.
17.6 If a Carrier
requires the mixer to be removed to affect repairs that cannot be otherwise
completed without the removal of the mixer, then the costs of the mixer removal
and replacement shall be borne by Boral provided that such repairs are not for
the purpose of painting, inspection, sandblasting or modifying the prime mover
chassis.
18. Painting
and/or Sign Writing of Mobile Unit
18.1 Boral
To Periodically Paint
Boral shall periodically paint and/or signwrite the vehicle to its specification.
18.2 Quality
Of Painting
Paint used will be of a quality that is acid resistant and
capable of withstanding the arduous conditions of the industry. The painting
shall be undertaken by a recognised truck painting contractor and the standard
of finish shall be not less than that provided by tradesmen specialising in
this field.
18.3 Preparation
For Painting
All necessary surface preparations and procedures
recommended by the paint manufacturers shall be adhered to. A Carrier shall be
responsible for the provision of a sound painting surface of the vehicle,
including but not limited to the rectification of corrosion, prior to
presentation for painting.
18.4 Period
Of
Painting
A vehicle shall be painted every 5 years or a longer or
shorter period by mutual agreement.
18.5 Meaning
Of Vehicle
To avoid any doubt, for the purposes of this clause
"vehicle" shall mean the complete prime mover and mixer including all
their components and external surfaces without exception. The mixer shall be removed from the prime
mover for painting.
18.6 Time Of Painting
(a) All painting
is to be done, weather permitting, within the estimated time for the following
situations:
(i) vehicle - 10
days;
(ii) prime mover
only - 5 days; and
(iii) prime mover and
mixer frame (not including barrel) - 6 days.
(b) If the
painting requires a longer period than that set out in clause 18.6 (a), the
Carrier shall be paid a payment for each such extra day or a proportional
amount for part extra days calculated at the rate of the Carriers daily average
earnings for total working days averaged over the preceding 12 months.
18.7 Removal
Of
Logos
The Carrier will make their vehicle available to Boral
for removal of all "stick on logos" from their vehicle whenever their
vehicle is permanently removed from Boral's fleet.
19. Renegotiation
19.1 If either party request,
12 months prior to the expiry of the nominal term Boral will meet with the
Union to discuss whether or not any new Contract Determination should be
entered into and if so its terms.
Any such discussions will occur in the context of the
Term of the applicable Head Contract for Carriers and the ‘package’ nature of
this Contract Determination and Head Contract.
20. Substitute
Driver
20.1 If the Carrier’s
regular driver cannot drive through illness or for other good reason, the
Carrier must provide a substitute driver but they must:
(a) first obtain Boral's approval for the substitute driver
(which shall not be unreasonably withheld);
(b) comply with any reasonable condition Boral sees fit to
impose regarding the substitute driver (including the length of time for use of
the substitute driver); and
(c) make sure that the substitute driver possesses an
appropriate current driver's license.
21. Uniforms,
Protective Equipment, and Storage
21.1 An approved
driver shall maintain an acceptable neatness of dress and appearance.
21.2 Boral shall
issue each Carrier with a standard uniform (the same and on the same terms as
issued to a Boral employee undertaking cartage work) issue and the driver shall
wear the uniform when performing cartage work.
21.3 Boral shall
issue each Carrier with a standard protective equipment issue (the same and on
the same terms as issued to a Boral employee undertaking cartage work) and the
driver shall use the equipment as directed.
21.4 Unless
impracticable given the constraints in the plant area, Boral shall provide
sufficient space for the secure storage
of Operator equipment (such as spare
tyres and oil) at their nominated plant that is reasonably necessary to assist
in the efficient and effective running of their vehicles.
22. Purchase of
Product Or Goods
22.1 Carriers shall
not use Boral's accounts for the purchase of product except as in clause 22.3.
22.2 Where Boral
agrees to purchase product or goods at the request of a Carrier, the cost of such
purchases may be deducted from a Carrier's haulage payments.
22.3 Boral shall
issue to each Carrier, if requested, a credit card for the purchase of diesel
fuel (to take advantage of any available Boral discounted price) for their
prime mover. Payment for fuel purchased in this manner shall be deducted from
the Carrier's monthly retainer payment.
22.4 Where a Carrier
purchases fuel and other goods from Boral the cost of such purchases may be
deducted from the Carrier's haulage payments.
22.5 Authorisation
for Deduction - With the exception of 22.2 and 22.3, no other deductions may be
made from a Carrier's haulage payment without the written permission of a
Carrier.
23. Insurance
23.1 A Carrier shall
arrange and keep current insurance cover whilst working under this Contract
Determination in respect to:
(a) motor vehicle comprehensive including third party property
($20 million);
(b) motor vehicle compulsory third party;
(c) workers compensation for all employees including casual
employees; and
(d) public liability:
(i) general cover to the value of $20 million;
(ii) for mixer damage (extension) $50,000 limit; and
(iii) for wrong delivery (extension) $500,000 limit.
23.2 Unless otherwise
agreed by Boral, each policy of insurance held by the Contractor must:
(a) indemnify Boral as principal for principal’s liability;
(b) contain a waiver of subrogation from the insurer in favour
of Boral as principal to the extent that Boral is insured under the policy;
(c) contain a cross liability clause in which the insurer agrees
to insure the liability of the insureds to Boral and
to each other; andcontain terms in which the insurer
agrees not to impute pre-contractual non-disclosures or the acts, omissions or
knowledge of one insured to any other insured for the purposes of determining
rights to indemnity under the policy.
23.3 All insurance
policies are to be submitted to Boral for perusal and returned prior to
commencement of the Carrier’s engagement (or this Contract Determination
whichever comes first) operation. Thereafter such policies and proof of
currency shall be produced annually.
24. Amenities
24.1 All amenities
are to comply with any applicable legislative requirements. Carriers shall be
responsible for the cleanliness and tidiness of all amenities arising from
their personal use of them.
25. Dispute
Procedure
25.1 The parties
shall in the event of a dispute or grievance follow the procedure set out
below:
25.1.1 When there is a
disagreement the Carrier shall attempt to resolve the matter by negotiating
with Boral's Area Manager.
25.1.2 Where the matter
is not resolved the yard delegate shall attempt to resolve the matter by
negotiating with Boral's Regional Manager.
25.1.3 If the matter
remains unresolved an official of the Union may be party to continued
negotiations with Boral's General Manager.
25.1.4 If the matter
remains unresolved, notification may be made to the Industrial Relations
Commission by either party under the terms of the Industrial Relations Act
1996.
25.2 Work shall
continue normally while the dispute or grievance is being dealt with in
accordance with this clause.
26. Rates and
Other Monetary Amounts
|
Ref
|
Description
|
Paid
|
Rate
|
|
A
|
Loading flag fall to 3km
|
per cubic metre;
|
calculated in
accordance with
|
|
|
|
|
Schedule A
|
|
B
|
Kilometre rate after 3km
|
per cubic metres per
|
$0.94
|
|
|
|
kilometre;
|
|
|
C
|
Waiting Time
|
per minute;
|
$1.62
|
|
D
|
Out of hours Monday -
|
per load;
|
$43.98
|
|
|
Saturday
|
|
|
|
E
|
Out of Hours - Sundays and
|
per load;
|
$52.77
|
|
|
Public Holidays
|
|
|
|
F
|
Transfer
|
per kilometre;
|
$1.50
|
|
G
|
Call Out Fee
|
per instance;
|
$175.44
|
|
H
|
Original Retainer Payment
|
|
$71,867
|
|
I
|
Original Flag Fall Payment
|
|
$7.34
|
|
J
|
Minimum Earnings
|
per annum;
|
$100,000
|
|
K
|
Productivity Bonus
|
per cubic metre.
|
calculated in
accordance with
|
|
|
|
|
Schedule C
|
27. Minimum
Earnings Guarantee
27.1 If in any financial
year (1 July to 30 June) a Carrier:
(a) is an entitled Carrier; and
(b) earns
(pursuant to clause 4 and 18.6 (b) and Schedule C of this Contract
Determination) less than the minimum earning guarantee,
Boral shall pay the entitled Carrier the difference
between the minimum earnings guarantee and what they actually earned on 1
August in the following financial year.
"Minimum earnings guarantee" means the amount
set out in (J) of clause 26 as varied from time.
"Entitled Carrier" means a Carrier who
subject to clause 14.1 performs cartage work for no less than 95% of the total
working days in the financial year concerned determined from relevant Boral
management records.
27.2 Every quarter
(as defined in clause 1.4 of Schedule A), Boral will review the volume of
cartage work performed by each Carrier within a region. Where
a Carrier is performing less than 85% of the average volume of cartage work
(for the Carrier’s configuration of vehicle) within the Carrier’s region for
reasons not within the Carrier’s control, Boral will review the pattern of
cartage work within the region to determine whether the Carrier’s productivity
can be increased.
28. Union and
Delegates
28.1 Boral recognises
the Transport Workers Union of NSW as the relevant Union for the Carriers and
their drivers to be members of.
28.2 A Carrier
appointed as yard delegate shall, upon notification thereof to Boral by the
Branch or Sub-Branch Secretary of the Union, be recognised as the accredited
representative of the Union.
29. Meetings
29.1 If a Carrier is
required to attend a meeting by Boral:
(a) and they are
required to use their personal vehicle (car etc) to
do this they shall be reimbursed per kilometre at the rate arising from the
Road Transport and Distribution Award 2010 for an employee required to use
their personal vehicle in that situation; and/or
(b) outside of the hours 6.00am to 4.30pm Monday to Friday,
after 1.00 pm on a Saturday, on a Sunday or on a public holiday, they shall be
paid the appropriate hourly rate that would otherwise apply to an employee in
that situation arising from the Road Transport and Distribution Award 2010 as
varied from time to time.
29.2 Despite anything
else in this clause where a Carrier is required to attend a site/project
induction training session they shall be paid the appropriate hourly rate that
would otherwise apply to an employee in that situation arising from the Road
Transport and Distribution Award 2010 as varied from time to time. This payment
is in substitution for any payment that might otherwise arise under clause 29.1
(b).
30. Sunday and
Public Holiday Work
30.1 Despite clause
14.1 and subject to clause 30.2, Boral may require a Carrier to perform cartage
work on Sundays and/or Public Holidays.
30.2 To avoid any doubt,
Boral will firstly call for volunteers to perform work on a Sunday or public
holiday and if sufficient volunteers are not available, Boral will then utilise
an after hours roster for each plant which shall
include Carrier vehicles and vehicles owned by Boral.
31. Area Incidence
and Duration
31.1 This Contract
Determination shall apply to Boral Resources (Country) Pty Limited and Carriers
engaged by them within the State of New South Wales and operates to the
exclusion of all other contract determinations except the Transport Industry -
Redundancy (State) Contract Determination serial C5924 published 28 September
2007 (Vol. 363 IG 853). Note: The Transport Industry - Redundancy (State)
Contract Determination contains a "set-off" relevant to this Contract
Determination.
31.2 This Contract
Determination rescinds and replaces the Boral Country - Concrete and Quarries
Contract Determination published 17 February 2006 (357 I.G. 214).
31.3 This Contract
Determination shall commence to operate on the first full pay period on or
after 18 September 2014 and shall have a nominal term of three years.
31.4 The provisions
of this Contract Determination are not to be used in negotiations or
proceedings concerning Boral or company’s related to Boral and are not to be
regarded as a precedent and are based on the particular facts and circumstances
affecting Boral and its Carriers.
SCHEDULE A
Regional Flag Fall
1. Calculation
of Regional Flag Fall
1.1 Principle
The Regional Flag Fall payment is calculated on a Regional
basis as set out in this Schedule.
To avoid any doubt a reference in this Schedule to
vehicles is a reference to Carrier vehicles and does not include vehicles owned
by Boral.
1.2 Establishment
of Regions
Boral shall establish operational regions for the
purposes of calculating Regional Flag Falls.
The establishment of such regions should be based on grouping
geographically close plants that have similar vehicle utilisation.
Boral may change the regions once established and if
any dispute arises in relation to this then the procedure set out in clause 25
of this Contract Determination shall be applied.
At the commencement of this Contract Determination the
regions are:
|
|
Region Name
|
Plants included in
Region
|
|
1
|
Central Coast
|
Gosford, Berkley Vale, Kincumber, Doyalson
|
|
2
|
Hunter 1
|
Seaham, Rathmines, Kooragang, Jesmond, Gateshead,
Boolaroo, Thornton
|
|
3
|
Hunter 2
|
Maitland, Kurri, Singleton, Musselbrook
|
|
4
|
Far North
|
Ballina, Lismore, Casino, Evans Head, Alstonville,
Grafton, Maclean
|
|
5
|
Coffs Harbour
|
Coffs Harbour, Macksville, Woolgoolga
|
|
6
|
Mid North
|
Kempsey, Laurieton, Port Macquarie, Taree, South West
Rocks, Wauchope
|
|
7
|
North West
|
Armidale, Inverell, Tamworth, Quirindi
|
|
8
|
Illawarra
|
Dunmore, Port Kembla, Maldon
|
|
9
|
Shoalhaven
|
Nowra, Huskinson, Sussex Inlet,
Milton
|
|
10
|
South Coast
|
Batemans Bay, Moruya, Narooma
|
|
11
|
Wagga
|
Wagga
|
|
12
|
Far South
|
Bermagui, Bega, Pambula, Bombala, Jindabyne
|
|
13
|
Highlands
|
Goulburn, Marulan, Moss Vale & Mittagong
|
|
14
|
Western
|
Dubbo, Mudgee, Orange
|
1.3 Regional Flag
Fall Calculation
The Flag Fall for a region is calculated using the
following formula:
(Original Retainer Payment / Regional Utilisation) +
Original Flag Fall Payment + Regional Productivity Bonus
"Original Retainer Payment" means the amount
set out in (H) of clause 26 as varied from time to time in accordance with
clause 1.5.
"Regional Productivity Bonus" means the
amount set out in (K) of clause 26 as varied from time to time in accordance
with clause 1.5.
"Regional Utilisation: means the average paid m3
utilisation for a region determined by the following formula:
(Paid m3 carried by valid Carrier vehicles in the
region in the preceding 12 months) / (the number of valid Carrier vehicles in
the region in the preceding 12 months)
"Paid m3" means the m3 paid for on the docket
inclusive of minimum payments etc not the m3 actually
carried as determined from relevant Boral management records.
"Valid Carrier vehicles" means the number of
Carrier vehicles in a region that have been ready, willing and able, to perform
cartage work for no less than 95% of the total working days in the quarter determined
by Boral from relevant Boral management records.
1.4 Quarterly
Recalculation of Regional Flag Fall
Regional Flag Falls will be recalculated by Boral
utilising the formulas in clause 1.3 on and as at the last day of each quarter
and the new Regional Flag Fall will operate from the relevant commencement
date.
For the purposes of this Schedule "quarter"
and "relevant commencement date" shall be as set out in the table
below:
|
Quarter
|
Relevant
Commencement Date
|
|
July to September
|
1 November
|
|
October to December
|
1 February
|
|
January to March
|
1 May
|
|
April to June
|
1 August
|
1.5 Annual Review
The Original Retainer Payment and the Original Flag
Fall Payment shall be varied by (and when) any percentage change if any arises from
Schedule B Clause 1.1 - General Variation Of Cartage
Rates.
SCHEDULE B
VARIATION OF RATES
1. Formula
1.1 General
Variation Of Cartage Rates
(a) At the
commencement of each new financial year, the rates set out in the following clauses
shall be adjusted in accordance with this clause:
(i) clause 26 (B) to (G) inclusive;
(ii) the Original Retainer Payment in clause 26 (H);
(iii) the Original Flag Fall Payment in clause 26 (I); and
(iv) the Minimum Earnings Guarantee in clause 26 (J).
(b) The percentage
variation (if any) to items set out in clause 1.1 (a) above shall be calculated
as the percentage variation ascertained for the preceding:
(i) financial year (July 1 to June 30) for all elements of the
general variation formula contained in clause 1.2 except the fuel element; and
(ii) quarter (April to June) for the fuel element.
(c) Rates varied
in accordance with this clause shall be calculated to the nearest whole cent
and paid on and from 1 August.
1.2 General
Variation Formula
The general variation formula is:
[LP x APV] + [FP x BPV] + [MP x
MPCPI] + [TP x TPCPI] + [INS x INSCPI] + [Rego x RegoCPI]
+ [ACP x CPIV] = percentage variation.
The fuel element is:
[FP x BPV]
For the purposes of clause 1.2, the following definitions
apply:
|
Abbreviation
|
Meaning
|
|
LP (Labour Proportion)
|
51.5%;
|
|
APV (Award Percentage Variation)
|
The percentage variation in Grade 5 of the Road Transport
|
|
|
and Distribution Award 2010 in the cartage year;
|
|
FP (Fuel Proportion)
|
10%;
|
|
BPV (Bowser Price Variation)
|
The average of the monthly percentage variations in the
|
|
|
price of distillate that Boral makes available in
|
|
|
Accordance with clause 22.3 to Carriers in the preceding
|
|
|
quarter of the cartage year.
|
|
MP (Maintenance Proportion)
|
9%;
|
|
MPCPI (Maintenance Variation)
|
The percentage variation in the ABS CPI
|
|
|
Transportation Private Motoring Motor Vehicle Repair
|
|
|
and Servicing Index in the cartage year;
|
|
TP (Tyre Proportion)
|
2.3%;
|
|
TPCPI (Tyre Variation
|
The percentage variation in the ABS CPI
|
|
|
Transportation Private Motoring Motor Vehicle Parts
|
|
|
and Accessories Index in the cartage year;
|
|
INS (Insurance Portion)
|
8.7%;
|
|
INSCPI (Insurance Variation)
|
The average percentage variation determined by Boral
|
|
|
(in consultation with the Carrier’s Senior Delegate)
|
|
|
from such inquiries of Carriers and other persons as
|
|
|
Boral considers appropriate to ascertain the best price
|
|
|
of a supplier in NSW of the insurances required by
|
|
|
clause 23 on terms which might reasonably be accepted
|
|
|
by a Carrier;
|
|
Rego (Registration Cost Portion)
|
1.3%;
|
|
RegoCPI (Registration Variation)
|
The percentage variation in the ABS CPI
|
|
|
Transportation Private Motoring Motor Vehicle Other
|
|
|
Motoring Charges Index in the cartage year;
|
|
ACP (Administration Cost Portion)
|
3.9%;
|
|
CPIV (Consumer Price Index Variation)
|
The percentage variation in the ABS Sydney All
|
|
|
Groups Index in the cartage year;
|
|
Cartage year
|
Preceding financial year (July 1 to June 30)
|
|
Quarter
|
July to September, October to December, January to
|
|
|
March, April to June
|
1.3 Fuel Variation Of Cartage Rates
(a) At the end of
each quarter, the rates in clause 26 (B) to (G) inclusive, the Original
Retainer Payment in clause 26 (H), the Original Flag Fall Payment in clause 26
(I) and the Minimum Earnings Guarantee in clause 26 (J), shall be adjusted in
accordance with this clause to account for any change in the price of fuel
only.
(b) The percentage
variation (if any) to items set out in clause 1.3 (a) above shall be calculated
as the percentage variation ascertained by adjusting the fuel element of the
general variation formula only and then recalculating the general variation
formula.
(c) Rates varied
in accordance with this clause shall be calculated to the nearest whole cent
and paid on and from the relevant commencement date.
For the purposes of this clause 1.3 "quarter"
and "relevant commencement date" shall be as set out in the table
below:
|
Quarter
|
Relevant
Commencement Date
|
|
July to September
|
1 November
|
|
October to December
|
1 February
|
|
January to March
|
1 May
|
SCHEDULE C
Productivity Bonus
Boral recognises the benefits that Boral derives from
the productive performance of cartage work by Carriers. Boral is accordingly
willing to provide an opportunity for Carriers to share in the benefits derived
from increased productivity.
For this reason, Boral offers a productivity bonus to
the Carrier, calculated by reference to the total cartage work undertaken by the
Carrier’s region as a whole. The productivity bonus consists of a payment to
the Carrier per cubic metre carted in the region as a whole, on the following
basis:
|
Regional
|
< 3999
|
4000 to
|
4500 to
|
5000 to
|
5500 to
|
6000
|
6500
|
> 7000
|
|
Productivity
|
|
4499
|
4999
|
5499m3
|
5999
|
6499
|
6999
|
|
|
$ per Carrier
|
$0.75
|
$0.75
|
$0.75
|
$1.00
|
$1.25
|
$1.50
|
$1.75
|
$2.00
|
|
per m3
|
|
|
|
|
|
|
|
|
P. J. NEWALL,
Commissioner
____________________
Printed by the authority of the Industrial Registrar.