BarnetTs Couriers contract determination 2014
INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES
Application by Transport Workers' Union of New South Wales, Industrial Organisation of Employees.
(No. IRC 936 of 2013)
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Before Commissioner Tabbaa
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10 November 2014
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DETERMINATION
Arrangement
Clause No. Subject Matter
1. Definitions
2. Area, Incidence and Duration
3. Dispute Procedure
4. Remuneration
5. Deduction
6. Union Recognition
7. Supply of Vehicles
8. Obligations of the Principal Contractor
9. Breaks
10. Annual Leave
11. Termination
12. Fatigue Management
13. Obligations of the Contract Carrier
14. No Guarantees
1. Definitions
In this Contract Determination, unless otherwise
required by the context:
Act means the Industrial Relations Act 1996 (NSW).
Barnetts Couriers means any company operating under the banner of "Barnetts Couriers".
Contract of Carriage has the meaning given to that expression by the Act.
Commission means the Industrial Relations Commission of New South Wales.
Contract Carriers means the contract carriers engaged as drivers by the Principal Contractor in accordance with Clause 2 - Area, Incidents, and Duration.
Determination means the Barnetts Couriers Contract Determination 2014
Principal Contractor means Barnetts (Fairy Meadow) Pty Ltd
Union means the Transport Workers Union of New South Wales.
2. Area, Incidence and Duration
2.1 The Determination shall operate in respect of all contracts of carriage between the Principal Contractor and the Contract Carriers engaged at the Principal Contractor’s Fairy Meadow depot.
2.2 At the commencement of this Determination, the Principal Contractor shall offer existing franchisees engaged by Langmana Pty Ltd a contract of carriage on the terms of this Determination. The initial offer is to remain open for a period of 14 days.
2.3 At any time after the initial offer at clause 2.2 is made, on request, the Principal Contractor shall consider offering any existing franchisee of Langmana Pty Ltd, or any employed driver of Barnetts Couriers, a contract of carriage on the terms of this Determination.
2.4 The Determination shall operate on and from 10 November 2014 and shall remain in force for a period of three years.
3. Dispute Procedure
3.1 Any dispute, difficulty or question arising between the parties to this determination shall
be dealt with in the following manner:
3.2 Affected Contract Carriers, and at his/her/its request, a representative of the Union, shall negotiate with the Principal Contractor or the nominated representative of the Principal Contractor.
3.3 If negotiations contemplated in subclauses 3.1 and 3.2 above are unsuccessful, the parties may notify the dispute to the Commission in accordance with the Act for conciliation and/or arbitration.
4. Remuneration
4.1 The Principal Contract shall pay each Contract Carrier the applicable rate of remuneration payable under the Transport Industry - General Carriers Contract Determination as varied or rescinded and replaced from time to time.
4.2 When a variation is made to the Transport Industry - General Carriers Contract Determination the Principal Contract must immediately pass on the applicable change in rate from the date in which the variation takes effect.
4.3 For the avoidance of doubt, the following clauses from the Transport Industry - General Carriers Contract Determination apply as if they were reproduced in this
contract determination:
(a) Clause 2 - Definitions (so far as they relate to clauses 4.4(b) - (f))
(b) Clause 16 - Remuneration;
(c) Clause 17 - Unit, Hourly & Other Rates
(d) Schedule 1;
(e) Schedule 2; and
(f) Schedule 3.
5. Deductions
5.1 The Principal Contractor shall not demand, require or receive the payment of any franchise or factoring fee from a Contract Carrier, however described.
5.2 No amount of remuneration shall be withheld or deducted from a Contract Carrier by the Principal Contractor without prior written consent from the Contract Carrier.
5.3 A deduction may be made from the Contract Carrier’s remuneration in the event that freight is damaged, and the damage caused is the fault of the Contract Carrier. If there is a dispute about the fault of the damage, it will be dealt with pursuant to the disputes procedure and no deduction will be made until that dispute is resolved.
5.4 A deduction may be made from the Contract Carrier’s remuneration in the event that equipment owned by the Principal Contractor in the Contract Carriers custody is damaged, and the damage caused is the fault of the Contract Carrier. If there is a dispute about the fault of the damage, it will be dealt with pursuant to the disputes procedure and no deduction will be made until that dispute is resolved.
6. Union Recognition
6.1 The Principal Contractor recognises that the Union is the sole union that shall represent the Contract Carriers.
6.2 Union membership will be at the sole discretion of the individual Contract Carrier.
6.3 All new Contract Carriers that become engaged by the Principal Contractor shall be allowed to attend an induction given by the Union. In this regard, the
Principal Contractor will ensure:
(a) That the induction occurs in the place that the work will be performed;
(b) That 30 minutes is allowed for the induction to take place;
(c) That the Contract Carriers will be remunerated at the appropriate rate for the duration of the induction; and
(d) That new Contract Carriers are aware of the occurrence of the said induction.
6.4 The following
applies to an induction by the Union in accordance with clause 6.3:
(a) Attendance by the Contract Carrier is at the discretion of the Contract carrier.
(b) The induction must be held within (2) weeks of the engagement of the Contract Carrier.
(c) The Union must give the Principal Contractor at least three (3) business days notice of the date and time of the scheduled induction.
(b) The Principal Contractor or its representative can attend the induction at its discretion.
6.5 A Union
delegate shall:
(a) Be treated fairly and allowed to perform their role without any discrimination in the workplace;
(b) Be recognised as the representative of the Union in the workplace;
(c) Be allowed access to new Contract Carriers to explain the benefits of Union membership;
(d) Respect the freedom of association of any individual Contract Carrier;
(e) Be paid to represent the interests of Union members, be it for the purpose of resolving disputes, attending training, or negotiating on behalf of Union members during normal working hours only.
7. Supply of Vehicles
7.1 The Contract Carrier is to provide a vehicle as reasonably specified by the Principal Contractor.
7.2 The Contract Carrier will be responsible for the running and upkeep of the vehicle provided for the purposes of the contract of carriage.
8. Obligations of the Principal Contractor
8.1 The Principal Contractor shall provide at no cost to the Contract Carrier all equipment incidental to the work to be performed under a contract of carriage. This includes but is not limited to:
(a) Screen and/or computer systems for the receipt of jobs;
(b) Printers for the cabin of the vehicle;
(c) Branding of the Principal Contractor on the vehicle; and
(d) Uniforms.
8.2 The Principal Contractor shall maintain the equipment under clause 8.1 at its own expense to the extent that any damage to the equipment other than through reasonable use and wear and tear is to be at the cost of the Contract Carrier.
8.3 If a contract of carriage is terminated, the Principal Contractor will bear the cost of the removal of any equipment or signs that the Contract Carrier was required to have in or on their vehicle and make good the affected areas of the vehicle.
8.4 The Principal Contractor shall pay the Contract Carrier the remuneration due to it no later than the 5th day after the close of pay period observed by the Principal Contractor which shall not exceed a two week period.
9. Breaks
9.1 The Contract Carrier shall be allowed an unpaid half an hour lunch break for each day that he performs work for the Principal Contractor.
9.2 The Contract Carrier shall comply with any regulation relating to the operation of their particular vehicle as varied from time to time that is applicable in the state of New South Wales.
10. Annual Leave
10.1 A Contract Carrier who regularly performs contracts of carriage for a Principal Contractor shall be entitled to four weeks' annual leave without payment (payment is included in the rates in clause 4) which shall fall due each year on the anniversary of the beginning of the first contract of carriage entered into by the Contract Carrier with the Principal Contractor before or after the date of commencement of this determination.
10.2 The Principal Contractor shall not unreasonably deny a request by a Contract Carrier to take annual leave.
11. Termination
11.1 Where a Contract Carrier commits serious misconduct, or commits a serious breach of this determination, their contract of carriage may be terminated summarily by the Principal Contractor.
11.2 For any other termination, the Principal Contractor shall give the
Contract Carrier notice of its intention to terminate the Contract Carriers engagement in accordance with Contract Carriers period of service with the Principal
Contractor in accordance with the following table:
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Period of Continuous Service
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Notice
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Less than 1 year
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1 week
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More than 1 year
but less than 3 years
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2 weeks
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More than 3 years
but less than 5 years
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3 weeks
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Over 5 years
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4 weeks
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11.3 If the Contract Carrier wishes to terminate the contract of carriage, the Contract Carrier must give the Principal Contract
notice of its intention to do so in accordance with the following table:
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Period of
Continuous Service
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Notice
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Less than 1 year
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1 week
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More than 1 year
but less than 3 years
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2 weeks
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More than 3 years
but less than 5 years
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3 weeks
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Over 5 years
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4 weeks
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12. Fatigue Management
12.1 The parties to this Determination share responsibility for ensuring compliance with applicable fatigue management laws and regulations.
12.2 The Principal Contractor must monitor its operations for compliance and take appropriate steps to remedy all breaches it is aware of or ought reasonably to be aware of.
12.3 The Contract Carrier must report all suspected fatigue management breaches to the Principal Contractor as soon as is practicable.
12.4 Once a fatigue
management breach has been identified the Principal Contractor must:
(a) immediately conduct an investigation;
(b) fairly consider what its own role in the breach was;
(c) consult with the Contract Carriers, and if the Contract Carriers is a member of the Union, the Union; and
(d) record in writing the outcome of the investigation and any remedial action taken.
12.5 Remedial action
can include:
(a) changes to the Principal Contractor’s operations;
(b) a program of education and training; and
(c) in the case of a deliberate or intentional breach, termination of a Principal Contractor’s employee or a Contract Carrier.
12.6 The Union has a right to train any Contract Carrier engaged by a Principal Contractor on
changes to fatigue management laws and regulations:
(a) the Principal Contractor will release the Contract Carrier for a reasonable period of time to facilitate training on changes to fatigue management laws and regulations; and
(b) the Principal Contractor will remunerate the Contract Carrier at the Contract Carrier’s usual hourly rate during such training.
(c) Any training conducted in accordance with this clause must be facilitated to ensure minimal disruption to the contract carriers business and the Union must provide the Principal Contract with at least (5) business days notice of its intention to conduct training in accordance with this clause.
(d) The Principal Contractor reserves the right to direct any Contractor Carrier to attend training conducted by the Union in accordance with this clause, whether the contract carrier is a member of the Union or not.
12.8 In the event of a dispute arising under this part the Dispute Resolution procedure at clause 3
will apply.
12.9 Nothing in this clause prevents, or obviates the need for, appropriate external reporting of breaches of fatigue management laws and regulations.
13. Obligations of the Contract Carrier
The Contract Carrier shall:
13.1 Undertake work as directed by the Principal Contractor.
13.2 Comply with all Acts, Ordinances, Regulations and By-laws relating to the registration, third party insurance and general operation of the vehicle within New South Wales.
13.3 Pay all legal costs, such as tax and duty, payable in respect of the vehicle and keep the vehicle in a mechanically sound, road-worthy and clean condition.
13.4 Carry such goods as the Principal Contractor shall from time to time specify and between such places as the Principal Contractor may reasonably require.
13.5 Be responsible for equipment and gear and for the safe loading of the vehicle and the securing and appropriate weather protection of the load and shall be present to supervise and assist in the loading and unloading of the vehicle and/or the container loaded on the vehicle. In the case of pre-loaded vehicles the Contract Carrier shall be responsible for checking the load for safety and satisfactory method of loading.
13.6 Exercise all reasonable care and diligence in the carriage and safe keeping of the goods in his charge.
13.7 Hold at all times and on request produce for the inspection of the Principal Contractor a current driver's licence appropriately endorsed or issued in respect of a motor vehicle of the class of the Contract Carrier's vehicle and immediately notify the Principal Contractor if the licence is suspended or cancelled.
13.8 Supply at the request of the Principal Contractor, notice of any encumbrances liens or bills of sale affecting the vehicle of the Contract Carrier. The Contract Carrier shall not have any lien over the goods carried by him.
13.9
(a) Not engage or allow any person to drive his vehicle other than the approved driver when he is performing work for the Principal Contractor unless the approved driver is unable to perform work for a period of more than one week for any reason other than annual leave. It will then be the responsibility of the Contract Carrier to arrange for the services of a driver to operate his vehicle for a period not to exceed three months from the date of commencement of the disability. If the disability continues beyond a period of three months, the Contract Carrier, after review by the Principal Contractor, may be terminated.
(b) Not engage or use the services of a driver for his vehicle, other than the approved driver without prior approval from the Principal Contractor. The approval may be withdrawn by the Principal Contractor if the driver commits misconduct or fails to comply with a provision of this determination appropriate to be complied with by a driver of a Contract Carrier's vehicle.
13.10 If the Contract Carrier is not the driver of the vehicle, ensure that the driver complies with those provisions of this determination which are appropriate to be complied with by the driver and ensure that the driver does not commit misconduct.
13.11 Report to the Principal Contractor non-attendance at the starting place by normal starting time on each of the days on which he may be required to undertake work and is unable to attend.
13.12 Advise the Principal Contractor as early as possible of any commitments affecting his ability to perform work.
13.13 Not cease performing work on any day without notifying the operations supervisor of the Principal Contractor in person, by two-way radio or by telephone.
13.14 Ensure the driver of the vehicle is of neat appearance.
13.15 Maintain contact with the Principal Contractor by radio if installed in the vehicle and immediately inform the Principal Contractor when a radio unit installed in the vehicle requires servicing or repair.
13.16 Inform the Principal Contractor immediately if he is unable to effect pick-up or delivery of goods to be carried by him.
13.17 Ensure that all freight notes and driver's work sheets and any other document reasonably required by the Principal Contractor are correctly completed and given to the Principal Contractor and use every endeavour to obtain the customer's signature on the relevant documentation when goods are picked up and/or delivered, any damage or shortages to be noted.
13.18 Pay to the Principal Contractor the amount of any claim, loss or expense incurred by the Principal Contractor in consequence of goods in the charge of the Contract Carrier being lost or damaged if the Contract Carrier (or a person for whose actions he is responsible) is so liable at law.
13.19 Account for any cheques or moneys received on behalf of the Principal Contractor as soon as possible. The Contract Carrier shall not be held responsible for fraudulent cheques collected by the Contract Carrier in good faith on behalf of the Principal Contractor.
13.20 At the completion of each day's work, each Contract Carrier shall hand in all freight notes and his worksheets. Contract Carriers who fail to do so shall not be paid for work
detained on such worksheets unless:
(a) such action was agreed by the Principal Contractor, or
(b) illness precluded the Contract Carrier from returning to the terminal.
13.21
(a) Obtain and maintain a public liability insurance policy for an amount of $2,000,000 in respect of any liability incurred by the Contract Carrier in the performance of work for the Principal Contractor.
(b) Obtain and maintain a comprehensive motor insurance policy over the vehicle including cover for an amount of $5,000,000 for third party property damage in respect of any one accident.
(c) Take out and maintain at all times a workers' compensation insurance policy to cover the driver with an extension unlimited in amount indemnifying the Contract Carrier and the Principal Contractor against their respective liabilities at common law to the driver.
(d) Produce for inspection by the Principal Contractor a copy of all insurance policies required to be effected by the Contract Carrier under this determination and receipts for current premiums.
(e) Ensure that each such policy includes an indemnity of the Principal Contractor for any action of the Contract Carrier to which the policy applies.
13.22 Immediately report any accident to the operations staff of the Principal Contractor and attend to any legal requirements at the scene of the accident.
13.23 Observe the necessity for civility to the Principal Contractor's customers.
13.24 Not make alterations to equipment of the Principal Contractor without the consent of the Principal Contractor.
13.25 Upon termination, promptly return to the Principal Contractor all equipment and signs supplied by the Principal Contractor.
13.26 Carry out any instructions of the Principal Contractor as to the order in which he picks up goods and delivers them.
14. No Guarantees
14.1 An engagement by a Principal Contractor of a Contract Carrier to undertake work under a contract of carriage or contracts of carriage does not commit the Principal Contractor to enter into further contracts of carriage with the Contract Carrier or guarantee any minimum remuneration.
14.2 The Contract Carrier acknowledges that some runs will be offered to franchisees of Barnetts Couriers only, there are no fixed contracts with customers to supply them with services and runs will change depending on the work available, nevertheless, so far as is reasonably practical, the Principal Contractor will attempt to offer Contract Carriers the same or similar runs which they have performed for a substantial period of time.
I. TABBAA,
Commissioner
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Printed by the authority of the Industrial Registrar.