Transport Industry - Excavated Materials, Contract
Determination
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
DETERMINATION
REPRINT
This reprint of the above 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
|
Award/Variation
Serial No.
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Date
of Publication
|
Effective
Date
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Industrial
Gazette Reference
|
|
|
|
Volume
|
Page No.
|
|
C9807
|
12 January 2024
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1 February 2024
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396
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429
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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) and reprinted 5 May 2023 (394 I.G. 615), 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
|
21.815
|
33.969
|
41.256
|
49.088
|
52.862
|
56.621
|
57.434
|
61.194
|
|
1A. Extra Capacity (per cubic metre)
|
3.759
|
3.759
|
3.759
|
3.759
|
3.759
|
x
|
3.759
|
x
|
|
2. Kilometre Rate (0-8 Km)
|
5.486
|
8.546
|
10.378
|
12.349
|
13.296
|
14.242
|
14.449
|
15.395
|
|
2A. Extra Capacity (per cubic metre)
|
0.946
|
0.946
|
0.946
|
0.946
|
0.946
|
x
|
0.946
|
x
|
|
3. Kilometre Rate (over 8 - 25 km)
|
5.076
|
7.906
|
9.605
|
11.426
|
12.308
|
13.184
|
13.373
|
14.249
|
|
3A. Extra Capacity (per cubic metre)
|
0.876
|
0.876
|
0.876
|
0.876
|
0.876
|
x
|
0.876
|
x
|
|
4. Kilometre Rate (over 25 km)
|
3.993
|
3.993
|
3.993
|
3.993
|
3.993
|
4.806
|
3.993
|
4.806
|
|
4A. Extra Capacity (per cubic metre)
|
0.813
|
0.813
|
0.813
|
0.813
|
0.813
|
x
|
0.813
|
x
|
|
6. Hourly Rate
|
71.526
|
111.374
|
135.316
|
160.878
|
173.257
|
185.630
|
197.142
|
209.514
|
|
6A. Extra Capacity (per cubic metre)
|
12.372
|
12.372
|
12.372
|
12.372
|
12.372
|
x
|
12.372
|
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
|
$940.20
|
35.40
|
|
Capital
|
ABS Consumer Price Index (CPI), Motor Vehicles, Australia
|
111.6
|
18.88
|
|
Insurances
|
ABS CPI, Insurance, Australia
|
166.5
|
6.50
|
|
Registration
|
ABS CPI, Transportation Group, Other Services in respect of
motor vehicles
|
143.2
|
3.27
|
|
Repairs & Maintenance
|
ABS CPI, Transportation Group, Maintenance and Repair of Motor
and Repair of motor vehicles
|
132.4
|
17.99
|
|
Tyres
|
ABS CPI, Transportation Group, Spare Parts
and Accessories for motor vehicles
|
139.6
|
5.16
|
|
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
|
9.31
|
|
Administration
|
ABS CPI, All Groups, Sydney
|
135.8
|
3.49
|
|
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 February 2024.
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 February 2024, the Temporary Fuel Levy shall be 5.9%.
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 = 197.89 (
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 = 0.0931,
(being the weighting applied to the fuel component as set out in part C of the
Determination); and
8. The Temporary Fuel Levy shall be rounded
to one decimal place.
9. 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.
10. The revised Temporary Fuel Levy will apply
from the first day of the following calendar month.
11. As the Temporary Fuel Levy responds to
fluctuations in fuel prices, it may increase or decrease from time to time.
OTHER PROVISIONS
12. 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.
13. 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 cost
____________________
Printed by the authority of the
Industrial Registrar.