INTERIM Transport Industry - Concrete Haulage Contract
Determination
INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH
WALES
Application by Transport Workers' Union of New
South Wales, Industrial Organisation of
Employees.
(Case No. 39738 of 2023)
|
Before Commissioner
Sloan
|
26 July
2024
|
DETERMINATION
Content
Clause No. Subject Matter
1. Area Incidence and Duration
1.1 Application
1.2 Nominal Term
1.3 Leave Reserved
2. Prime mover
2.1 Supply and Suitability
2.2 Registration
2.3 Maintenance and Repair
2.4 Running Expenses
2.5 Cease Using Prime Mover
3. Provision of agitator
3.1 Supply and Suitability
4. Agitator Provided by Contract Carrier
4.1 Supply and Suitability
4.2 Maintenance and Repair
4.3 De-Dagging
4.4 Running Expenses
4.5 Cease Using Agitator
5. Agitator provided by principal
contractor
5.1 Supply and Suitability
5.2 Maintenance and Repair - Principal
Contractor Obligations
5.3 De-Dagging
5.4 Running Expenses
5.5 Cease Using Agitator
6. Communication Equipment
6.1 Supply Etc
6.2 Communication Equipment - Custody
6.3 Return of Communication Equipment
7. Use of the Vehicle
7.1 Driving of Vehicle
7.2 Cleaning of Vehicle
7.3 Road Worthiness and Fit for Purpose
7.4 Tare Weight
8. Driver
8.1 No one else to drive Prime Mover or
operate Agitator
8.2 Valid driving license and permits
8.3 Training
8.4 Compliance with relevant law
8.5 Medicals and fitness
9. Consultation
9.1 Mandatory Consultation
10. the cartage work
10.1 The Contract Carrier’s obligations
10.2 The Contract Carrier must supervise the
Contract Carrier’s personnel
11. Records
11.1 Daily Records Etc
11.2 Record Maintenance
12. Nominated plant and rostering
12.1 Nominated Plant
12.2 Rosters
12.3 Double Shifts
13. Loading and delivery of concrete
13.1 Plant
13.2 The Principal Contractor to Nominate Load
13.3 No Alteration to Docket
13.4 Slump
13.5 Route
13.6 Rejection of Load
13.7 Mixing and Transit
13.8 Discharging
13.9 Bogged Vehicles
13.10 Unsafe Entry and Unloading
13.11 Return
14. Site cleaning
14.1 The Contract Carrier’s Obligations
14.2 Fines
14.3 Salvage Rights
15. Insurance
15.1 Vehicle, Workers Compensation insurance
15.2 Insurance Policies
15.3 Premiums
15.4 No acts to prejudice Insurance
15.5 Payment of excess
16. Tolls
17. dictionary
18. Dispute resolution
18.1 Application of procedure
18.2 Resolution steps
18.3 Representative
18.4 Work to continue normally
19. Savings Provision
19.1 Commitment
20. Minimum safety net
20.1 Cartage Rate
SCHEDULE
- 1 - INSURANCES
SCHEDULE
- 2 - COVERAGE EXCLUSION
1. Area Incidence and
Duration
1.1 Application
This Contract Determination:
(a) will
operate with respect to contracts of carriage of Concrete throughout the State
of New South Wales in vehicles configured to cart 5m3 of Concrete or more; but
(b) will
not operate with respect to any Contract Carrier and Principal Contractor
covered by the instruments set out in SCHEDULE - 2.
1.2 Nominal Term
This Contract Determination will operate
with a nominal term of 12 months.
1.3 Leave Reserved
Leave is reserved to:
(a) Transport
Workers Union of New South Wales;
(b) The
NSW Business Chamber Limited;
(c) Principal
Contractors to whom the instruments in SCHEDULE 2 apply,
to apply as they see fit to amend this
Contract Determination.
2. Prime Mover
2.1 Supply
and Suitability
The
Contract Carrier must supply the Prime Mover which must:
(a) meet
the Principal Contractor’s specification; and
(b) be approved in writing by the Principal
Contractor prior to performing the Cartage Work.
2.2 Registration
The
Contract Carrier must, at the Contract Carrier’s own expense, ensure that the
Prime Mover is registered at all times.
2.3 Maintenance
and Repair
The
Contract Carrier must mechanically maintain and repair the Contract Carrier’s
Prime Mover at the Contract Carrier’s own expense.
2.4 Running
Expenses
The
Contract Carrier must pay all of the running costs associated with the Contract
Carrier’s Prime Mover.
2.5 Cease
Using Prime Mover
(a) The Contract Carrier must stop using the
Contract Carrier’s Prime Mover if the Principal Contractor so directs because
in the Principal Contractor's opinion it is not fit for purpose pending the
carrying out of any repairs, maintenance, inspection or testing.
(b) If the Principal Contractor’s opinion is
proved to be wrong and the Prime Mover was fit purpose without the carrying out
of any repairs or maintenance and the Contract Carrier has suffered a loss of
earnings because the Prime Mover was prevented from carrying out normal cartage
work the Principal Contractor shall make good any loss in earnings.
3. Provision of
Agitator
3.1 Supply
and Suitability
The Principal
Contractor must determine whether the Contract Carrier or Principal Contractor
is to provide the Agitator, provided that if the:
(a) Contract Carrier provides the Agitator,
clause 4 will apply; or
(b) Principal Contractor provides the
Agitator, clause 5 will apply.
4. Agitator
Provided by Contract Carrier
4.1 Supply
and Suitability
If the
Contract Carrier supplies the Agitator, it must:
(a) meet
the Principal Contractor’s specification;
(b) be approved in writing by the Principal
Contractor prior to performing the Cartage Work; and
(c) be fitted to the Contract Carrier’s
Prime Mover at the Contract Carrier’s expense.
4.2 Maintenance
and Repair
The Contract
Carrier must mechanically maintain and repair the Agitator at the Contract
Carrier’s own expense.
4.3 De-Dagging
(a) The Principal Contractor must at their
cost remove hardened concrete from inside the Agitator barrel (a practice known
as de-dagging) in accordance with this clause.
(b) The
Principal Contractor must de-dag the Agitator barrel at least once every 12
months.
(c) The
Principal Contractor and the Contract Carrier (acting reasonably) may agree to
the Agitator barrel being de-dagged more than set out in clause 3.3 (b)in a 12
month period, having regard to:
(i) the volume of concrete carted by the
Contract Carrier since the last de-dag;
(ii) the mix designs of the concrete carted
by the Contract Carrier since the last de-dag;
(iii) the availability of wash out facilities;
(iv) any other relevant matter.
(d) If
either party fails to act reasonably as contemplated by clause 3.3 (c), the
matter may be referred to the Industrial Relations Commission of NSW in
accordance with clause 18 and the Commission may make a contract determination
pursuant to s 313 of the Industrial Relations Act 1996 to resolve the
matter.
(e) Except as provided for in clause 3.3 (b)
(or as determined by the Commission pursuant to clause 3.3 (d)) the Contract
Carrier shall be responsible for de-dagging the Agitator barrel to ensure that
it operates to carry the maximum amount of concrete legally permitted.
(f) All
de-dagging work will be conducted outside normal working hours or otherwise by
mutual agreement between a Contract Carrier and the Principal Contractor.
(g) The
de‑dagging process will be completed as soon as practicable.
4.4 Running
Expenses
The Contract
Carrier must pay all of the running costs associated with the Agitator.
4.5 Cease
Using Agitator
(a) The Contract Carrier must stop using the
Agitator if the Principal Contractor so directs because in the Principal
Contractor's opinion is not fit for purpose pending the carrying out of any
repairs, maintenance, inspection, or testing.
(b) If the Principal Contractor’s opinion is
proved to be wrong and the Agitator was fit for purpose without the carrying
out of any repairs or maintenance and the Contract Carrier has suffered a loss
of earnings because the Agitator was prevented from carrying out normal cartage
work the Principal Contractor shall make good any loss in earning.
5. Agitator
Provided by Principal Contractor
5.1 Supply
and Suitability
If the
Principal Contractor supplies the Agitator, it must:
(a) meet
the Principal Contractor’s specification; and
(b) be fitted to the Contract Carrier’s
Prime Mover at the Principal Contractor’s expense in accordance with the
manufacturers specification.
5.2 Maintenance
and Repair - Principal Contractor Obligations
The Principal
Contractor must mechanically maintain and repair the Agitator at the Principal
Contractor’s expense.
5.3 De-Dagging
(a) The Principal Contractor must at their
cost remove hardened concrete from inside the Agitator barrel (a practice known
as de-dagging) in accordance with this clause.
(b) The
Principal Contractor must de-dag the Agitator barrel at least once every 12
months.
(c) The
Principal Contractor and the Contract Carrier (acting reasonably) may agree to
the Agitator barrel being de-dagged more than set out in clause 4.3 (b) in a 12
month period, having regard to:
(i) the volume of concrete carted by the
Contract Carrier since the last de-dag;
(ii) the mix designs of the concrete carted
by the Contract Carrier since the last de-dag;
(iii) the availability of wash out facilities;
(iv) any other relevant matter.
(d) If
either party fails to act reasonably as contemplated by clause 4.3 (c), the
matter may be referred to the Industrial Relations Commission of NSW in
accordance with clause 18 and the Commission may make a contract determination
pursuant to s 313 of the Industrial Relations Act 1996 to resolve the
matter.
(e) Except as provided for in clause 4.3 (b)
(or as determined by the Commission pursuant to clause 4.3 (d)) the Contract
Carrier shall be responsible for de-dagging the Agitator barrel to ensure that
it operates to carry the maximum amount of concrete legally permitted.
(f) All de-dagging work will be conducted
outside normal working hours or otherwise by mutual agreement between a
Contract Carrier and the Principal Contractor.
(g) The de‑dagging process will be
completed as soon as practicable.
5.4 Running
Expenses
The Contract
Carrier must pay all of the running costs associated with the Agitator.
5.5 Cease
Using Agitator
(a) The Contract Carrier must stop using the
Agitator if the Principal Contractor so directs because in the Principal
Contractor's reasonable opinion is not fit for purpose pending the carrying out
of any repairs, maintenance, inspection or testing.
(b) If the Principal Contractor’s opinion is
proved to be wrong and the Agitator was fit for purpose without the carrying
out of any repairs or maintenance and the Contract Carrier has suffered a loss
of earnings because the Agitator was prevented from carrying out normal cartage
work the Principal Contractor shall make good any loss in earnings.
6. Communication
Equipment
6.1 Supply
Etc
(a) The
Principal Contractor may supply, install and maintain in the Contract Carrier’s
Vehicle the Communication Equipment required by the Principal Contractor and
the Contract Carrier must operate it efficiently.
(b) Despite clause 6.1(a), the Contract
Carrier must provide a smart phone for communications with the Principal
Contractor or their customers.
6.2 Communication
Equipment - Custody
The Contract
Carrier has full responsibility for the safe custody of the Communication
Equipment. The Contract Carrier must:
(a) not
add to, alter or modify the Communication Equipment;
(b) indemnify the Principal Contractor, and
keep the Principal Contractor indemnified at all times, against destruction,
damage or loss of the Communication Equipment:
(i) while the Vehicle is being operated by
the Contract Carrier;
(ii) parked other than at the Principal
Contractor’s plants; or
(iii) parked other than at a place directed by
the Principal Contractor.
(c) not without the prior written permission
of the Principal Contractor use the Communication Equipment for anything but
the Cartage Work.
6.3 Return
of Communication Equipment
Immediately upon
the end of the Contract Carrier’s engagement, the:
(a) Contract Carrier must return the
Communication Equipment to the Principal Contractor in good order and condition (subject to fair wear and tear
being permitted); and
(b) Principal Contractor must make good the
Prime Mover from the removal of the Communication Equipment.
7. Use of the
Vehicle
7.1 Driving
of Vehicle
The
Contract Carrier must:
(a) not
use or operate the Vehicle in a careless, reckless or dangerous manner; and
(b) make
sure that the Vehicle is not driven by any person under the influence of
alcohol, prohibited drugs or of a drug which might adversely affect driving
performance.
7.2 Cleaning
of Vehicle
(a) The Contract Carrier must ensure the
Vehicle is kept clean and tidy to the reasonable satisfaction of the Principal
Contractor.
(b) Cleaning brushes, detergents, Concrete
de-scaler and buckets necessary for cleaning the exterior surfaces of the
Vehicle will be supplied by the Principal Contractor.
7.3 Road
Worthiness and Fit for Purpose
(a) If
required by the Principal Contractor, the Contract Carrier must provide the
Principal Contractor at least two (2) weeks’ notice of the date on which the
Contract Carrier’s Vehicle is to be inspected by the relevant authority or
approved inspection centre for road worthiness.
(b) The
Contract Carrier must provide the Principal Contractor as reasonably required,
a copy of the service and maintenance history for the Vehicle in a form
suitable to the Principal Contractor which includes the records of service
provided to the Contract Carrier by their mechanic arising from each service.
(c) The
Contract Carrier must at the Contract Carrier’s own expense, obtain and supply
to the Principal Contractor an annual roadworthy certificate for the Contract
Carrier’s Vehicle.
7.4 Tare
Weight
(a) On a quarterly basis or as required by
the Principal Contractor:
(i) the
Contract Carrier must provide the Principal Contractor with a copy of a
registered weighbridge certificate for the Vehicle; or
(ii) make their Vehicle available at the
plant for weighing on portable weigh scales utilised by a certified weigh scale
operator.
(b) Should clause 6.4(a)(i) apply the
Principal Contractor shall pay the Contract Carrier [insert transfer fee
details once resolved].
(c) The Vehicle must be weighed with the
Driver in the driver’s seat with fuel, oil and water tanks filled to full
capacity and all Agitator chutes attached.
(d) The Principal Contractor may require the
Contract Carrier to weigh the Contract Carrier’s Vehicle at any time and under
the Principal Contractor’s supervision, as part of any program which the
Principal Contractor has in place for the purposes of ensuring statutory
compliance.
8. Driver
8.1 No
one else to drive Prime Mover or operate Agitator
Any Driver
must be approved in writing by the Principal Contractor prior to performing the
Cartage Work.
8.2 Valid
driving license and permits
The Contract
Carrier must:
(a) make sure that any Driver is at all
times the holder of a current:
(i) driver’s licence appropriately endorsed
or issued in respect of the Contract Carrier’s Vehicle; and
(ii) licence or permit of any other kind
needed from time to time for the performance of the Cartage Work;
(b) immediately notify the Principal
Contractor if a licence or permit is cancelled or suspended for any reason; and
(c) present any such license or permit to
the Principal Contractor upon request provided that should the Principal
Contractor seek to provide a copy of the licence to a customer they shall only
do so with the consent of the Contract Carrier concerned.
8.3 Training
The Contract
Carrier must make sure that any Driver is trained and competent to perform the
Cartage Work.
Notation:
The Principal Contractor has certain training obligations under the Transport
Industry - Mutual Responsibility for Road Safety (State) Contract
Determination.
8.4 Compliance
with relevant law
The Contract
Carrier must:
(a) comply with the provisions of any
relevant law in respect of any Driver, including but not limited to chain of
responsibility laws (howsoever described), laws concerning the employment of
workers, income tax, workers’ compensation, annual leave, long service leave or
any award, order, determination or agreement of a competent industrial or
specialist tribunal; and
(b) indemnify the Principal Contractor and
keep the Principal Contractor indemnified against any claims made by any of the
Contract Carrier’s officers, employees or agents in respect of any such law,
award, order, determination or agreement with which the Contract Carrier is
required to comply.
8.5 Medicals
and fitness
(a) The Contract Carrier must ensure that
any Driver is at all times medically fit to perform the Cartage Work.
(b) The Principal Contractor may, at any
time, require the Contract Carrier to provide evidence that a Driver who has
been approved in accordance with clause 8 is fit to perform the Cartage Work.
(c) The Principal Contractor may require any
Driver who has been approved in accordance with clause 8.1 to undergo a medical
assessment (at the expense of the Principal Contractor) for the purposes of
ensuring that any Driver is fit to perform the Cartage Work. The Contract
Carrier must ensure the Driver attends for such medical assessment and consents
to the providing of a medical report to the Principal Contractor.
9. Consultation
9.1 Mandatory
Consultation
Notation:
The Transport Industry - Redundancy (State) Contract Determination includes
consultation obligations.
The Principal
Contractor must consult with any affected Contract Carriers before exercising
any rights arising from:
(a) varying any Prime Mover specification
under clause (a);
(b) varying any Agitator specification under
clause 4.1(a) or 5.1(a);
(c) introducing any new Communication
Equipment under clause 6.1(a);
(d) introducing any new policy, procedure or
specification under clause 10.1(e); or
(e) introducing any new roster under clause
12.2(c).
10. The Cartage Work
10.1 The Contract Carrier’s obligations
The Contract
Carrier must perform the Cartage Work and do everything connected with it:
(a) in accordance with this Contract
Determination;
(b) with due care and skill and in a proper,
co-operative and professional manner;
(c) safely, and in accordance with the
Principal Contractor’s safety requirements;
(d) in accordance with the day to day operational
directions given by the Principal Contractor;
(e) in
accordance with any direction, policy, procedure or specifications provided to
the Contract Carrier by the Principal Contractor from time to time;
(f) using best efforts to promote the
Principal Contractor’s business;
(g) in good faith and without jeopardising
or damaging the Principal Contractor’s business; and
(h) in compliance with all applicable laws.
10.2 The
Contract Carrier must supervise the Contract Carrier’s personnel
(a) The Contract Carrier must ensure that
any Driver:
(i) performs the Cartage Work and does
everything connected with it as is required of the Contract Carrier by clause
10.1; and
(ii) do not engage in any acts or omissions
that give rise to a breach by the Contract Carrier of this Contract
Determination,
and the
Contract Carrier will be liable for the acts and omissions of any Driver as if
they were acts and omissions engaged in by the Contract Carrier.
(b) For the avoidance of any doubt, where
this Contract Determination requires the Contract Carrier to perform some
obligation or task that in practice is logical to be performed by a Driver, the
Contract Carrier will (without diminishing the Contract Carrier’s primary
responsibility for that obligation) procure that the Driver perform the
relevant obligation or task.
11. Records
11.1 Daily
Records Etc
The Contract
Carrier must:
(a) return
to the Principal Contractor all delivery dockets, daily work sheets, fatigue
management records or other records required by the Principal Contractor as and
when required;
(b) maintain
up to date and accurate logbooks as required under any relevant law and/or by
the Principal Contractor and make these available for inspection by the
Principal Contractor on request;
(c) maintain
a system verifying vehicle maintenance;
(d) keep
and retain for seven years comprehensive records in relation to the Cartage
Work, including the records in this clause; and
(e) ensure that a copy of the records in
this clause are available for inspection at reasonable times for audit
purposes.
11.2 Record
Maintenance
(a) The Principal Contractor shall maintain
copies of all records concerning payment for the Cartage Work for a period of
seven years.
(b) Any records referred to in this clause
10, may be retained in electronic form.
12.
Nominated Plant and Rostering
12.1 Nominated
Plant
A
Contract Carrier shall normally work from a nominated plant provided that the
Principal Contractor may change a Contract Carrier's nominated plant to meet
its business needs by giving them 14 days’ notice of the change having first:
(a) attempted
to meet those needs on a voluntary basis; and then
(b) changed
the nominated plant of all other Contract Carrier’s (in a Contract Carrier's
nominated plant and with the same configuration vehicle) who has been at that
nominated plant for a shorter period of time.
12.2 Rosters
The Principal Contractor will establish and
operate a:
(a) cyclic
start roster;
(b) roster
off roster (subject to operational requirements).; and
(c) such
other rosters as required by the Principal Contractor to operate its business.
12.3 Double
Shifts
No Contract
Carrier’s Vehicle shall be double shifted in a day other than with the prior
written agreement of the Contract Carrier concerned.
13.
Loading and Delivery of Concrete
13.1 Plant
The
Contract Carrier must report available for Cartage Work with the Contract
Carrier’s Vehicle and be ready to load at the times and Plants that the
Principal Contractor directs.
13.2 The
Principal Contractor to Nominate Load
The Principal Contractor may nominate the
load size (within the legal carrying capacity of the Vehicle) for each load to
be carried by the Contract Carrier.
13.3 No
Alteration to Docket
The specification for each load of Concrete shown
on the delivery docket issued by the Principal Contractor must not be changed
by the Contract Carrier after batching.
13.4 Slump
(a) Before
leaving the Plant to deliver a load, the Contract Carrier must:
(i) ensure the load is properly mixed in
accordance with any instructions provided by the Principal Contractor, which
may be varied from time to time; and
(ii) notify the batcher, allocator or other
person nominated by the Principal Contractor if the load has been batched out
of tolerance, i.e. too wet or dry.
(b) The
Contract Carrier must notify the batcher, allocator or other person nominated
by the Principal Contractor of the quantity of water added at the slump stand.
13.5 Route
The
Contract Carrier must take such route as directed by the Principal Contractor
or otherwise take the shortest practicable route whilst performing the Cartage
Work given the time of day.
13.6 Rejection of Load
(a) If
the Contract Carrier adds water to a load without the signed consent of the
customer or their nominated representative, and the load is rejected because
the slump of the Concrete is outside the nominated tolerance as specified in
clause 13.4, or because the Contract Carrier had not complied with that clause,
the Contract Carrier will not be paid for the delivery of the load or
any applicable surcharge/s.
(b) Where
the Contract Carrier is requested by the Principal Contractor to adjust the
slump of a load and the load is rejected on the basis of non‑compliance
with the nominated tolerance, then the Principal Contractor will pay the
Contract Carrier for the load and any applicable surcharges for the load as if
the load had not been rejected.
(c) This
sub clause shall not apply to loads of kerb and gutting mix unless the Contract
Carrier has been negligent in the performance of the Cartage Work.
13.7 Mixing and Transit
The Contract Carrier must take reasonable care
of the slump after the Vehicle has left the Plant in accordance with the
Principal Contractor’s standard operating procedures.
13.8 Discharging
The
Contract Carrier must discharge the Concrete at the delivery site in the manner
and position reasonably directed by the customer. The Contract Carrier must use every
reasonable effort at the delivery site to obtain directions from the customer
concerning the manner and position to discharge the Concrete.
13.9 Bogged Vehicles
(a) Subject
to this clause, where the Contract Carrier enters a job site beyond the road
kerb line to complete a delivery and the Vehicle becomes bogged or is otherwise
rendered inoperative as a consequence of such attempted delivery, the Principal
Contractor will arrange the services of an experienced salvage contractor to
extract the Vehicle as soon as practicable and will bear all costs for those
arrangements.
(b) The Contract Carrier must notify the
Principal Contractor as soon as the Vehicle becomes bogged or inoperative and
await instruction from the Principal Contractor.
(c) The
Principal Contractor will ensure that the salvage contractor selected is
covered by the appropriate insurance policy to rectify any damage that the
salvage contractor may cause to the Vehicle during the extraction process.
(d) To
avoid any doubt, the Principal Contractor accepts no liability for damage or
loss caused where the Contract Carrier utilises the Contract Carrier’s own
salvage contractor or means for the extraction.
(e) If as a result of the Vehicle becoming
bogged the Contract Carrier suffers a loss of earnings because the Vehicle was
prevented from carrying out normal cartage work the Principal Contractor shall
make good any loss in earnings.
(f) This clause will not apply where the
Vehicle becomes bogged or inoperative as a result of the Contract Carrier’s
Driver’s negligence or misconduct including their failure to follow the
Principal Contractor’s ‘beyond the kerb’ operating and/or safety procedures.
(g) To avoid any doubt a Contract Carrier
may decline to comply with an instruction of the customer that is inconsistent
with the Principal Contractor’s ‘beyond the kerb’ operating and/or safety
procedures provided that they have:
(i) made all reasonable efforts to contact
the Principal Contractor prior to such non-compliance; and
(ii) followed all reasonable directions of
the Principal Contractor before declining to comply with the customers
instruction.
13.10 Unsafe
Entry and Unloading
(a) If in entering a delivery site or in
unloading a Driver would be placed in imminent risk to their health and safety
for any reason, the Driver must immediately notify the Principal Contractor
prior to entering or unloading.
(b) The Contract Carrier must then hold
themselves and follow any further instructions provided by the Principal
Contractor.
(c) The Contract Carrier must have the right
to refuse to enter a site or unload where they reasonably consider that doing
so would pose an imminent risk:
(i) to their health and safety; or
(ii) of material damage to Prime Mover or
Agitator,
provided
the Principal Contractor shall have the right to refuse payment for the Cartage
Work where this right is used without reasonable justification.
13.11 Return
After
discharging the load, the Contract Carrier must report to whatever Plant the
Principal Contractor instructs provided any applicable transfer payment is
paid.
14. Site Cleaning
14.1 The
Contract Carrier’s Obligations
(a) The
Contract Carrier must immediately report to the Principal Contractor any
Concrete or Vehicle spillage.
(b) Unless
the spillage was caused by the Principal Contractor overloading the Vehicle,
the Contract Carrier must pay for:
(i) any
costs associated with the clean-up of any Concrete or Vehicle spillage;
(ii) the
removal of any Concrete or Vehicle spillage; and
(iii) any fines associated with any Concrete or
Vehicle spillage.
14.2 Fines
Unless the
Principal Contractor has overloaded the Vehicle or the Contract Carrier is
complying with a direction by the Principal Contractor or customer at the
unloading site the Contract Carrier must pay any fines or other penalties
imposed on the Contract Carrier:
(a) if the maximum legal pay load carried by
the Contract Carrier’s Vehicle is exceeded at any time; or
(b) for any breach of any laws.
14.3 Salvage
Rights
If there is a
breakdown or accident the Contract Carrier must take all available and
reasonable steps to assist the Principal Contractor to deliver the load or
remove the load from the Agitator.
15. Insurance
15.1 Vehicle, Workers Compensation insurance
The Contract
Carrier must obtain the insurance set out in Schedule 1 and maintain them at
the Contract Carrier’s expense.
15.2 Insurance
Policies
(a) The Contract Carrier must make sure that each insurance policy covers such risks and contains such
terms, conditions, endorsements and exclusions (including the amounts of sub
limits and deductibles) as are reasonably acceptable to or reasonably required
by the Principal Contractor.
(b) Evidence of all insurance policies must
be provided to the Principal Contractor in the form of a certificate of currency
and a full copy of each policy prior to commencing to perform the Cartage Work.
15.3 Premiums
The Contract
Carrier must punctually pay all premiums for insurance policies and renewals of
insurance policies and must provide on request at any time proof of payment and
renewal to the Principal Contractor’s satisfaction.
15.4 No
acts to prejudice Insurance
The Contract
Carrier must not do, permit others to do, or omit to do any act, matter or
thing which might prejudice the right to claim under any insurance policy or
which might make it void or voidable.
15.5 Payment
of excess
The Contract
Carrier must pay any deductible or excess applying to
any claim under any insurance policy held by the Contract Carrier.
16. Tolls
16.1 Payment
Where a
Contract Carrier is required to pay a road and/or bridge toll whilst performing
the Cartage Work then such road and/or bridge toll shall be paid by the
Principal Contractor by:
(a) providing the Contract Carrier with an
e-tag; or
(b) reimbursing the Contract Carrier,
provided that
both the outward and return journey are travelled by the route directed by the
Principal Contractor.
16.2 Route
The Principal
Contractor may direct the route to be taken on the basis of:
(a) a standing direction; and/or
(b) a direction for the load concerned.
17. Dictionary
In this Contract
Determination:
"Agitator"
means a transit mixer and barrel.
"Cartage
Work" means the cartage of Concrete as and when required by the Principal
Contractor and all activities necessarily related to or otherwise ancillary to
the cartage.
"Communication
Equipment" has its ordinary meaning and includes but is not limited to:
(a) two-way radio;
(b) video cameras;
(c) audio recorders;
(d) any GPS tracking system;
(e) in-cab accident recording equipment;
(f) computer tablets/terminals; and
(g) the use of "Geo fences" to
track vehicle movements.
"Concrete"
means concrete and related products and materials the Contract Carrier is
directed to transport as part of the Cartage Work - whether owned by Principal
Contractor or someone else.
"Driver"
means any natural person who drives the Prime Mover or operates the Agitator in
the performance of the Cartage Work however described (e.g. Nominated Drivers,
Regular Drivers, Relief Drivers and Substitute Drivers).
"Plant"
means a concrete plant whether owned and operated by the Principal Contractor
or someone else.
18. Dispute
Resolution
18.1 Application
of procedure
This clause
sets out the procedures to be followed if an industrial dispute arises.
18.2 Resolution steps
(a) The
parties to the dispute must first try to resolve the dispute at the plant
through discussion between the Principal Contractor and Contract Carrier(s)
concerned (within 48 hours).
(b) If
the dispute is not resolved the parties to the dispute must then try to resolve
it in a timely manner at the workplace through discussion between the Contract
Carrier(s) concerned and more senior levels of management of the Principal
Contractor, as appropriate (within 5 working days).
(c) If the dispute is unable to be resolved
at the workplace and all appropriate steps have been taken a party to the
dispute may refer it to the Industrial Commission of New South Wales in
accordance with the Act.
18.3 Representative
A Contract
Carrier may appoint the Transport Workers Union, NSW and the Principal
Contractor may appoint a person, organisation or association to represent them
in any discussion or process under this clause.
18.4 Work to continue normally
(a) While
procedures are being followed under this clause in relation to a dispute:
(i) Cartage Work must continue as normal;
and
(ii) a Contract Carrier must not unreasonably
fail to comply with any direction given by the Principal Contractor about
performing Cartage Work, whether at the same or another plant, that is safe and
appropriate for the Contract Carrier to perform.
Notation:
This clause is subject to any applicable work health and safety legislation.
(b) Where a matter is in dispute in
accordance with this clause, the Principal Contractor must as far as
practicable, restore or maintain the conditions existing between the parties
immediately before the occurrence of the events giving rise to the dispute for
a period of 28 days.
19. Savings
Provision
19.1 Commitment
No Contract
Carrier will suffer a reduction in their terms and conditions of engagement
because of the making of this Interim Contract Determination.
20. Minimum Safety
Net
20.1 Cartage
Rate
A Contract
Carrier must be paid no less than $33.00 for each cubic metre of Concrete
carted (and pro rata for part cubic metres rounded up to 0.2 of a cubic metre)
during any pay period.
SCHEDULE
- 1 - INSURANCES
The Contract Carrier
must obtain the following insurances:
(a) Compulsory third-party insurance for the
Vehicle as required by any relevant law.
(b) Comprehensive motor vehicle insurance
covering own damage to the Contract Carrier’s vehicle including Agitator
attached thereto should the Contract Carrier have supplied it and third-party
property damage arising from the use of the Vehicle for a minimum $30,000,000
any one event.
(c) Public and product liability insurance
covering the Contract Carrier’s legal liability to any third-party for personal
injury and/or property damage arising from the Contract Carrier’s business for
$20,000,000 any one occurrence.
(d) Contractors Load Insurance covering
accidental loss or damage to the load whilst in transit from batching plant to
customer and including unloading, and solidification of load arising out of an
accident.
(e) Workers’ compensation insurance as
required by any relevant law.
SCHEDULE - 2 - COVERAGE EXCLUSION
1. Hy-Tec Industries Pty Ltd - Maxi
Concrete Contract Determination, Serial C9335.
2. Metromix Pty Limited Maxi Concrete
Cartage Contract Determination, Serial C8790.
3. Metromix Pty Limited Mini Concrete
Cartage Contract Determination, Serial C8788.
4. Boral Country - Concrete and Quarries
Contract Determination, Serial C8251.
5. Boral Resources (NSW) Pty Limited
Sydney Metropolitan Contract Determination, Serial C5274.
6. Hanson Construction Materials Pty
Limited Concrete Carriers Contract Determination, Serial C8796.
7. Holcim (Australia) Pty Ltd NSW Concrete
Lorry Owner Driver Contract Agreement, CA16/3.
D. SLOAN, Commissioner
____________________
Printed by the authority of the
Industrial Registrar.