Australia, Aug. 4 -- New South Wales Land and Environment Court issued text of the following judgement on July 4:

1. This is an application made by the Transport Workers' Union of New South Wales (TWU), an association of contract drivers [1] (and the "Union as defined in clause 1.1 of the Determination) to vary the Transport Industry - General Carriers Contract Determination 2017 (the Determination) pursuant to s 320 of the Industrial Relations Act 1996 (NSW) (IR Act). The named Respondents to the application are, broadly described, numerous registered organisations, associations of employing contractors and large employing entities (referred to in this context as principal contractors).

2. The TWU's application is to vary certain rates and amounts contained in Schedules A and B of the Determination, as set out in Schedule B to the application.

3. The matter came before me for compulsory conference on 13 June 2025 [2] , at which time it became apparent that, subject to one matter, the application would proceed by consent. The one qualification was the date of operation for the proposed variations. The application was filed on 2 June 2025. The variations proposed purported to operate from 1 June 2025. The Commission may make a determination that operates retrospectively, but only in limited circumstances, none of which applied here [3] . An agreement was reached between the Applicant and the Respondent parties in attendance (who are the main Respondent parties to the Determination, and those who have historically taken an active interest in it in proceedings before the Commission) as to the operative date at that time.

4. At the hearing of the matter on 4 July 2025 the TWU was granted leave to file an amended application (noting there was no objection to this course), with handwritten amendments to Schedule B to the application, providing the operative date for the variations as the first full pay period on or after 18 July 2025 (being two weeks from the date of decision). That amended application was marked Ex 1 in the proceedings.

5. Each of the Respondents appearing in the matter confirmed their consent to variations being made in accordance with Ex 1. It is in those circumstances I come to consider the application.

Consideration

6. The Determination itself was made as a consent variation by Commissioner Newall on 15 March 2017 (operative from 15 April 2017), following what the Commissioner described an "industrial compromise" [4] , reached after extensive conciliation and as the Commissioner described it "perhaps the first really substantive review of the General Carriers Determination since its creation 30 years before" [5] .

7. The product of that industrial compromise was broadly summarised by the Commissioner in his decision approving the Determination, but importantly, as the Commissioner noted, included a review of the agreed mechanism for reviewing the rates during the life of the Determination. That updated review mechanism was to be applied to rates which were themselves calculated by the application of what the Commissioner described as "a quite sophisticated cost and rate model" (at [19] - [20]):

"I have made reference to the fact that the submissions before the Commission have advanced that this matter comes before the Commission by consent as an industrial compromise or an industrial agreement between the parties, but it ought not be thought, in my view at least, that this is simply a matter of the parties doing a deal. The parties ... rather than simply haggling out some figures that they could live with, have adopted the approach of developing a quite sophisticated cost and rate model which is now exhibit 5 in these proceedings. I have not seen an exercise of that complexity undertaken by any industry in advancing a new proposal for the structure of rates and conditions at any time whether in this Commission or in my experience in other industrial tribunals.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/197d316353f17ba730725abb)

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