An association or group of carriers can negotiate and enter into an agreement with a particular bailor, principal contractor or an association that represents those groups under s 322 of the IR Act.  The Commission must approve a contract agreement for it to come into effect, including any variations to an existing contract agreement. ¹⁷   

What will the Commission do?

The Commission must assist in good faith bargaining for agreements between an association of contract carriers and a principal contractor or an association of employing contractors.¹⁸

Compulsory conference

The matter will be allocated to a Member of the Commission,¹⁹ who may convene a compulsory conference and call upon any person who it considers may be helpful in the bargaining process.²⁰ If the matter cannot be resolved, the Commission will attempt conciliation.²¹

Conciliation

The Commission will do everything that seems fair and proper to assist the parties in coming to an agreement at conciliation.²²  The Commission may make a recommendation or issue a direction to the parties.²³

Failure to comply with a recommendation or direction may be considered by the Commission in exercising its functions under the IR Act. ²⁴ Other factors that may also be considered are whether the parties:

• attended meetings they have agreed to attend;
• complied with agreed or reasonable negotiating procedures; or
• disclosed relevant information for the purposes of negotiation, other than confidential or commercially sensitive information.²⁵

How to lodge a contract agreement for approval

Contract agreements or any variations to an existing contract ²⁶ where a group of carriers are a party must comply with the requirements set out under s 325A of the IR Act before an application can be lodged with the Registry.

All applicants must submit IRC 14A – Application in respect to an industrial instrument through the NSW Online Registry.  The application can be sent by post, email or delivered in person at the Commission if the NSW Online Registry is experiencing technical difficulties. 

Any party to a contract can lodge an application.  In proceedings relating to any such application for approval, any party to the agreement may appear or be represented. In addition, the following may also appear with leave of the Commission:

• any association registered under Chapter 6 of the IR Act if its members or persons eligible to become members are affected by the agreement;
• a State peak council; or
• the President of the Anti-Discrimination Board.²⁷

In accordance with rule 6.9 of the Industrial Relations Commission Rules 2022 (NSW), an application must also be accompanied by an affidavit. Applicants can download a template for the supporting affidavit, together with an explanatory note, which will assist parties to comply with the various requirements for the approval of a contract agreement. The template is available here.

What will the Commission consider?

The Commission will consider the requirements under s 325A of the IR Act, including whether:

• the agreement complies with all relevant statutory requirements;
• the agreement does not, on balance, provide a net detriment to the drivers or carriers who are to be covered by the contract agreement when compared with the aggregate package of conditions of engagement under relevant contract determinations that would otherwise apply;
• the parties understand the effect of the agreement; and
• the parties did not enter the agreement under duress.²⁸

The Commission must also follow the principles set out by the Full Bench of the Commission under s 33 of the IR Act when considering whether to approve a contract agreement, unless it is satisfied that any departure from those principles would not prejudice the interests of the parties.

See Review of the Principles for Approval of Enterprise Agreements 2021/2022 [2022] NSWIRComm 1005.

The contract agreement must have a nominal term of no less than 12 months and no more than three years.²⁹

A contract agreement can be terminated at any time with the approval of all parties, or the parties can apply for a contract determination to replace the agreement at the end of the term.³⁰  The Commission will consider s 330 of the IR Act when making that determination.

^{17 Ibid s 323.; 18 Ibid s 322A(1).; 19 Ibid s 322A(3).; 20 Ibid s 322A(2).; 21 Ibid s 322A(5).; 22 Ibid s 322A(6).; 23 Ibid S 322A(7).; 24 Ibid s 322A(8).; 25 Ibid s 322A(10).; 26 Ibid s 329.; 27 Ibid s 324(2).; 28 Ibid s 325.; 29 Ibid s 328(2).; 30 Ibid s 330(3).}