Maritime Container Services Pty Ltd Contract Determination 2017

 

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

 

Application by Maritime Container Services Pty Ltd.

 

(Case No. 2017/70562)

 

 

CONTRACT DETERMINATION

 

Clause No.         Subject Matter

 

1.         Definitions

2.         Interpretation

3.         Parties to the Contract Determination

4.         Relationship to Contract Determinations

5.         Term of Determination

6.         Promotion of Determination

7.         No Guarantees

8.         Probation

9.         Vehicles

10.       Loading and Delivery

11.       Fatigue Management and Heavy Vehicle Compliance

12.       Uniforms

13.       Lunch Break

14.       Annual Leave

15.       Contract Carrier Obligations

16.       Obligations of MCS

17.       Termination

18.       Insurances

19.       Allocation of Work and Rostering

20.       Fleet Mix Change

21.       Selling of Vehicles

22.       Supervision of Personnel

23.       Rates and Review

24.       Contract Carriers

25.       Disputes Procedure

26.       Union Delegates

27.       Record Keeping

28.       Productivity Improvements

29.       Compliance With Work, Road and Vehicle, Health and Safety

30.       Redundancy

 

1.  Definitions

 

In this Contract Determination:

 

Act means the Industrial Relations Act 1996 (NSW);

 

Box rate means the rate per TEU from a MCS site to the Port and return to any MCS site.

 

Carrying Capacity in relation to a Vehicle means the mass of the maximum load which the Vehicle may legally carry;

 

Cartage Rate Schedule means a written schedule (which may be an electronic document) identifying:

 

(a)        the basis of calculation of the Cartage Rates (e.g. per hour, per km or some other basis);

 

(b)        the amount of remuneration to be paid to the Contract Carrier for the Cartage Work; and

 

(c)        the timing of the payment of remuneration (e.g. the day of the week on which remuneration will be paid and the pay period). 

 

Cartage Work means work performed under a Contract of Carriage;

 

Work Distance means the distance necessarily travelled by a Contract Carrier in the course of performing a Contract of Carriage, counted from the moment of departure from the Starting Place to the completion of Cartage Work at the Finishing Place;

 

Work Time means the time during which a Contract Carrier is necessarily engaged performing a Contract of Carriage. To avoid doubt, Work Time includes all time during which the Contract Carrier is required by MCS to be at their disposal and/or at their direction, but excludes time lost because of breakdowns or accidents and the time taken by the Contract Carrier for meal breaks and fatigue breaks.

 

Class of Vehicle means either a single axle drive prime mover or a bogie axle drive prime mover or, in the case of any other Vehicle, a Vehicle of a particular Carrying Capacity;

 

Chain of Responsibility means any State, Territory or Commonwealth legislation or regulations based on or adapted from the provisions of the National Transport Commission (Road Transport Legislation - Compliance and Enforcement Bill) Regulations 2006 or National Transport Commission (Road Transport Legislation - Compliance and Enforcement Regulations) Regulations 2006 as approved by each State and Territory Government.

 

Contract of Carriage has the meaning given to that expression by the Act;

 

Contract Carrier has the meaning given to that expression by the Act;

 

Delegate means a Union delegate of Contract Carriers based at a terminal and includes a co-delegate;

 

Determination means this Determination;

 

Driver means a natural person operating the Contract Carrier’s Vehicle who is approved in accordance with clause 15(f);

 

Finishing Place means:

 

(a)        the sites or depots where the Carrier is principally engaged (which may be a network of depots within reasonable proximity); or

 

(b)        where MCS and the Contract Carrier have agreed on an alternative location, the agreed alternative location; or

 

(c)        a place specified by MCS, but only if the Contract Carrier is not principally engaged at a site or depot,

 

save that any agreed or specified Finishing Place must be reasonable in the circumstances;

 

Fleet Operator means a Contract Carrier who operates more than one vehicle.

 

IRC means the Industrial Relations Commission of New South Wales;

 

MCS means Maritime Container Services Pty Ltd;

 

Misconduct includes consuming alcohol immediately before, or while undertaking, work for MCS, being under the influence of alcohol or a drug while undertaking work for MCS, being dishonest or abusive while undertaking work for MCS or in dealings with MCS or customers, consignors, consignees or their respective representatives, or falsifying documents submitted to MCS. or breaching this Determination.

 

PBLIS - Means Port Botany Landside Improvement Strategy

 

Regular Contract Carrier means a Contract Carrier who operates under a contract with MCS and who is wholly or principally engaged by that Principal Contractor;

 

Starting Place means:

 

(a)        the sites or depots where the Carrier is principally engaged (which may be a network of depots within reasonable proximity); or

 

(b)        where MCS and the Contract Carrier have agreed on an alternative location, the agreed alternative location; or

 

(c)        a place specified by MCS, but only if the Contract Carrier is not principally engaged at a site or depot,

 

save that any agreed or specified Starting Place must be reasonable in the circumstances;

 

Union means the Transport Workers' Union;

 

Vehicle means a Vehicle used by a Contract Carrier for the purpose of a Contract of Carriage;

 

2.  Interpretation

 

In this Contract Determination, headings are inserted for convenience only and do not affect the interpretation of this Contract Determination, and unless the context otherwise requires:

 

(a)        words importing the singular include the plural and vice versa;

 

(b)        words importing a gender include the other genders;

 

(c)        if words or phrases are defined, their other grammatical forms have a corresponding meaning;

 

(d)        a reference to:

 

(i)         a person includes an individual, a partnership, a body corporate, a joint venture, an association (whether incorporated or not), a government and a government authority or agency;

 

(ii)        a party includes the party’s executors, legal personal representatives, successors, transferees and assigns;

 

(iii)       a part, clause, schedule or party is a reference to a part, clause or schedule of, or a party to, this Contract Determination;

 

(iv)       a right includes a benefit, remedy, discretion, authority or power;

 

(v)        an obligation includes a warranty or representation and a reference to a failure to observe or perform an obligation includes a breach of a warranty or representation;

 

(vi)       this Contract Determination includes the recitals and any schedules, annexures, exhibits or attachments to this Contract Determination;

 

(vii)      ‘$’ or dollars means Australian dollars and a reference to payment means payment in Australian dollars and excludes GST;

 

(viii)     writing includes any mode of representing or reproducing words in tangible and permanently visible form and includes facsimile transmissions;

 

(ix)       legislation includes any statutory modification or replacement and any subordinate or delegated legislation issued under that legislation; and

 

(x)        a law includes any statute, regulation, by law, scheme, determination, ordinance, rule or other statutory provision (whether Commonwealth, State or municipal);

 

(e)        the meaning of general words is not limited by specific examples introduced by ‘including’ or ‘for example’, or similar expressions; and

 

(f)        no provision of this Contract Determination will be interpreted against a party just because that party prepared that provision.

 

3.  Parties to the Contract Determination

 

The parties to this Contract Determination are:

 

(a)        Maritime Container Services Pty Ltd (ABN 69001169240) of 20 Canal Road St Peters, NSW 2044; and

 

(b)        The Transport Workers Union of New South Wales (TWU or Union).

 

4.  Relationship to Contract Determinations

 

(a)        This Contract Determination shall operate in respect of all Contracts of Carriage between MCS and Contract Carriers performed within the state of New South Wales excluding Fleet Operators.

 

(b)        This Contract Determination exempts MCS from the operation of any other contract determinations, or any such other contract determination that might otherwise apply, as from time to time amended:

 

(c)        The terms and conditions set out in this Contract Determination shall prevail over all existing and pre-existing customs, usages and practices.

 

5.  Term of Determination

 

This Contract Determination shall operate on and from the date of approval and shall have a nominal term of three years.

 

6.  Promotion of Determination

 

(a)        Within fourteen days of the commencement of this Determination MCS shall provide every Contract Carrier it currently engages a copy of this Determination.

 

(b)        MCS shall provide every new Contract Carrier it engages after this Determination commences a copy of this determination within seven days of the engagement.

 

(c)        MCS shall provide every Contract Carrier it engages a copy of any variation to this Determination within fourteen days of the commencement of the variation.

 

(d)        The obligations in paragraphs (a) to (c) of this clause may be satisfied by providing an electronic copy of the instrument by email or other electronic means. MCS may require, and the Contract Carrier shall provide, a current email address for that purpose.

 

(e)        Notwithstanding the terms of paragraphs (a)-(c) MCS is not obliged to provide a copy of the documents more than once in any 12 months.

 

(f)        MCS shall display a copy of the Determination and any variations then in force at MCS’s workplace.

 

7.  No Guarantees

 

An engagement by MCS of a Contract Carrier to undertake work under a contract of carriage or contracts of carriage does not commit MCS to enter into further contracts of carriage with the Contract Carrier or guarantee any minimum remuneration.

 

8.  Probation

 

An engagement of any new Contract Carrier by MCS will be subject to a 12 month probationary period. During the probation period the Contract Carriers engagement may be terminated by 24 hours’ notice.

 

9.  Vehicles

 

(a)        Supply and Suitability

 

The Contract Carrier must supply a Vehicle, which must:

 

(i)         meet the Vehicle specification required by MCS; and

 

(ii)        be approved by MCS prior to performing Cartage Work.

 

(b)        Registration

 

The Contract Carrier must at the Contract Carrier’s own expense register their Vehicle.

 

(c)        Maintenance and Repair

 

The Contract Carrier must mechanically maintain and repair their Vehicle at their own expense.

 

(d)        Running Expenses

 

The Contract Carrier must pay all of the running costs associated with the Contract Carrier’s Vehicle.

 

(e)        Cease Using Vehicle

 

(i)         Where MCS has a reasonable concern that a Contract Carrier’s Vehicle is not, or may not be, roadworthy or safe to perform the Cartage Work, MCS may direct the Contract Carrier to stop using the Vehicle (or any part of it) pending:

 

inspection and/or testing of the Vehicle; and/or

 

where necessary, the carrying out of any repairs and/or maintenance.

 

(ii)        MCS must not take any steps under clause 9(e)(i) until MCS has put its reasonable concern to the Contract Carrier.

 

(iii)       The Contract Carrier will not suffer any loss of remuneration where they are directed to stop using their Vehicle under this clause, and where the inspection and/or testing of the Vehicle proves that the Vehicle was roadworthy and/or safe to perform the Cartage Work.

 

(f)        Inspections and Tests

 

The Contract Carrier must make the Vehicle available for inspection or testing as and when reasonably required by MCS.

 

(g)        Communication and Related Technology

 

(i)         MCS may supply the Contract Carrier with communication and related technology for use in the Contract Carrier’s Vehicle.

 

(ii)        Where such communication and/or related technology is supplied by MCS:

 

(A)       MCS must install and maintain the communication and related technology required by MCS and the Contract Carrier must operate it efficiently as directed by MCS.

 

(B)       The Contract Carrier has full responsibility for the safe custody of the communication and related technology.

 

(C)       The Contract Carrier must:

 

not add to, alter or modify the communication and related technology;

 

indemnify MCS, and keep MCS indemnified at all times, against destruction or loss of the communication and related technology;

 

not pledge the credit of MCS in respect of, or create any lien upon, the communication and related technology; and

 

not without the prior written consent of MCS use the communication and related technology for anything but the Cartage Work.

 

(iii)       The Contract Carrier must stop using the communication and related technology (or any part of it) if MCS so directs pending any repairs, maintenance, inspection or testing.

 

(iv)       Immediately upon the ending or termination of any head contract under which the Contract Carrier performs the Cartage Work:

 

(A)       the Contract Carrier must return the communication and related technology to MCS in good order and condition, save for any fair wear and tear only; and

 

(B)       MCS must make good any repairs to the Contract Carrier’s Vehicle arising from the removal of the communication and related technology.

 

(v)        Where the Contract Carrier changes his/her vehicle within 12 months of the communications equipment being installed the cost of transferring the communications equipment shall be paid by the Contract Carrier to MCS or borne by the Contract Carrier by way of adjustment to the remuneration of the Contract Carrier.

 

(vi)       If the Contract Carrier provides equipment greater than the equipment MCS requires, the Contract Carrier will only be entitled to be paid the rate of remuneration applicable to the equipment MCS requires.

 

(vii)      If, in order to comply with any laws the Contract Carrier is required use certain technology, (for example electronic diaries), the cost of that technology will be met by the Contract Carrier.

 

(h)        Vehicles

 

(i)         MCS has the right to specify the Class of Vehicle used in the performance of Contracts of Carriage prior to the engagement of a Contract Carrier.

 

(ii)        If MCS reasonably believes that the Vehicle of the Contract Carrier is not suitable for undertaking the required Cartage Work, MCS has the right to require an upgrade  of the Contract Carrier’s Vehicle (which may include the purchase of a newer Vehicle) on two months written notice in the circumstances and any such direction to upgrade being set out in writing.

 

(iii)       The Contract Carrier must not replace the Vehicle used to perform Cartage Work without the prior written consent of MCS.

 

(iv)       MCS has the right to specify the class of the vehicle which it requires and the remuneration payable to the Contract Carrier shall be based on the vehicle so specified.

 

(v)        MCS has the right to specify more than one class of vehicle to be used in undertaking its work by different Contract Carriers engaged in the same yard even if such work is identical in nature.

 

(i)         Equipment

 

(i)         Any technology introduced by MCS and supplied to the Contract Carrier will be at the cost of MCS. The equipment shall remain the property of MCS and shall be returned by the Contract Carrier if they cease to work for MCS. The cost of removal of the equipment will be at the expense of MCS except as set out in clause (i)(ii).

 

(ii)        In the event that a Contract Carrier should leave within the probation period as set out in clause 12 the cost of removing equipment will be at the Contract Carriers expense.

 

(iii)       The Contract Carrier must make the vehicle available, at a mutually convenient time, for MCS to remove the equipment and comply with the clause 9(g)(iv). Should the vehicle not be made available then MCS shall be able to withhold the value of the equipment from the Contract Carriers final payment.

 

(iv)       Should the equipment be damaged during the course of the Contract Determination (apart from ordinary wear and tear), the Contract Carrier will be required to reimburse MCS for the equipment or MCS shall withhold the value of the equipment from the Contract Carrier from the next due payment.

 

(j)         New Sub-Contractors hired after the date of this document and replacement of vehicles

 

(i)         MCS has the right to specify the age and the Class of Vehicle used in the performance of Contracts of Carriage prior to the engagement of a Contract Carrier.

 

10.  Loading and Delivery

 

(a)        Report at Starting Place and Time

 

The Contract Carrier must report available for the Cartage Work with the Vehicle at the Starting Place.

 

(b)        Checking of Load

 

After loading the Vehicle and before leaving the loading place, the Contract Carrier must:

 

(i)         ensure that the load is secured; and

 

(ii)        immediately report to MCS if the Contract Carrier believes that the goods do not comply with the specification on the delivery docket or exceeds the maximum legal payload for the Vehicle.

 

(c)        Delivery

 

Immediately after checking the load the Contract Carrier must deliver the goods to whatever addresses MCS instructs using:

 

(d)        using the shortest/fastest, legal practicable route.

 

(e)        Unloading

 

The Contract Carrier must:

 

(i)         use every reasonable effort at the delivery site to obtain:

 

(A)       directions from the customer concerning the manner and position to unload the goods; and

 

(B)       from the customer the signatures required by MCS; and

 

(ii)        unload the goods at the delivery site in the manner and position reasonably directed by the customer.

 

(ii)        Unsafe Unloading

 

If the unloading of the goods at any delivery site will place the Driver in a position of imminent risk to their health and safety, the Contract Carrier must immediately notify MCS prior to unloading the goods and comply with any instructions given by MCS concerning the unloading of the goods.

 

Nothing in this clause will prevent the Contract Carrier from exercising their rights under applicable work health and safety legislation

 

(f)        Return

 

After completing the deliveries, the Contract Carrier must report to whatever site (if any) MCS instructs using the shortest practicable route or such route as directed by MCS from the final unloading site.

 

(g)        Custody

 

The Contract Carrier shall:

 

(i)         be responsible for the 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;

 

(ii)        in the case of pre-loaded Vehicles, be responsible for checking the load for safety and satisfactory method of loading; and

 

(iii)       exercise all reasonable care and diligence in the carriage and safe keeping of the goods in charge.

 

11.  Fatigue Management and Heavy Vehicle Compliance

 

(a)        Fatigue management and heavy vehicle compliance

 

Fatigue management and heavy vehicle compliance is principally regulated in NSW by the:

 

(i)         Heavy Vehicle National Law, and associated regulations;

 

(ii)        Work Health and Safety Act 2011 (NSW); and

 

(iii)       Transport Industry Mutual Responsibility Contract Determination.

 

(b)        Taking of Fatigue Breaks

 

Each Contract Carrier must take fatigue breaks, without payment, as required by law.

 

(c)        MCS and Contract Carriers must comply with all fatigue management and heavy vehicle compliance obligations that apply at any time during this Contract Determination.

 

12.  Uniforms

 

(a)        Supply of Uniform

 

If the Driver of the Contract Carrier’s Vehicle is required by MCS to wear a special uniform when undertaking Cartage Work for MCS, the uniform must be supplied by MCS at no cost to the Contract Carrier.

 

(b)        Obligation to wear

 

Where a uniform is so provided, the Contract Carrier must ensure that it is worn by the Driver at all times while undertaking Cartage Work for MCS.

 

(c)        Property

 

The uniform remains the property of MCS.

 

(d)        Quantity

 

MCS must provide a sufficient number of uniform articles to enable the Contract Carrier to wear a clean uniform at the start of each Cartage Working day.

 

(e)        Replacement

 

An item forming part of the uniform must be replaced by MCS when required by fair wear and tear, provided that should loss or damage to an item forming part of the uniform occur due to the negligence of the Contract Carrier, the item must be repaired or replaced by the Contract Carrier at the Contract Carrier’s cost.

 

13.  Lunch Break

 

(a)        Entitlement

 

Each Contract Carrier is entitled to and may take a 30 minute unpaid lunch break on each day Cartage Work is performed for MCS for more than 4 hours provided that where it is safe and reasonably practicable to do so, the Contract Carrier must take the lunch break in conjunction with a fatigue break.

 

(b)        Reporting

 

A Contract Carrier who ceases Cartage Work for a lunch or fatigue break in accordance with clause 11(a) must report that fact to MCS.

 

(c)        MCS may direct the times that lunch breaks are taken to suit operational needs.

 

14.  Annual Leave

 

(a)        Entitlement

 

A Regular Contract Carrier may take four weeks' annual leave without payment.

 

(b)        When the Entitlement Falls Due

 

The leave entitlement falls due each year on the anniversary of the commencement date of the first Contract of Carriage between the Contract Carrier and MCS.

 

(c)        Period to Take Leave

 

Such leave is to be taken by the Contract Carrier within 6 months of the leave falling due (or within such extended time as the Contract Carrier and MCS may agree) and at a time mutually convenient to the Contract Carrier and MCS.

 

(c)        Utilisation of Vehicle

 

To avoid any doubt, and unless otherwise agreed between the parties, during any period of annual leave the Contract Carrier has no obligation to present their Vehicle to MCS for Cartage Work.

 

(e)        Lapse of Entitlement

 

The Contract Carrier may accrue up to 8 weeks’ leave. If leave is not taken within the time provided for in this clause, the entitlement to accrued leave in excess of 8 weeks will lapse.

 

15.  Contract Carrier Obligations

 

(a)        Core Obligations

 

The Contract Carrier must perform the Cartage Work and do everything connected with it:

 

(i)         with due care and skill and in a proper, co-operative and professional manner;

 

(ii)        safely, and in accordance with MCS's safety requirements including providing all personal protection equipment;

 

(iii)       in accordance with the day to day operational directions given by MCS;

 

(iv)       in accordance with any lawful and reasonable direction, policy, procedure or specifications provided by MCS;

 

(v)        without jeopardising or damaging MCS's business; and

 

(vi)       in compliance with all relevant laws.

 

(b)        Compliance with Employment Laws

 

The Contract Carrier must comply with the provisions of any relevant employment law, including but not limited to laws concerning discrimination, bullying and harassment, health and safety, income tax, workers’ compensation, superannuation, annual leave, long service leave or any award, order, determination or agreement of a competent industrial tribunal.

 

(c)        Administration

 

The Contract Carrier must:

 

(i)         return to MCS all delivery dockets, daily Cartage Work sheets or other records required by MCS as and when required;

 

(ii)        maintain up to date and accurate log books as required under any relevant law and/or by MCS and make these available for inspection by MCS on request;

 

(iii)       ensure that the Driver maintains a system verifying Vehicle maintenance;

 

(iv)       keep and retain for seven years comprehensive records in relation to the Cartage Work, including the records in subparagraphs (ii) and (iii) above; and

 

(v)        ensure that a copy of the records in subparagraphs (ii), (iii) and (iv) are available for inspection at any time for audit purposes.

 

Notation: Any written material to be provided to MCS in accordance with this clause must be appropriate and economical and designed to meet the requirements of this clause.

 

(d)        Medicals

 

(i)         The Contract Carrier must ensure that the Driver is at all times medically fit to perform the Cartage Work.

 

(ii)        Where MCS has a reasonable concern that the Driver is not medically fit to perform the Cartage Work, MCS may require and direct the Driver to:

 

(A)       furnish particulars and/or medical evidence affirming the Driver’s fitness to undertake Cartage Work; and/or

 

(B)       on reasonable terms, attend a medical examination to confirm their fitness (such direction may include the choice of medical practitioner).

 

(iii)       MCS must not take any steps under clause 15(d)(ii) until MCS has put its concerns to the Contract Carrier in writing.

 

(iv)       If the Driver attends a medical practitioner directed by MCS, MCS will pay the medical fees associated with the attendance.

 

(v)        The Driver will not suffer any loss of remuneration as a result of being directed to attend a medical examination under this clause, unless the medical examination demonstrates that the Driver was not medically fit to perform the Cartage Work.

 

(e)        Alcohol and Other Drugs Polices and Programs

 

Where MCS has in place a drug and alcohol policy and/or program, applying to its employees and contractors, the Contract Carrier must ensure that the Driver participates in any testing required by the policy and/or program.

 

(f)        No One Else to Drive or Travel in the Vehicle

 

The Contract Carrier must:

 

(i)         only use a Driver who is approved by MCS, with such approval not being unreasonably withheld;

 

(ii)        make sure that no one except the approved Driver drives or otherwise operates the Vehicle for the Cartage Work; and

 

(iii)       make sure that no one except the approved Driver travels in the Vehicle.

 

(g)        Valid Driving License and Permits

 

The Contract Carrier must:

 

(i)         make sure that the approved Driver is a fit and proper person and is at all times the holder of a current:

 

(A)       valid driver's licence appropriately endorsed or issued in respect of their Vehicle; and

 

(B)       valid licence or permit of any other kind needed from time to time to perform the Cartage Work including a Maritime Security Instrument Card;

 

(ii)        immediately notify MCS if a licence or permit is cancelled or suspended for any reason;

 

(iii)       within 3 days of any request present any such license, permit and/or RTA/RMA demerit register to MCS as evidence of the Contract Carriers continued ability to be able to perform work.

 

(iv)       Supply at the request of MCS, 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/her.

 

(h)        Gifts

 

A Contract Carrier must not accept any gift from any customer or business involved with MCS nor provide any gifts to any businesses or personnel employed by or associated with MCS.

 

(i)         Attendance

 

A Contract Carrier must report, as early as possible to MCS any non-attendance at the starting place by normal starting time on each of the days on which they may be required to undertake work and is unable to attend.

 

(j)         Damage

 

The Contract Carrier must:

 

(i)         Pay to MCS the amount of any claim, loss or expense arising out of damage caused to MCS, customer or third party property. This does not apply if the Contract Carrier or any person for whose actions s/he is responsible is not at fault.

 

(ii)        Immediately report any accident to the operations staff of MCS and attend to any legal requirements at the scene of the accident.

 

(iii)       Immediately report to MCS any damage to MCS, customer or third party property.

 

(k)        Fines/PBLIS

 

The Contract Carrier will be liable for all fines and penalties including PBLIS penalties charged to MCS. Any PBLIS penalties will be deducted from any amounts due to the Contract Carrier.

 

If the Contract Carrier wishes to challenge the decision to deduct a PBLIS penalty notice they must issue a written appeal within 7 days of the deduction being made. MCS will meet with the Contract Carrier to discuss the challenge and will make a final determination within 14 days of the deduction.

 

(l)         Confidentiality

 

The Contract Carrier must not disclose confidential or commercially sensitive information relating to MCS.

 

16.  Obligations of MCS

 

MCS must:

 

(a)        arrange whenever practicable for a representative of MCS to attend accidents involving substantial load or equipment damage or personal injury;

 

(b)        advise Contract Carriers as early as possible of urgent or special delivery instructions arranged for particular work or particular goods;

 

(c)        where goods of a dangerous or hazardous nature are to be carried, notify the Contract Carrier of the nature of such goods and comply with all relevant requirements of the Dangerous Goods (Road and Rail) Act, accompanying Regulations and its related Codes of Practice;

 

(d)        pay the Contract Carrier any undisputed amount set out in a valid taxation invoice provided by the Contract Carrier, or generated for the Contract Carrier, for the Cartage Work performed, within 30 days of the date of receipt by MCS of the invoice;

 

(e)        comply with any laws affecting MCS’s Cartage Work including licensing, road transport, fatigue management and work health and safety laws; and

 

(f)        provide to each Contract Carrier a Cartage Rate Schedule prior to commencing to perform Cartage Work and whenever there is a change to the basis of calculation of the Cartage Rates and/or a change to the Cartage Rates.

 

17.  Termination

 

(a)        Where a Contract Carrier commits misconduct or is in breach of this determination he may be terminated summarily by MCS. An inquiry, if requested, will be held thereafter within one normal work day by MCS, delegate and, if available, a representative of the union.

 

(b)        Any other termination shall be on the basis of "last on-first off" for Contract Carriers operating vehicles of a particular class of vehicle.

 

(c)        The following notice is required to be given by MCS or the Contract Carrier to terminate the engagement between the parties for any reason except in the case of breach of this Determination or misconduct in which case no notice is required:

 

 

(d)        MCS may elect at its discretion to pay the Contract Carrier in lieu of the notice period above subject to MCS paying the Contract Carrier compensation equivalent to the amount of notice not provided. The calculation of notice in lieu will be the average of the previous 12 month

 

(e)        In the event of redundancy the above notice periods will apply.

 

(f)        The Contract Carrier, upon termination, will promptly return to MCS all equipment and signs supplied by MCS.

 

18.  Insurances

 

(a)        Insurances

 

Prior to commencing any Cartage Work, the Contract Carrier must obtain, and maintain current at all relevant times, the following insurances at the Contract Carrier’s expense:

 

(i)         comprehensive and third party motor Vehicle insurance covering personal injury and property damage arising from the use of the Contract Carrier’s Vehicle or other mobile equipment, including compliance with any statutory requirements, of not less than $20,000,000 (or such other amount as MCS may require from time to time) for each and every occurrence;

 

(ii)        property insurance covering the full replacement value of the Contract Carrier’s Vehicle;

 

(iii)       public and products liability insurance written on an occurrence basis covering the legal liability of the Contract Carrier and the Contract Carrier’s employees and agents (the "Insured’s") to any third parties for bodily injury and/or property damage arising from acts or omissions of the Insureds in the course of, or arising from, the performance of the Cartage Works by the Contract Carrier or on the Contract Carrier’s behalf of not less than $20,000,000 (or such other amount as MCS may require from time to time) for each and every occurrence;

 

(iv)       workers’ compensation insurance as required by any relevant law;

 

(v)        trailer liability insurance including insurance for trailers not owned by the Contract Carrier but used by them;

 

(vi)       carriers liability insurance of not less than $500,000 (or such other amount as MCS may require from time to time) for each and every occurrence; and

 

(vii)      any other insurances required by law or regarded as sound commercial practice.

 

(b)        Endorsements

 

The Contract Carrier must ensure that, in respect of the insurance policies taken out, they contain clauses, endorsements or stipulations as reasonably required by MCS.

 

(c)        Co-Operation

 

The Contract Carrier must:

 

(i)         not do, or omit to do, anything which might vitiate, impair or derogate from the cover under any insurance policy or other cover or which might prejudice any claim under any policy or other cover;

 

(ii)        fully co-operate with MCS in relation to a claim under the insurances; and

 

(iii)       initiate a claim under their own insurance policy prior to attempting to cliam coverage under any policy held by MCS;

 

(d)        Provision of Currency

 

(i)         The Contract Carrier must upon MCS’s request provide to MCS within 24 hours of such request, certificates of currency evidencing the existence of the policies required to be effected under this clause and the certificates of currency must, as a minimum, show the insurer’s name, policy number and policy expiry date.

 

(ii)        If the certificates of currency are not provided within the requisite time the Contract Carrier will not be permitted to work. If the Contract Carrier is subsequently provides the certificates of currency MCS will not be required to compensate the Contract Carrier any loss of remuneration.

 

19.  Allocation of Work and Rostering

 

(a)        Allocation of Cartage Work

 

MCS must allocate Cartage Work to Contract Carriers transparently, reasonably and lawfully.

 

(b)        Rostering

 

MCS must roster Contract Carriers to perform work (including rostering on, return load and rostering off) transparently, reasonably and lawfully.

 

20.  Fleet Mix Change

 

Changing Fleet Mix - Mandatory Consultation

 

(a)        This clause applies where MCS has made a definite decision to make a fleet mix change that is likely to have significant effects on Contract Carriers.

 

(b)        If relevant Contract Carrier appoints, or relevant Contract Carriers appoint, a representative for the purposes of consultation and the Contract Carrier or Contract Carriers advise MCS of the identity of the representative MCS must recognise the representative.

 

(c)        a relevant Contract Carrier appoints, or relevant Contract Carriers appoint, a representative for the purposes of consultation and the Contract Carrier or Contract Carriers advise MCS of the identity of the representative MCS must recognise the representative.

 

(d)        As soon as practicable after making its decision, MCS must:

 

(i)         discuss with the relevant Contract Carriers:

 

(A)       the proposed change to the fleet mix; and

 

(B)       the effect the change is likely to have on the Contract Carriers; and

 

(C)       measures MCS is taking to avert or mitigate the adverse effect of the change on the Contract Carriers; and

 

(ii)        for the purposes of the discussion, provide in writing to the relevant Contract Carriers:

 

(A)       all relevant information about the change including the nature of the change proposed; and

 

(B)       information about the expected effects of the change on the Contract Carriers; and

 

(C)       any other matters likely to affect the Contract Carriers.

 

(e)        However, MCS is not required to disclose confidential or commercially sensitive information to the relevant Contract Carriers.

 

(f)        MCS must give prompt and genuine consideration to matters raised about the change by the relevant Contract Carriers.

 

(g)        In this clause, a "fleet mix change" arises:

 

(i)         when MCS decides to introduce a new transport type into their fleet being one or more of the following transport types:

 

(A)       Contract Carriers; or

 

(B)       Drivers employed by MCS; or

 

(C)       third party transport providers;

 

(ii)        when MCS introduces into their fleet a new Vehicle configuration.

 

21.  Selling of Vehicles

 

No circumstances shall exist where a Vehicle is sold with Cartage Work.

 

22.  Supervision of Personnel

 

The Contract Carrier must ensure that each and all of its Drivers:

 

(a)        performs the Work and does everything connected with it as is required of the Contract Carrier by this Determination; and

 

(b)        does not engage in any acts or omissions that give rise to a breach by the Contract Carrier of this Determination.

 

23.  Rates and Review

 

(a)        The rates for the FCL fleet and increases are outlined in schedule 1.

 

(b)        The rates for the stack run fleet are outlined in schedule 2.

 

(c)        The fleet make up is outlined in schedule 3.

 

(d)        MCS will make fuel available to sub-contractors at the Terminal Gate Price as listed on the API website +4 cents per litre. The provision of fuel at +4 cents will replace any fuel levy payable by MCS.

 

(e)        Clause 23(d) will come into effect 4 months from the approval of the Determination by the IRC.

 

24.  Contract Carriers

 

All Contract Carriers engaged by MCS must be incorporated entities. If any Contract Carrier is not a corporation he/she must establish a corporate entity within 6 months of the approval of this Determination.

 

25.  Disputes Procedure

 

(a)        Application of Procedure

 

Any dispute that arises under this Determination between a Contract Carrier and MCS must be dealt with in accordance with this clause.

 

(b)        Appointment of Representative

 

A Contract Carrier who is a party to a dispute may appoint a representative for the purposes of this clause which may include the Union.

 

(c)        Procedure

 

In the first instance, the parties to the dispute must try to resolve the dispute at the workplace level.

 

(d)        Notification to Commission

 

If the dispute remains unresolved it may be referred to the IRC.

 

(e)        Continue to Perform Cartage Work

 

Whilst the parties are trying to resolve the dispute using the procedure set out in this clause:

 

(iii)       Contract Carrier must continue to perform Cartage Work as they normally would do unless they hold a reasonable concern about an imminent risk to their health or safety; and

 

(iv)       Contract Carrier must comply with a direction given by their Principal Contractor to perform other available Cartage Work, unless:

 

(A)       the Cartage Work is not safe; or

 

(B)       applicable workplace health and safety legislation would not permit the Cartage Work to be performed; or

 

(C)       the Cartage Work is not appropriate for the Contract Carrier to perform; or

 

(D)       there are other reasonable grounds for the Contract Carrier to refuse to comply with the direction.

 

26.  Union Delegates

 

(a)        Appointment

 

A Contract Carrier appointed Delegate in a yard in which they are Contract Carrier must, upon notification to their Principal Contractor, be recognised as the accredited representative of the Union.

 

(b)        Opportunity to Meet

 

An accredited Delegate must be allowed a reasonable opportunity to meet the relevant manager of MCS and Contract Carriers to discuss matters affecting Contract Carriers whom they represent.

 

(c)        Use of Notice Board

 

Accredited Union Delegates must be permitted to put Union notices on a notice board, signed or countersigned by the representative posting it.

 

(d)        Delegates Leave

 

Provision exists for 5 paid (8 hour) days PA at the hourly award rate (RT&D 2010) for a maximum of 2 delegates (Union Approved), for the specific purpose of training, conference attendance and negotiations.  Notice of 21 days is to be provided unless mutually agreed to by both the company and the Delegates.

 

27.  Record Keeping

 

(a)        Obligations

 

MCS must record either in documentary form or electronic form, the following information for each Contract Carrier:

 

(i)         any Cartage Rate Schedule;

 

(ii)        start and finish times;

 

(iii)       hours worked per day;

 

(iv)       kilometres travelled per day;

 

(v)        Start and Finish Place;

 

(vi)       remuneration paid;

 

(vii)      a copy of any written contract entered into with the Contract Carrier;

 

(viii)     all trip schedules and driver rosters;

 

(ix)       all safe driving plans and risk assessments that relate to the fatigue of road transport drivers;

 

(x)        all reported breaches and suspected breaches of the fatigue management law, including breaches and suspected breaches identified by MCS; and

 

(xi)       all breaches of fatigue management laws investigated by MCS, the outcome and any remedial action taken.

 

(b)        Maintenance of Records

 

MCS must maintain all the records arising from clause 24(a) for a period of seven years.

 

(c)        Contract Carrier to Assist

 

(i)         A Contract Carrier must do all things reasonably directed by MCS to gather and record the information referred to in clause 24(a).

 

(ii)        MCS must not be liable for breach of this clause because of the failure of a Contract Carrier to comply with clause (i).

 

28.  Productivity Improvements

 

(a)        MCS and the Contract Carriers will work towards continual productivity improvements.

 

(b)        The Contract Carrier will make contact with MCS if there are significant delays at any loading or unloading point including any port or terminal.

 

29.  Compliance With Work, Road and Vehicle, Health and Safety

 

(a)        The Contract Carrier must at all times ensure their vehicle is roadworthy and presentable.

 

(b)        In relation to work, road and vehicle health and safety, the Contract Carrier agrees:

 

(i)         to comply with all applicable work, road and vehicle health and safety legislation, regulation, codes of practice, management plans and the requirements placed on the Contract carrier by any related policies and procedures of MCS (such policies and procedures are not incorporated into this Determination);

 

(ii)        to complete all induction and other training requested by MCS;

 

(iii)       to take all reasonable steps to safeguard the safety of the Contract Carrier and of others and immediately notify MCS of any work, road and/or vehicle health and safety or other risks; and

 

(iv)       to only perform those tasks that the Contract Carrier is skilled and capable of performing.

 

(c)        Without limitation the laws referred to above include the Work Health and Safety Act 2011 (NSW), the Road Safety and Remuneration Act 2012 (Cth), the Fair Work Act 2009 )(Cth), the Industrial Relations Act 1996 (NSW) and the Heavy Vehicle National Law (NSW).

 

(d)        Nothing in this clause will prevent the Contract Carrier from exercising its rights under the Work Health and Safety Act 2011 (NSW).

 

30.  Redundancy

 

(a)        In the event a Contract Carriers engagement terminates due to redundancy this Determination will apply in place of the Transport Industry - Redundancy (State) Contract Determination.

 

(b)        The parties will apply schedule 4 in the event redundancies occur.

 

 

 

P. J. NEWALL, Commissioner.

 

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Printed by the authority of the Industrial Registrar.