Part 2Part 2 Contract determinations
311 Applications to exercise functions
(1) An application for the exercise of a function of the Commission under this Part may be made by:(a) a bailor under a contract of bailment, if the average number of different bailees with whom the bailor entered into contracts of bailment on each working day during the period of one month that last preceded the making of the application was not less than 10, or(b) a principal contractor under a contract of carriage, if the average number of different carriers with whom the principal contractor entered into contracts of carriage on each working day during the period of one month that last preceded the making of the application was not less than 10, or(c) an association of employing contractors, or any other association, which represents bailors or principal contractors who are, or some of whom are, parties to contracts of the class concerned, or(d) an association of contract drivers or an association of contract carriers that represents bailees or carriers who are, or some of whom are, parties to contracts of the class concerned.(2) An application must be in such form, and contain such particulars, as are required by the rules of the Commission.
312 Jurisdiction of Commission with respect to contracts of bailment
(1) The Commission may inquire into any matter arising under contracts of bailment and may make a contract determination with respect to any of the following matters under those contracts:(a) the remuneration of bailees under those contracts (including by way of a minimum rate of commission expressed as a percentage of the chargeable fares earned),(b) the amounts (if any) to be paid by the bailor to the bailee as attendance money when the bailee is required to attend at a place where the public vehicle concerned is to be bailed to the bailee but no such bailment takes place and for special duties such as preparing and driving a public vehicle to a registering or licensing authority for inspection,(c) annual or other holidays, sick leave and long service leave for the bailee or payments to the bailee instead of any such leave,(d) the minimum number of hours per day, per week or for any longer period during which the bailor is to bail the vehicle, if drivable, to the bailee,(e) if satisfied that it is imperative to do so in the interest of bailors, bailees and the public—the maximum number of hours per day, per week or for any longer period that a bailee may drive a public vehicle,(f) other conditions.(2) Subsection (1) (a) does not authorise the Commission to fix penalty rates of commission in relation to excess hours of work or work on specified days but, in fixing a rate of commission under subsection (1) (a), the Commission may take into account all the circumstances in which a public vehicle is driven for reward.(3) The Commission may, after inquiry, make a contract determination with respect to the records to be kept by bailors in respect of contracts of bailment. Any such determination is subject to any regulations with respect to the matter.
313 Jurisdiction of Commission with respect to contracts of carriage
(1) The Commission may inquire into any matter arising under contracts of carriage and may make a contract determination with respect to remuneration of the carrier, and any condition, under such a contract.(2) In exercising its jurisdiction under this section, the Commission may:(a) include in the remuneration of persons affected by its determination such allowance instead of annual or other holidays, sick leave or long service leave as it thinks fit, or(b) otherwise make provision for all or any of those matters.(3) The Commission may, after inquiry, make a contract determination with respect to the records to be kept by principal contractors in respect of contracts of carriage.
314 Jurisdiction with respect to reinstatement of contracts
(1) The Commission may, after inquiry, make a contract determination with respect to the reinstatement of a contract of bailment or contract of carriage that has terminated.(2) Reinstatement of a contract includes re-engagement under a similar contract.(3) A contract determination under this section may be made on such terms and conditions as the Commission thinks fit, including provision for any period after the termination of the contract to be treated as a period of engagement under relevant contracts.(4) If the Commission considers that it would be impracticable to make a determination for reinstatement, the Commission may order the bailor to pay to the driver, or the principal contractor to pay to the carrier, an amount of compensation not exceeding the amount of remuneration of the driver or carrier under relevant contracts during the period of 6 months immediately before the termination of the contract.(5) When assessing any compensation payable, the Commission is to take into account whether the driver or carrier made a reasonable attempt to find alternative engagements and the remuneration received in alternative engagements, or that would have been payable if the driver or carrier had succeeded in obtaining alternative engagements.(6) A contract determination under this section takes effect when it is made, and is not required to have a specified term or to be published on the NSW industrial relations website.
315 Conference to precede contract determination
(1) When application is made to the Commission to exercise its jurisdiction under this Part, the Commission must, before it considers the application, summon to attend and confer with the Commission the applicant and such other persons served with the application as the Commission may direct.(2) At the conference, the Commission is to:(a) ascertain which of the matters with which the application is concerned are in dispute and which are not, and(b) ascertain whether there are any special circumstances or problems existing with respect to contracts of the class with which the application is concerned, and(c) take all reasonable steps to effect an amicable settlement of any matters in dispute.(3) After conferring on an application, the Commission may:(a) dismiss the application, or(b) proceed to hear the application or specify a time and place at which it will be heard, or(c) adjourn the application for such period or periods as it thinks fit.(4) Before hearing an application, the Commission may require service of the application on such persons as it may direct.
316 Making of contract determinations
(1) After hearing an application for it to exercise its jurisdiction under this Part, the Commission may:(a) dismiss the application, or(b) make a contract determination with respect to the application.(2) When the Commission makes a contract determination:(a) it may defer the operation of the determination wholly or in part for such period or periods as it thinks fit, and(b) it must specify the class or classes of contracts in respect of which the determination is to operate (including classes defined by reference to a named bailor or principal contractor).
317 Binding force of determination
(1) Subject to such exemptions and conditions as the Commission may direct, a contract determination is binding on all bailors and bailees or all principal contractors and carriers who are parties to contracts of the class to which the determination relates as the Commission may direct.(2) A contract determination that is binding on a carrier which is a corporation is, except to the extent that the determination otherwise provides, also binding on:(a) any director of the corporation, or any member of the family of any such director, who personally does work under a contract to which the determination relates and to which the corporation is a party, and(b) any holder of shares in the corporation who personally does work under any such contract if that holder, together with the members of his or her family, has a controlling interest in the corporation, and(c) any member of the family of the holder of shares in the corporation who personally does work under any such contract if that holder, together with the members of his or her family, has a controlling interest in the corporation.
318 Commencement of determination
(1) A contract determination comes into force on the date specified by the Commission.(2) However, legal proceedings relating to the enforcement of the determination cannot be commenced until the expiration of 7 days after the day on which it is published on the NSW industrial relations website.(3) A contract determination may be expressed to apply retrospectively, but not earlier than the date on which:(a) application for the determination was lodged with the Industrial Registrar or the Commission initiated proceedings for the determination, or(b) the Commission initiated proceedings for the determination, or(c) the dispute giving rise to the determination was notified to the Commission,as the case requires.Note. Section 190 enables the Full Bench or a Presidential Member, on such terms as it thinks fit, to stay the operation of the whole or any part of a contract determination for the purposes of appeal pending determination of the appeal or further order of the Commission.
(1) A contract determination applies for the period specified in it as its nominal term and, after that period, until rescinded by the Commission. However, the Commission may specify that the determination ceases to apply at the end of its nominal term.(2) The nominal term of a determination must not be more than 3 years.
320 Variation or rescission of determinations
The Commission may vary or rescind a contract determination and, when it rescinds a determination, it may replace that determination with a new determination.
321 Exemptions from determinations
(1) The Commission may, on application, grant an exemption from the whole or any part of a contract determination if satisfied it is not contrary to the public interest.(2) An exemption may be granted for a period not exceeding 3 years at any one time.(3) The Commission may, on application or on its own initiative, review any exemption, and may confirm, vary or revoke the exemption.